WILLIAM EUGENE SHANNON
Applicants
– and –
ONTARIO MINISTER OF CONSUMER AND
COMMERCIAL RELATIONS
Respondent
– and –
ATTORNEY GENERAL OF CANADA and
THE EVANGELICAL FELLOWSHIP OF CANADA
Intervenors
FACTUM OF THE INTERVENOR
THE EVANGELICAL FELLOWSHIP OF CANADA
PART I – THE FACTS
Nature of the Appeal
1. In this appeal, the appellants contend that at issue is whether the common law rule that marriage can occur only between a man and a woman is unconstitutional. The real issue in this appeal is whether the courts should fundamentally alter society’s concept of marriage to include homosexual relationships.
Notice of appeal, Appeal Book vol.1, tab 1, pp.1-2.
2. For reasons released March 15, 1993, the Divisional Court (Greer J. dissenting) dismissed an application for judicial review from the refusal of the Ottawa City Clerk’s office to issue a marriage license to the initial applicants, both of whom are male.
Reasons for judgment of Southey J., Appeal Book, vol.1, tab 3, pp.1-2 and 14-15.
3. In dismissing the application for judicial review, the majority of the Divisional Court concluded that marriage at common law is limited to two persons of the opposite sex. The majority also concluded that the common law definition of marriage does not discriminate against homosexuals.
Reasons for judgment of Southey J., Appeal Book, vol.1, tab 3, pp.1-2 and 14-15.
4. This application is not a “benefits” case. This is not a case in which the applicants (appellants) sought to obtain through the courts the same benefits as parties to a marriage.
Reasons for judgment of Southey J., Appeal Book, vol.1, tab 3, p.15.
Response to the Factual Summary in the Factum of the Appellants
5. The intervenor The Evangelical Fellowship of Canada (”EFC”) (which is a national association of Protestant churches that represents 27 Christian denominations and approximately 100 other organizations) generally agrees with the summary of the facts contained in paragraphs 5 to 8 of the facturn of the appellants.
6. The EFC does not accept the summary of the facts contained in paragraphs 9 to 19 of the factum of the appellants. These paragraphs consist principally of statements of belief, lay opinion and law.
The Initial Applicants (Appellants)
7. The basic facts underlying this appeal are relatively simple. The initial applicants, Todd Layland (”Layland”) and Pierre Beaulne (”Beaulne”), are male homosexuals. On or about August 1, 1991, Layland and Beaulne began to co-habit in a homosexual relationship.
Reasons for judgment of Southey I., Appeal Book, vol.3, tab 1, pp.1-2.
Affidavit of Layland sworn March 3, 1992, Appeal Book, vol.1, tab 6, p.1.
Affidavit of Beaulne sworn March 3, 1992, Appeal Book, vol.1, tab 9, p.1.
8. In their affidavits, Layland and Beaulne professed love for each other and indicated that they wished to spend the rest of their lives together. For these reasons, they deposed that they wished to be married.
Affidavit of Layland sworn March 3, 1992, Appeal Book, vol.1, tab 6, p.1.
Affidavit of Layland sworn June 29, 1992, Appeal Book, vol.1, tab 7, p.2.
Affidavit of Beaulne sworn March 3, 1992, Appeal Book, vol.1, tab 9, p.1.
Affidavit of Beaulne sworn July 2, 1992, Appeal Book, vol.1, tab 10, p.2.
Request for the Issuance of a Marriage License
9. On January 16, 1992, Beaulne and Layland attended at the office of the City Clerk in Ot~wa. Layland and Beaulne submitted a marriage license application.
Reasons for judgment of Southey J., Appeal Book, vol.1, tab 3, pp.1-2.
Affidavit of Layland sworn March 3, 1992, Appeal Book, vol.1, tab 6, pp.1-2.
Affidavit of Beaulne sworn March 3, 1992, Appeal Book, vol.1, tab 9, pp.1-2.
10. An employee of the Ottawa City Clerk’s office refused to accept Layland’s and Beaulne’s marriage license application. The applicants were advised by the employee “that same-sex marriage is ‘illegal in Canada”’.
Reasons for judgment of Southey J., Appeal Book, vol.1, tab 3, pp.1-2.
Affidavit of Layland sworn March 3, 1992, Appeal Book, vol.1, tab 6, p.2.
Affidavit of Beaulne sworn March 3, 1992, Appeal Book, vol.1, tab 9, p.2.
11. In response to this refusal, Layland and Beaulne commenced an application for judicial review.
Notice of application, Appeal Book, vol.1, tab 5.
