30. In the civil marriage context there may be cases, for example, in a larger City, where multiple alternatives exist. In those cases the remedy may simply be monetary. In other smaller communities it could pose a significant hardship for same-sex couples to find an alternative official to conduct their marriage ceremonies. In those cases the remedy may be to impose upon the religious official the obligation to perform the ceremony. There may be cases where the religious official is employed in a context where the employer is required to accommodate the religious beliefs of their employees. A human rights Commission or Tribunal will be required to take into consideration the full context, the nature of the rights infringements alleged and the consequences for all parties.17
31. In Chamberlain, on the issue of the use, in schools, of materials which positively depicted same-sex families, there existed a statutory obligation on the school board to apply secular values in conducting its decision-making. At paragraph 25 of the Chamberlain decision, this Court stated that:
In summary, the Act's requirement of strict secularism means that the Board must conduct its deliberations on all matters, including the approval of supplementary resources, in a manner that respects the views of all members of the school community. It cannot prefer the religious views of some people in its district to the views of other segments of the community. Nor can it appeal to views that deny the equal validity of the lawful lifestyles of some in the school community. The Board must act in a way that promotes respect and tolerance for all the diverse groups that it represents and serves.18
These principles are equally applicable to the interpretation and application of statutory human rights instruments.
32. The Trinity case, involved a private institution which was exempt in part from the British Columbia Human Rights Act as well as from the Charter. This Court, however, determined that discrimination was an operative issue in the case and that freedom of religion, conscience and association coexist with the right to be free of discrimination based on sexual orientation. This Court further stated that “the proper place to draw the line in cases like the one at bar is generally between belief and conduct. The freedom to hold beliefs is broader than the freedom to act on them.” This Court also referred to Iacobucci and Major JJ. in B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, at para. 226, that:
Just as there are limits to the ambit of freedom of expression (e.g. s. 2(b) does not protect violent acts: R. v. Zundel, [1992] 2 S.C.R. 731, at pp. 753 and 801; R. v. Keegstra, [1990] 3 S.C.R. 697, at pp. 732 and 830), so are there limits to the scope of s. 2(a), especially so when this provision is called upon to protect activity that threatens the physical or psychological well-being of others. In other words, although the freedom of belief may be broad, the freedom to act upon those beliefs is considerably narrower, and it is the latter freedom at issue in this case.19
33. Again, these examples, arise not in the context of private, religious activity, but in a context where the person or organization has a responsibility to deliver public services. When a person offers their services to the public, they must do so in a manner which is consistent with their obligations under statutory human rights instruments. They cannot manifest their religious beliefs through the exercise of their public, civil responsibilities, if to do so, would undermine the rights of others on the basis of a prohibited ground of discrimination
34. The Canadian Commission’s hope is that through time and education, few incidents will arise where same-sex couples are refused civil marriage ceremonies in circumstances where their limited options compel them to file a human rights complaint. In those limited cases, Commissions across the country will play an important role in resolving those disputes quickly and preventing them from escalating into Tribunal decisions and competing Charter claims.
Question 4: The opposite-sex requirement for marriage is inconsistent with the Charter
35. The Canadian Commission acted as an intervenor in Hendricks Appeal and Halpern Appeal and agrees with the reasoning contained in those decisions as well as the decision of the British Columbia Court of Appeal in EGALE and the two lower court decisions in Hendricks and Halpern. These cases clearly establish that the opposite-sex requirement for marriage was inconsistent with the Charter.
36. Each court came to the right conclusion in the section 15 analysis by focusing on the contextual experience of gay, lesbian and bisexual Canadians rather than on the context of marriage and the defense of marriage as a heterosexual institution. This approach, which maintains a clear analytical distinction between section 15 and section 1, reveals the impact of the exclusion on the claimants and gives the Court the ability to measure that impact against the purpose of section 15(1).20
37. It is now accepted that arguments related to the “inherent” heterosexual nature of marriage amount to “circular reasoning” and “sidestep the entire s. 15(1) analysis”.21
38. It is also now accepted that extending marriage to same-sex couples is the only remedy which meets the imperatives of equality. All other options fall within the long discredited “separate but equal doctrine”. As the Court in Halpern indicated, same-sex couples must be free to make the same choice as heterosexual couples to marry or not to marry. Each of those choices comes with a different bundle of rights and responsibilities.
39. The purpose of all human rights legislation, most of which predates the Charter in Canada, is to transform relations between individuals, and between individuals and their government, to fulfill the state’s responsibility to eliminate discrimination. To suggest that these principles apply to all fundamental social institutions, except marriage, is to deny the promise of equality and to expressly violate Canada’s commitment to the values which underlie both the Charter and the Canadian Human Rights Act.
The quest for equality expresses some of humanity's highest ideals and aspirations, which are by their nature abstract and subject to differing articulations. The challenge for the judiciary in interpreting and applying s. 15(1) of the Charter is to transform these ideals and aspirations into practice in a manner which is meaningful to Canadians and which accords with the purpose of the provision.22
D. Conclusion
40. In Vriend, this Court reminded us that all Canadians benefit from the rigorous application of the principles of equality:
It is easy to say that everyone who is just like "us" is entitled to equality. Everyone finds it more difficult to say that those who are "different" from us in some way should have the same equality rights that we enjoy. Yet so soon as we say any enumerated or analogous group is less deserving and unworthy of equal protection and benefit of the law all minorities and all of Canadian society are demeaned. It is so deceptively simple and so devastatingly injurious to say that those who are handicapped or of a different race, or religion, or colour or sexual orientation are less worthy. Yet, if any enumerated or analogous group is denied the equality provided by s. 15(1) then the equality of every other minority group is threatened. That equality is guaranteed by our constitution. If equality rights for minorities had been recognized, the all too frequent tragedies of history might have been avoided. It can never be forgotten that discrimination is the antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.23
41. In the Canadian Commission’s respectful submission, the AGC has proposed legislation which expresses the promise of equality which Canadian citizens have made to one another. The appropriate balance to be struck between religion and sexual orientation is the drawing of clear lines between religious and civil marriage. In this way the legislation fosters the dignity of every individual and leaves same-sex couples, as well as religious officials, to choose the course of action which best accords with their personal beliefs and aspirations as Canadian citizens.