Halpern

// Halpern v. Canada // The Attorney General of Canada (“AGC”) appeals on the equality issue. Couples cross-appeal on the issue of remedy seeking an immediate declaration of invalidity and reformulation of the definition of marriage. MCCT also cross-appeals on the question of remedy as well as on the dismissal of its claim that the definition of marriage infringes its ss.2(a) and 15(1) rights as a religious institution. 1) What is the common law definition of marriage? Does it prohibit same-sex marriages?  2)  Is a constitutional amendment required to change the common law definition of marriage, or can a reformulation be accomplished by Parliament or the courts? 3) Does the common law definition of marriage infringe MCCT’s rights under ss.2(a) and 15(1) of the //Charter//?  4)  Does the common law definition of marriage infringe the Couples’ equality rights under s.15(1) of the //Charter//? 5) If the answer to question 3 or 4 is ‘Yes’, is the infringement saved by s.1 of the //Charter//?  6)  If the common law definition of marriage is unconstitutional, what is the appropriate remedy and should it be suspended for any period of time? · Traditional common law definition from //Hyde v. Hyde and Woodmansee//: “the voluntary union for life of one man and one woman, to the exclusion of all others” · The court finds that the current common law definition does restrict marriage to opposite-sex couples // Constitutional Amendment // · The AGC argued that the definition is a constitutionally entrenched term and that it refers to the legal definition of marriage that existed at Confederation and that this definition can only be amended through formal constitutional amendment procedures · The court rejects this argument based on the constitution being a living tree and that under the doctrine of progressive interpretation, the term marriage in s.91(26) of the //Constitution Act, 1867// has the flexibility necessary to meet the changing realities of Canadian society without the need for recourse to formal constitutional amendment procedures // Cross-Appeal by MCCT: Religious Rights // · MCCT argues that the common law definition of marriage is rooted in Christian values, which has never recognized same-sex marriages. MCCT argues that the current definition has the unconstitutional purpose of enforcing a particular religious view of marriage and excluding other religious views · The court rejects this claim. This case is solely about the institution of marriage, it is not about the validity or invalidity of various forms of marriage · Any potential discrimination arising out of the differential treatment of same-sex marriages performed by MCCT is based on sexual orientation // Section 15(1) of the Charter // · The approach taken in a s.15(1) analysis is purposive and contextual and follows the test set out by Iacobucci J. in //Law//, which involves a three stage inquiry (the detailed steps are set out at p.363 of the course pack) __ Step 1: The existence of differential treatment __ · This stage involves a comparative concept, whereby, the complainant choose a relevant comparator group in order to determine whether the claimants are the subject of differential treatment · In this case, the Couples submit that the common law definition of marriage draws a distinction between same-sex and opposite-sex couples · The AGC submits that marriage does not produce a distinction, rather it is a descriptor of a unique bond between opposite-sex couples that is virtually a universal norm · The court rejects this argument. At this stage of the analysis, the only relevant factor to be determined is whether a distinction is made. The fact that the common law adopted, rather than invented the opposite-sex feature of marriage is irrelevant. Furthermore, the Canadian government chose to give legal recognition to marriage, thereby, providing rights and obligations to opposite-sex couples that same-sex couples are denied. It doesn’t matter that the distinction derives from some other source, because a distinction is still made. The argument that marriage is heterosexual because it “just is” is circular reasoning. · No question that a distinction is drawn between same-sex and opposite-sex couples, so first stage of analysis is satisfied __ Step 2: Differential treatment on an enumerated or analogous ground __ · In //Egan//, the Supreme Court recognized that sexual orientation is an analogous ground given that it is a “deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs”, therefore, the 2nd stage of the analysis is met __ Step 3: The existence of discrimination __ · This stage is concerned with substantive not formal equality and places a major emphasis on upholding human dignity · A subjective-objective approach should be taken at this stage meaning that the assessment of whether the law demeans the claimant’s dignity is taken from the perspective of a reasonable person who has a full understanding of the circumstances of, and with similar attributes to the group of which the rights claimant is a part · The court is to examine both the purpose and effects of the law – it is enough for the claimant to demonstrate a discriminatory effect · Four contextual factors that a claimant may reference to demonstrate that the law demeans their dignity