Addition of Two New Applicants (Appellants)
12. In early 1993, before the reasons of the Divisional Court were released, the applicants Layland and Beaulne ceased to have a relationship with each other. Subsequently, Charles Schouwerwou and William Shannon were added as applicants for the purpose of this appeal, by order of the Court of Appeal for Ontario dated June 7, 1993.
Order dated June 7, 1993, Appeal Book, vol.2, tab 3, pp.1-2.
Affidavit of Layland sworn April 21, 1993, Appeal Book, vol. 1, tab 8, pp.1-3.
Affidavit of Beaulne sworn April 29, 1993, Appeal Book, vol.1, tab 11, pp.1-3.
Findings and Conclusions of the Divisional Court
(a) The Majority Reasons of Southey and Sirois JJ.
13. In dismissing the application for judicial review, the majority of the Divisional Court (Southey and Sirois JJ.) concluded that although there is no statutory provision that defines marriage to exclude the union of persons of the same sex:
“I find that under the common law of Canada applicable to Ontario a valid marriage can take place only between a man and a woman, and that persons of the same sex do not have the capacity to marry one another”.
Reasons for judgment of Southey J., Appeal Book, vol.1, tab 3, pp.3,7.
14. After concluding that at common law a marriage can take place only between persons of the opposite sex, the majority concluded that the common law rule is not discriminatory within the meaning of s.15 of the Canadian Charter of Rights and Freedoms (the “Charter”). In this regard the majority said:
“One of the principal purposes of the institution of marriage is the founding and maintaining of families in which children will be produced and cared for, a procedure which is necessary for the continuance of the species (see the authorities in the passage from North v. Matheson quoted above).
That principal purpose of marriage cannot, as a general rule, be achieved in a homosexual union because of the biological limitations of such a union. It is this reality that is recognized in the limitation of marriage to persons of opposite sex.
It is true that some married couples are unable or unwilling to have children, and that the incapacity or unwillingness to procreate is not a bar to marriage or a ground for divorce. Despite these circumstances in which a marriage will be childless, the institution of marriage is intended by the state, by religions and by society to encourage the procreation of children.
The law does not prohibit marriage by homosexuals, provided it takes place between persons of the opposite sex. Some homosexuals do marry. The fact that many homosexuals do not choose to marry, because they do not want unions with persons of the opposite sex, is the result of their own preferences, not a requirement of the law. Unions of persons of the same sex are not “marriages”, because of the definition of marriage. The applicants are, in effect, seeking to use s.15 of the Charter to bring about a change in the definition of marriage. I do not think the Charter has that effect.
In my judgment, the common law limitation of marriage to persons of opposite sex does not constitute discrimination against the applicants contrary to 5. 15 of the Charter.
Whether parties to homosexual unions should receive the same benefits as parties to a marriage, without discrimination because of the nature of their unions, is another question.”
Reasons for judgment of Southey J., Appeal Book, vol.1, tab 3, pp.13-15.
(b) The Dissenting Reasons of Greer J.
15. In her dissenting reasons, Greer J. concluded:
“that restricting marriages to heterosexual couples infringes and violates the Applicants’ Section 15(1) Charter rights and that such violation cannot be justified under Section 1 of the Charter. I also agree with the position of the Church that there is no common law prohibition against same sex marriages in Canada”.
Reasons for judgment of Greer J., Appeal Book, vol.1, tab 4, p.4.
16. In reaching this conclusion, Greer J. acknowledged that her disposition of the application was premised on an expansion of the common law definition of marriage to encompass homosexual relationships.
Reasons for judgment of Greer J., Appeal Book, vol.1, tab 4, pp. 12and21to28.
PART II – ISSUES AND LAW
Issue 1 The Concept of Marriage at Common Law
(a) “Marriage” is Defined at Common Law
17. Pursuant to s.91(26) of the Constitution Act, 1867, legislative authority over marriage falls within the exclusive jurisdiction of Parliament. Pursuant to s.92(12) of the Constitution Act, 1867, provincial legislatures have jurisdiction over the solemnization of marriage in the province.
Ss.91 and 92, Constitution Act, 1867.
18. Neither the Federal Marriage (Prohibited Degrees) Act nor the Ontario Marriage Act define marriage as involving the union of two individuals of the opposite sex. This rule is, instead, part of the federal common law.
Marriage (Prohibited Degrees) Act, S.C. 1990, c. 46.
Marriage Act, R.S.O. 1990, c. M.3.
Reasons for judgment of Southey J., Appeal Book, vol.1, tab 3, p. 3.
