PART III
ARGUMENT
10. The Canadian Commission adopts the submissions of the Attorney General of Canada with respect to part 1 of the proposed legislation and seeks to add the following submissions:
Question 1: The Proposed Legislation is within the Exclusive Constitutional Legislative Authority of Parliament
11. The Canadian Commission agrees with the submissions of the AGC that part 1 of the proposed legislation, dealing as it does with capacity to marry, is within the exclusive constitutional legislative authority of Parliament. The Canadian Commission further agrees that if part 2 of the legislation is purely declaratory, as is indicated at paragraph 40 of Factum of the AGC, this section of the proposed legislation also within the legislative authority of Parliament.
12. In addition, the Ontario Court of Appeal in Halpern Appeal rejected the argument that allowing same-sex couples to marry would require a constitutional amendment, on the basis of two principles: first, the question is one of capacity which is clearly within the exclusive constitutional legislative authority of Parliament; and second, “...to freeze the definition of marriage to whatever meaning it had in 1867 is contrary to this country's jurisprudence of progressive constitutional interpretation”.6
13. One of the relevant factors occurring since Confederation is the equality rights evolution which has brought about the existence of federal and provincial statutory human rights instruments as well as the Charter. All of these instruments have been used to remedy discrimination and change social attitudes toward same-sex couples. As was accepted by the Ontario Court of Appeal in Halpern Appeal, that equality litigation has involved some of the most basic elements of civic life.7
14. The proposed legislation represents a progressive constitutional interpretation of Parliament’s authority, and brings the issue of capacity to marry in line with other human rights protections already entrenched in Canada.
Question 2: The Proposed Legislation is Consistent with the Charter
15. The Canadian Commission agrees with the assertion, at paragraph 44 of Factum of the AGC, that the proposed legislation must be considered against the backdrop of the court decisions in British Columbia, Ontario and Quebec. These cases clearly establish that it is a constitutional imperative to extend capacity to marry to same-sex couples. The proposed legislation meets the highest ideals of the Charter and could not be interpreted as violating the Charter in any respect. The proposed legislation is also consistent with the values embodied in statutory human rights instruments including the CHRA, and the movement in human rights jurisprudence toward inclusiveness and diversity. In Halpern Appeal, for example, the Ontario Court of Appeal addressed the impact of exclusion:
In this case, same-sex couples are excluded from a fundamental societal institution - marriage. The societal significance of marriage, and the corresponding benefits that are available only to married persons, cannot be overlooked. Indeed, all parties are in agreement that marriage is an important and fundamental institution in Canadian society. It is for that reason that the claimants wish to have access to the institution. Exclusion perpetuates the view that same-sex relationships are less worthy of recognition than opposite-sex relationships. In doing so, it offends the dignity of persons in same-sex relationships.8
And this Court in Meiorin:
Accommodation does not go to the heart of the equality question, to the goal of transformation, to an examination of the way institutions and relations must be changed in order to make them available, accessible, meaningful and rewarding for the many diverse groups of which our society is composed. Accommodation seems to mean that we do not change procedures or services, we simply "accommodate" those who do not quite fit. We make some concessions to those who are "different", rather than abandoning the idea of "normal" and working for genuine inclusiveness.9
Question 3: The Charter Protects Religious Officials from Being Compelled to Perform a Marriage which is Contrary to their Religious Beliefs
16. The Canadian Commission supports the proposed legislation and agrees that religious officials cannot be compelled to conduct religious marriages which are contrary to their beliefs and traditions. Catholic officials, for example, cannot be compelled to marry divorced persons who do not meet the doctrinal requirements for re-marriage. Similarly, a religious official could refuse to perform the same-sex marriage of a member of his or her congregation if such a marriage conflicts with the official’s religious beliefs. If this is what is meant by the declaratory language in the proposed legislation, then the Canadian Commission is in agreement with the AGC.
17. It is the position of the Canadian Commission that there is no recourse available under statutory human rights instruments or the Charter in circumstances where a religious official refuses to conduct a marriage within the doctrine of a faith community. Religious marriages are neither government action nor are they services generally available to the public.10
18. The other possible interpretation of the proposed legislation is that it protects religious officials from conducting same-sex marriages in both the religious and civil context. It is this interpretation that the Canadian Commission is concerned with. In circumstances where a religious official makes marriage services generally available to the public, part 2 of the proposed legislation is no longer simply declaratory. The language actually constitutes an exemption for the purpose of assessing whether the conduct of that official violates provincial or federal statutory human rights instruments.
19. The Commission’s concern is two-fold: first, having decided to legislate in favour of allowing same-sex couples to marry, all same-sex couples should have confidence in their ability to secure a civil marriage; and secondly, to establish a civil exemption could establish a precedent which elevates religious belief and practice above other prohibited grounds in the delivery of civil services.
20. The proposed legislation, governing as its does, civil and not religious marriage, must be construed in a manner which is consistent with the Charter but also with provincial and federal statutory human rights instruments. The Court in the Halpern Appeal endorsed the principle that once the state provides a benefit, it must do so in a non-discriminatory manner:
Second, Canadian governments chose to give legal recognition to marriage. Parliament and the provincial legislatures have built a myriad of rights and obligations around the institution of marriage. The provincial legislatures provide licensing and registration regimes so that the marriages of opposite-sex couples can be formally recognized by law. Same-sex couples are denied access to those licensing and registration regimes. That denial constitutes a formal distinction between opposite-sex and same-sex couples. The words of La Forest J. in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at 678 are instructive:
This Court has repeatedly held that once the state does provide a benefit, it is obliged to do so in a non-discriminatory manner. ... In many circumstances, this will require governments to take positive action, for example by extending the scope of a benefit to a previously excluded class of persons.11