are set out in //Law//: o // Pre-existing disadvantage, stereotyping or vulnerability of the claimant // : same-sex couples are a historically marginalized and vulnerable group o // Correspondence between the grounds and the claimant’s actual needs, capacities or circumstances // : The common law definition of marriage does not meet the needs of same-sex couples o // Ameliorative purpose or effects on more disadvantaged individuals or groups in society // : Opposite-sex couples are a more advantaged group o // Nature of the interest affected // : Same-sex couples do not receive equal treatment before the law with respect to the rights and obligations associated with marriage and, furthermore, they are excluded from a fundamental societal institution (marriage) · Based on the analysis of the four contextual factors, the court concludes that the definition of marriage offends the dignity of same-sex couples // Section 1 of the Charter // · Follows //Oakes// test (set out on p.369 of the course pack) __ Step 1: Pressing and substantial objective __ · When a law has been found to violate the //Charter// due to underinclusion, both the objective of the law as a whole and the objective of the exclusion must be considered · The AGC advances the following three purposes of marriage: 1) uniting the opposite sexes 2) encouraging the birth and raising of children of the marriage 3) companionship  o  First purpose favours one form of relationship over another, suggesting that uniting two persons of the same sex is of lesser importance. A purpose that demeans the dignity of same-sex couples cannot be considered pressing and substantial  o  The second purpose of encouraging procreation is pressing and substantial. However, the encouragement of procreation is not a pressing and substantial objective of maintaining marriage as an exclusively heterosexual institution. Furthermore, an increasing number of same-sex couples are raising children of their own.  o  The third purpose cannot be viewed as a pressing and substantial objective of excluding same-sex couples from marriage. Encouraging companionship between only opposite-sex couples perpetuates the view that same-sex couples are not equally capable of forming lasting and loving relationships __ Step 2: Proportionality (three components) __ · The conclusion under the first part of the test makes it unnecessary to consider the rest of the test. However, it has become the norm for courts to do so anyway so the Court of Appeal goes through the rest of the test o Rational connection not met. The AGC failed to demonstrate how the exclusion of same-sex couples from marriage helped to further the objectives of marriage o Minimal impairment not met. The needs of same-sex couples are not met, they are denied being a part of a fundamental societal institution, and there would be no corresponding deprivation to opposite-sex couples if same-sex couples were allowed to marry o Deleterious effects of the exclusion of same-sex couples from marriage outweigh its objectives // Conclusion // · The common law definition of marriage violates the s. 15(1) equality rights of same-sex couples and is not justified under s.1 of the //Charter// · Follows three steps set out in //Schachter// to determine remedy (set out at p.372 of course pack) · Allows cross-appeal of the Couples and MCCT on the question of remedies · The common law rule is declared invalid and the definition of marriage is reformulated as “the voluntary union for life of two persons to the exclusion of all others”. The new definition is to apply immediately with no period of suspension. · Orders are made requiring the Clerk of the City of Toronto to issue marriage licences to the Couples and requiring the Registrar of Ontario to accept for registration the marriage certificates of the two same-sex couples married by MCCT.
 * Facts ** : Seven gay and lesbian couples applied to the City of Toronto for marriage licences, which they did not receive. The Metropolitan Community Church of Toronto (“MCCT”) performed marriage ceremonies for two same-sex couples but upon applying to have the marriages registered, the Registrar refused citing an alleged federal prohibition on same-sex marriages. The Couples’ and MCCT both launched applications to the Divisional court, which were heard together.
 * Divisional Court Holding ** : The common law definition of marriage as being between one man and one woman violates s.15(1) of the //Charter// and is not justified under s.1. The remaining //Charter// rights claimed by the applicants were either not infringed or not applicable.
 * Court of Appeal Holding ** : Affirms the decision of the Divisional Court with respect to the //Charter// claims but differs with respect to the remedy. The common law rule is declared invalid and the definition of marriage is reformulated as “the voluntary union for life of two persons to the exclusion of all others”. The new definition is to apply immediately with no period of suspension. Orders are made requiring the Clerk of the City of Toronto to issue marriage licences to the Couples and requiring the Registrar of Ontario to accept for registration the marriage certificates of the two same-sex couples married by MCCT.
 * Issues before the Court of Appeal: **
 * Reasoning ** :