19. Universal acceptance that marriage is a sexual relationship that involves the union of a man and woman can be seen in a number of contexts. Each of these contexts is considered below.
(b) DictionaryDefinitions of Marriage
20. As a starting point, it is useful to consider dictionary definitions of marriage. These definitions, which are rooted in the common law and reflect society’s concept of marriage, consistently define marriage to involve the union of a man and woman:
“marriage: condition of man and woman legally united for purpose of living together and usu. procreating lawful offspring; act or ceremony or procedure establishing this condition.”
The Concise Oxford Dictionary (7th), p.620.
“Marriage. Legal union of one man and one woman as husband and wife. Singer v. Hara, 11 Wash.App. 247, 522 P.2d 1187, 1193. Marriage, as distinguished from the agreement to marry and from the act of becoming married, is the legal status, condition, or relation of one man and one woman united in law for life, or until divorced, for the discharge to each other and the community of the duties legaliy incumbent on those whose association is founded on the distinction of sex. A contract, according to the form prescribed by law, by which a man and woman capable of entering into such contract, mutually engage with each other to live their whole lives (or until divorced) together in state of union which ought to exist between a husband and wife. The word also signifies the act, ceremony, or formal proceeding by which persons take each other for husband and wife.”
Black’s Law Dictionary (5th), pp.876-877.
“marriage: a the state of being united to a person of the opposite sex as husband and wife b: the mutual relation of husband and wife c: the institution whereby men and women are joined in a special kind of social and legal dependence for the purpose of founding and maintaining a family.”
Webster’s Third New International Dictionary, p.1384.
“marriage: 1.a. The state of being husband and wife; wedlock. b. The legal union of a man and woman as husband and wife. 2. The act of marrying or the ceremony of being rnarried; a wedding.”
The American Heritage Dictionary of the English Language p.801.
(c) Marriage in Relation to Polygamy
21. The early common law cases defining marriage arose in the context of polygamous relationships. In these cases, the courts concluded that marriage involves the voluntary union of one man and or woman:
”Marriage has been well said to be something more than a contract, either religious or civil — to be an Institution. It creates mutual rights and obligations, as all contracts do, but beyond that it confers a status. The position or status of “husband” and “wife” is a recognized one throughout Christendom: the laws of all Christian nations throw about that status a variety of legal incidents during the lives of the parties, and induce definite rights upon their offspring. What, then, is the nature of this institution as understood in Christendom? … I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others”.
Hyde v. Hyde et al. (1866), L.R. 1 P & D 130 at 133.
Robb v. Robb (1890), 20 O.R. 591.
See also Keddie v. Currie et al. (1991), 85 D.L.R. (4th) 342 (B.C.C.A.).
(d) Marriage in Relation to Transsexuals
22. The common law definition that marriage involves the union of members of the opposite sex has been applied where one of two parties to a relationship is transsexual. Where two parties to a “marriage” are biologically of the same sex, it has been held that the individuals cannot lawfully marry:
“Since marriage is essentially a relationship between man and woman, the validity of the marriage in this case depends, in my judgment, on whether the respondent is or is not a woman…. Having regard to the essentially heterosexual character of the relationship which is called marriage, the criteria must, in my judgment, be biological, for even the most extreme degree of transsexualism in a male or the most severe hormonal imbalance which can exist in a person with male chromosomes, male gonads and male genitalia cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage.”
“The law as it presently exists does not provide for marriages between members of the same sex. In this case, when the parties married they were both female. As a result the “marriage” was a nullity and is void ab initio
Corbett v. Corbett (otherwise Ashley), [1970] 2 All E.R. 33 (H.C.) at 48.
C. (L.) v. C. (C.) (1992), 10 O.R. (3d) 254 (Gen. Div.).
Cossey v. United Kingdom (1990), 13 E.H.R.R. 622 (E.C.H.R.).
See also Rees v. United Kingdom (1984), 7 E.H.R.R. 429 (E.C.H.R.).
(e) Marriage in Relation to Homosexuals
23. Consistent with the common law rule that marriage can occur only between members of the opposite sex, the courts have refused to recognize homosexual unions as marriage. In North et al. v. Matheson, the court cited with approval Hyde v. Hyde and Corbett v. Corbett along with various dictionary definitions of marriage and concluded that the purported ceremony of marriage between the applicants was a nullity.
North et al. v. Matheson (1974), 20 R.F.L. 112 (Man. Cty. Ct.).
See also Harrogate Borough Council v. Simpson, [1986] 2 FLR 91 (C.A.)
24. Similarly, in Singer v. Hara, the Washington Court of Appeals affirmed a judgment dismissing the action of the plaintiffs, who were homosexuals, to compel the issuance of a marriage license. In so doing, the court said:
“Although appellants suggest an analogy between the racial classification involved in Loving and Perez and the alleged sexual classification involved in the case at bar, we do not find such an analogy. The operative distinction lies in the relationship which is described by the term “marriage” itself, and that relationship is the legal union of one man and one woman.
Singer v. Hara 522 P.2d 1187 (1974) at 1191.
(f) The Sexual Nature of Marriage
25. The common law definition of marriage reflects the sexual nature of the marriage relationship. One of the principal purposes of marriage is the founding and maintaining of families, in which children will be produced and cared for. The union of husband and wife has traditionally been treated as the basic unit of society, upon which society depends for its continued existence and stability. This purpose can be achieved only in a heterosexual relationship:
“The fact remains that marriage exists as a protected legal institution primarily because of societal values associated with the propagation of the human race.
Singer v. Hara 522 P.2d 1187 (1974) at 1195.
“(S)ex is clearly an essential element determinant of the relationship called marriage, because it is and always has been recognized as the union of man and woman. It is the institution on which the family is built, and in which the capacity for natural heterosexual intercourse is an essential element.”
Corbett v. Corbett (otherwise Ashley), [1970] 2 All E.R. 33 (H.C.) at 48.
North et al. v. Matheson (1974), 20 R.F.L. 112 (Man. Cty. Ct.).
Egan v. Canada (1991), 87 D.L.R. (4th) 320 (F~C.T.D.) at 332, appeal dismissed (1993), 103 D.L.R. (4th) 336 (F.C.A.).
C. (L.) v. C. (C.) (1992), 10 O.R. (3d) 254 (Gen. Div.).
Reasons for judgment of Southey J., Appeal Book, vol.1, tab 3, pp.13-14.
(g) Development of the Common Law
26. While the common law can and should develop over time, it is an established rule that changes to the common law should be slow and incremental out of deference to the legislature’1. Where changes to the common law may have complex ramifications, law reform should be left to the legislature.
“Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless, there are significant constraints on the power of the judiciary to change the law. As McLachlin J. indicated in Watkins, supra, in a constitutional democracy such as ours it is the legislature and not the courts which has the major responsibility for law reform; and for any changes to the law which may have complex ramifications, however necessary or desirable such changes may be, they should be left to the legislature.”
R. v. Salituro, [1991] 3 S.C.R. 654 at 670.
Hill v. Church of Scientology of Toronto (1994), unreported, released May 10, 1994 (Ont. C.A.) at 49-52.
27. There are sound reasons for this judicial reluctance to dramatically recast established rules of law. The court may not be in the best position to assess the deficiencies of the existing law, much less problems with the changes it might make. The court may not be in a position to appreciate fully the economic and policy issues underlying the choice it is asked to make. Perhaps most importantly, there is a long-established principle that in a constitutional democracy, it is the legislature, as the elected branch of government, which should assume the major responsibility for law reform.
Watkins v. Olafson, [1989] 2 S.C.R. 750 at 760-761.
28. In this case, the remedy sought by the appellants would require a fundamental and profound change in a concept that is deeply rooted in Canadian society. The appellants are not asking for entitlement to a specific benefit, but rather for the court to alter society’s concept of marriage in order to eliminate a stigma that they perceive that society has attached to their union.
29. As the appellants recognize in their factum, the proposed change would affect approximately 50 federal and 49 Ontario statutes. It is submitted that such a change should not be made by the courts. This is precisely the type of alteration that the courts are ill-suited to make.
(h) Conclusion
30. It is therefore submitted that at common law marriage can occur only between a man and a woman. Marriage at common law cannot occur between individuals of the same sex. Marriage involves the union of members of the opposite sex, and exists principally for the societal purpose of the propagation of the human species.
Issue 2 The Common Law Definition of Marriage Does Not Infringe 5. 15(1) of the Charter
31. Pursuant to 5. 15(1) of the Charter:
“Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
(a) The Supreme Court of Canada Trilogy
32. In three cases, the Supreme Court of Canada has provided a framework for the interpretation of s.15(1) of the Charter. In this trilogy, the court adopted a three step analysis to the application of s.15(1):
first, the distinction created by the legislature must result in the denial of one of the four equality rights;

secondly, the denial must be on the basis of an enumerated or analogous ground of discrimination; and

thirdly, the denial must be discriminatory in the circumstances.

Each of these tests is considered below.
Andrews V. Law Society of British Columbia [1989] 1 S.C.R. 143.
R. v. Turpin [1989] 1 S.C.R. 1296.
Reference re Validity of 5. 32 and 34 of the Workers Compensation Act (1989), 56 D.L.R. (4th) 765 (S.C.C.).
No Denial of Equality Rights
33. In the first step of the analysis, the impugned legislation must be analyzed in view of the four basic rights guaranteed by s.15(1) of the Charter: the right to equality before and under the law and the right to equal protection and equal benefit of the law.
34. The Supreme Court of Canada has held that s.15 of the Charter does not constitute a general guarantee of equality, nor does it address notions of equality in the abstract.
Andrews V. Law Society of British Columbia [1989] 1 S.C.R. 143.
35. In their factum, the appellants contend that the rights of homosexual couples to equality before the law and equal benefit and protection of the law have been infringed on the basis of their sexual orientation. The appellants contend that the benefit in question is their right to marry the partner of choice and to enjoy the benefits conferred by law upon married couples.
36. The common law does not prohibit individuals from marrying on any Charter ground, including on the basis of sexual orientation. It is simply that the common law concept of marriage, as a union between people of opposite sexes, is incompatible with a union of two people of the same sex. The common law does not prevent homosexuals from marrying because of their sexual orientation– it is simply that the relationship that exists between homosexual partners is not capable of being a marriage. As the majority noted, homosexuals are free to marry a person of the Opposite sex.
37. The right of homosexuals to equality under the law and to equal benefit and protection of the law is not infringed by the common law definition of marriage. If and to the extent that the law confers benefits upon persons of married status that are not conferred upon homosexual couples or upon heterosexual couples who are not married, any resulting inequality should be addressed by scrutinizing the particular benefit regime, not by redefining the concept of marriage.
Reasons for judgment of Southey J., Appeal Book, vol.1, tab 3, p. 15.
(c) No Discrimination on the Basis of Sexual Orientation
38. If the law is unequal in application in a manner prohibited by S.15(1), the court must determine if this distinction is based on one of the grounds enumerated in s.15(1) or on an analogous ground of discrimination.
Andrews V. Law Society of British Columbia [1989] 1 S.C.R. 143.
39. In Haig and Birch v. The Queen, on the basis of a concession by counsel, the Court of Appeal for Ontario concluded that sexual orientation is an analogous ground of discrimination within the meaning of s.15(1) of the Charter.
Haig and Birch V. The Queen (1992), 9 O.R. (3d) 495 (C.A.).
See also Canada (Attorney General) V. Ward [1993] 2 S.C.R. 689 at 739 per La Forest J.
40. While it has been held in some cases that sexual orientation is an analogous ground of discrimination under s.15(1), the distinction in this appeal is not based on the sexual orientation of the individual applicants.
41. In their factum, the appellants contend that “the rights of lesbian and gay couples” (emphasis added, see para. 35) have been infringed. The distinction in this appeal is not based on the personal characteristics of the applicants, but is instead based on their status as a couple. It has been held that a distinction based on the status of couples is not a distinction based on a prohibited ground of discrimination under s.15(1) of the Charter. As the Court of Appeal for Ontario concluded in Leroux v. Co-operators General Insurance Co.:
we do not think that unmarried persons who live together are members of a ‘disadvantaged group in Canadian society’, or of a ‘discrete and insular minority’, or that they have suffered ‘social, political and legal disadvantage in our society’. We appreciate that unmarried persons who live together do not possess some of the important rights that married persons have but, by the same token, they are not subject to many of the legal burdens and obligations of married persons.”
Leroux V. Co-operators General Insurance Co. (1991), 4 O.R. (3d) 609 (C.A.) at 620-621.
Miron V. Trudel (1991), 4 O.R. (3d) 623 (C.A.).
See also Egan V. Canada (1991), 87 D.L.R. (4th) 320 (F.C.T.D.) at 332, appeal dismissed (1993), 103 D.L.R. (4th) 336 (F.C.A.).
See also Vogel V. Manitoba (1992), 90 D.L.R. (4th) 84 (Man. Q.B.).
42. As the reasons of the majority in the Divisional Court indicate1 some homosexuals do marry. At most, the common law prevents homosexuals from marrying each other. This distinction is not based on the sexual orientation of the individuals but is instead based on the societal concept of marriage.
43. Nothing prevents the legislature from conferring benefits on homosexual couples similar to the benefits conferred on married couples. The only distinction is that the union of homosexuals is not and cannot be a marriage.
(d) No Discrimination in the Circumstances
44. If it is determined that an equality right has been infringed on an enumerated or analogous ground, the court must determine whether the distinction is discriminatory. Discrimination for the purpose of s.15(1) has been defined as follows:
“I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group, not imposed upon others, or which withholds or limits access to opportunities, benefits and advantages available to other members of society.”
Andrews V. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 174.
45. Section 15(1) of the Charter does not prohibit the law from making distinctions between individuals or between groups. Section 15(1) simply prohibits distinctions that are discriminatory.
R. v. Hess, [1990] 2 S.C.R. 906 at 927 per Wilson J., Lamer C.J.C., La Forest and L’Heureux-Dube JJ. concurring.
46. As the Supreme Court of Canada has concluded, a legitimate distinction based upon a biological fact may not offend s.15(1) of the Charter:
“Nevertheless, there are certain biological realities that one cannot ignore and that may legitimately shape the definition of particular offences. In my view, the fact that the legislature has defined an offense in relation to these realities will not necessarily trigger s.15(1) of the Charter. I think few would venture to suggest that a provision proscribing self-induced abortion could be discriminatory because it did not apply to men. Such an argument would be absurd. In my view, s.15(1) does not prevent the creation of an offence which, as a matter of biological fact, can be committed by one of the sexes because of the unique nature of the acts that are proscribed.”
R. v. Hess [1990] 2 S.C.R. 906 at 929 per Wilson J., Lamer C.J.C., La Forest and L’Heureux-Dube JJ. concurring.
47. It is submitted that the common law is not discriminatory in purpose or effect. The common law definition of marriage does not have a discriminatory purpose. The common law rule reflects an ancient and shared understanding of the role and purpose of marriage, rather than any attempt to discriminate against homosexuals.
48. Given the procreative purpose of marriage (as described in paragraph 25, above), a requirement that the parties to a marriage be a man and a woman is not discriminatory in effect but instead reflects an underlying biological reality. However one wishes to characterize the union of two homosexuals, it is not marriage, and the courts should not intervene to alter this fundamental concept:
“But I believe that if the courts were to adopt, in interpreting Human Rights Acts, a ‘living tree’ approach towards discerning new grounds of discrimination for proscription, or redefining past meanings given to existing grounds, they would step outside of the scope of their constitutional responsibilities and usurp the function of Parliament.”
Canada (A.C.) V. Mossop (1990), 71 D.L.R. (4th) 661 (F.C.A.) at 673 per Marceau J., appeal dismissed, [1993] 1 S.C.R. 556.
49. Furthermore, the common law definition of marriage is not discriminatory because it is not the legal incapacity of homosexuals to marry each other that results in the discriminatory effects claimed in the appellants’ factum. Although homosexuals may face stigmatization in Canadian society, this stigmatization does not flow from the fact that they are not married –Canadian society does not attach a similar stigma to unmarried heterosexual couples. It is submitted that any discriminatory effects suffered by homosexual couples result from society’s moral and other views concerning homosexuality. Homosexuals are not stigmatized because they are unmarried, but because of society’s views regarding homosexuality.
Issue 3 Section 1 of the Charter
50. Pursuant to s.1 of the Charter:
“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.
51. If the court concludes that there has been a breach of s.15 of the Charter, it is respectfully submitted that the common law concept of marriage is nevertheless justifiable under s.1 of the Charter.
(a) The Oakes Test
52. In Swain v. The Queen, the Supreme Court of Canada concluded that the basic procedures set out in R. v. Oakes should be followed, with certain modifications, where a common law rule that infringes a Charter right is sought to be upheld under s.1 of the Charter. In this regard:
the objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right or freedom; it must relate to concerns that are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important;

assuming that a sufficiently important objective has been established, the means chosen to achieve the objective must pass a proportionality test; that is to say they must:

be “rationally connected” to the objective and not be arbitrary, unfair or based on irrational considerations;

impair the right or freedom in question as “little as possible”;

be such that their effects on the limitations of rights and freedoms are proportional to the objective.

R. v. Swain [1991] 1 S.C.R. 933 at 980-981.
R. v. Oakes, [1986] 1 S.C.R. 103.
53. However, the rigid application of the Oakes test has been relaxed in relation to s.15(1) of the Charter. In Andrews, Mcintyre J. recognized the need to apply a lower and more flexible standard of “reasonableness” and proportionality’ to s.15(1). This more flexible test recognizes that laws make distinctions between individuals and groups. It is nevertheless submitted that, as set out below, the common law rule regarding marriage can be justified under the more rigid Oakes test.
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 184.
(b) Objective
54. Where a common law is sought to be upheld under s.1, the construe the overall objective of the common law rule in question.
R. v. Swain [1991] 1 S.C.R. 933 at 980-981.
55. It is respectfully submitted that the objective underlying the common law rule (as described in paragraphs 14 and 25, above) is the maintenance of the family and the propagation of a human species. Heterosexual families justifiably enjoy a special place in society and merit constitutional protection.
56. The problem here is that it is difficult if not impossible to disagree with the concept that the state can and should foster the traditional concept of marriage and the maintenance of the traditional family unit. The issue here is whether same-sex relationships must be afforded the same rights and obligations as heterosexual married relationships and whether, if so, it should be done through an expanded definition of marriage.
57. However, the legal rights and obligations that flow from the status of being married are based on the assumption that marriage involves a man and a woman. Same sex relationships do not fit within the current legal framework.
See, for example Anderson V. Luoma (1986), 50 R.F.L. (2d) 127 (B.C.S.C.).
58. While some courts have held that the Charter may protect homosexuals in some circumstances, there may be other circumstances in which such recognition is neither required nor appropriate. Such a determination is best made in the context of an examination of each of these individual rights and obligations, not at the definitional level.
(c) The Proportionality Test
(i) Rational Connection
59. Marriage is a term used to define the institution of the union of one man and one women. The legal recognition of marriage supports the objective of promoting this institution as a fundamental basis of maintaining Canadian society. It is submitted that the common law rule, in recognizing only marriages of persons of the opposite sex, is rationally connected to achieving this objective.
(ii) Minimum Impairment
60. The exclusion of homosexual couples from the common law definition of marriage impacts minimally upon the relationship of a homosexual couple. As noted above, discrimination toward a homosexual couple does not result from stigmatization because the couple is not married, it is because the couple is homosexual. Expanding the common law definition would not alter this fact
(iii) Proportional to the objective
61. The limitation of rights and freedoms are proportional to the objective. In order to recognize in law the institution of marriage, it must be given a definition and a status. The definition of marriage is provided by the common law, and as a matter of biological necessity, it includes a man and a woman.
62. The common law rule merely recognizes the status of a particular type of heterosexual union. Beyond this recognition, the common law confers no benefit and imposes no duty. The status and recognition of marriage can be obtained by homosexuals, if they choose to marry a person of the opposite sex. if and to the extent that homosexual relationships are excluded, then any restriction on the rights of homosexuals can and should be addressed through an examination of the particular benefit regimes that are dependent upon the status of being married
(d) Conclusion
63. In view of the foregoing, it is respectfully submitted that the common law definition of marriage is rationally connected to the objective of promoting the family unit, that this definition impairs the rights and freedoms of homosexuals as little as possible and that the effects of such limitations are proportional to the objective.
64. It is respectfully submitted that in view of the important social objectives underlying the traditional marriage unit, the means reflected in the common law rule to achieve this objective are proportional and should be upheld under s.1 of the Charter.
PART III- ADDITIONAL ISSUES RAISED BY THE INTERVENOR
Issue 4 The Preamble to the Charter
65. The preamble to the Charter reads as follows:
“Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law”.
(a) Religious Views of Marriage
66. Religion is a fundamental cornerstone of every free and democratic society and is inseparable from our multi-cultural heritage. This heritage is expressly recognized in s.27 of the Charter.
67. All major world religions recognize the concept that marriage involves the union of man and woman. This concept of marriage is a basic tenet of religious doctrine and is not confined to Christianity.
Religious Traditions of the World (1993, Harper Collins), pp. 683-684, 935.
Crim, The Perennial Dictionary of World Religions (1989, Harper & Row), p.462.
Hinnells, A Handbook of Living Religions (1984, Penguin Books/Vildng), p.217.
Brandon, A Dictionary of Comparative Religions (1970, Charles Scribner’s Sons) pp.428-430.
Cole & Sambhi, The Sikhs: Their Religious Beliefs and Practices (1978, Routledge & Kegan Paul) pp.114-119.
Hatcher & Martin, The Baha’i Faith: The Emerging Global Religion (1984, Harper & Row) pp.158-159.
Hoobler & Hoobler, Confucianism: World Religions (1993, Facts on File) pp.93-94.
Finkeistein, The Jews: Their History, Culture, and Religion 3rd ed., (1960, Harper) pp.1789-1790.
Lamm, The Jewish Way in Love and Marriage (1980, Harper & Row), pp.65-70.
Epstein, The Jewish Marriage Contract (1927, New York Jewish Theological Seminary of America).
Hodkinson, Muslim Family Law A Sourcebook (1984, Croom Helm London & Canberra), pp.89-95, 107-108.
Farah, Marriage and Sexuality in Islam (1984, University of Utah Press), pp.11-16, 37-39.
Husain, Marriage Customs Among Muslims in India (1976, Sterling Publishers PVT. Ltd.), pp.34-45.
Malakar, Inter-Communities Relations through Castes, Rituals & Marriages (1979, Firma KLM Private Limited), pp.122-137.
Murstein, Love, Sex and Marriage through the Ages (1974, Springer Publishing Company), pp.34-35, 467, 472, 486-488.
(b) Interpretation of the Preamble
68. The preamble to a constitutional enactment can play a role in clarifying and supplementing the substantive provisions of the constitutional document.
Re Manitoba Language Rights [1985] 1 S.C.R. 721.
R v. Mercure, [1988] 1 S.C.R. 234 at 280 to 281.
Zylberberg v. Sudbury Board of Education (1988), 65 O.R. (2d) 641 (C.A.) at 657.
Driedger, Construction of Statutes (2nd), pp.144 to 146.
69. In Re Manitoba Language Rights, the Supreme Court of Canada expressly applied the preamble’s affirmation that “Canada is founded upon principles that recognize … the rule of law” in holding that Manitoba’s statutes would have temporary validity pending their translation and reenactment, although otherwise invalid. The application of this principle demonstrates the importance and usefulness of the preamble in Charter interpretation.
Re Manitoba Language Rights [1985] 1 S.C.R. 721.
(c) The Supremacy of God
70. The preamble to the Charter expresses the fundamental principles that underlie Canadian society and the more specific rights and freedoms guaranteed by the Charter. The rule of law is the cornerstone of our legal system. The supremacy of God is the cornerstone of our moral system, and is reflected in Canadian society and in the principles underlying our legal system. Both are given equal recognition in the preamble.
71. The principles that recognize the “rule of law” are more readily understood and applied than the principles that recognize the “supremacy of God”. However, the complexity in understanding and applying the principles that flow from recognition of the supremacy of God should not cause it to be discarded as vague or unhelpful. Both concepts point toward our philosophical and legal tradition, which upholds objective truth and moral standards.
72. Like the rule of law, the principles that recognize the supremacy of God are a fundamental aspect of Canadian society and the Canadian polity and should be expressly recognized and applied by the courts in interpreting and shaping the fundamental rights and freedoms guaranteed by the Charter. In the Concise Oxford Dictionary (7th), “recognize’1 is defined as follows:
“acknowledge validity or genuineness or character or claims of, accord notice or consideration or reward to… discover or realize nature of; treat as, acknowledge for, realize or admit that”.
The Concise Oxford Dictionary (7th), p.866.
73. In stating that Canada is founded upon principles that recognize the supremacy of God, the Charter is acknowledging the genuineness of God’s suprernacy and, with that, the basic moral and philosophical precepts that provide the foundation for Canadian society.
(d) Application of the Preamble
74. The supremacy of God reflects the central role that religion has played in the development of Canadian society and in the development of societal values. Those principles and beliefs constitute part of the framework for our free and democratic society. The supremacy of God does not refer to one belief system, but rather to the core principles and beliefs found in the religious traditions that have historically shaped Canada’s principles and beliefs.
75. One way in which these principles and beliefs has found expression is in the institution of marriage, which reflects the central role accorded to that institution (as a union between persons of the opposite sex) by all major religions. Expressed differently, the common law definition of marriage is a product of the principles and beliefs of the religions that have shaped Canadian society, and is reflected in society’s understanding of the institution.
76. It is submitted that the preamble to the Charter reflects these values and beliefs. The preamble recognizes the shared cultural and religious heritage upon which Canadian society was founded. It would therefore be wrong to interpret 5. 15(1) of the Charter in a manner that would fundamentally alter Canadian society’s conception of a common law institution that has developed from that heritage. As Chief Justice Dickson said in another context:
“Our society is collectively powerless to repudiate its history, including the Christian heritage of the majority.”
R v. Edwards Books and Art Limited, [1986] 2 S.C.R. 713 at 743.
(e) Conclusion
77. It is therefore respectfully submitted that because the institution of marriage reflects Canada’s shared principles and beliefs, the recognition of the supremacy of God in the preamble to the Charter supports an interpretation that the common law definition of marriage is constitutional under the Charter.
PART IV – ORDER REQUESTED
78. The intervenor The Evangelical Fellowship of Canada therefore respectfully requests that this appeal be dismissed.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
Robert W. Staley
of counsel for the intervenor The Evangelical Fellowship of Canada