Synopsis of Halpern et al v. Attorney General of Canada et al
From April 22 to 25, 2003, a panel of the Court of Appeal for Ontario,
composed of Chief Justice McMurtry and Justices MacPherson and
Gillese, heard a constitutional challenge to the definition of marriage. The definition of marriage, which is found only in the common law, requires
that marriage be between “one man and one woman”. This opposite-sex requirement was challenged by eight same-sex couples (“the
Couples”) as offending their right to equality as guaranteed by s. 15(1) of the Canadian Charter of Rights and Freedoms (“the Charter”) on the
basis of sexual orientation. The opposite-sex requirement was also challenged by the Metropolitan Community Church of Toronto (“MCCT”) as
violating its right to freedom of religion under s. 2(a) of the Charter and its equality rights under s. 15(1) of the Charter on the basis of religion.
On July 12, 2002, the Divisional Court (Associate Chief Justice Smith,
Regional Senior Justice Blair and Justice LaForme) unanimously held
that the opposite-sex requirement of marriage infringed the Couples’ equality rights under s. 15(1) of the Charter and was not saved as a
justifiable limit in a free and democratic society under s. 1 of the Charter. The Divisional Court was also unanimous in ruling that the rights of
MCCT as a religious institution were not violated. The Court was divided on the issue of remedy. The formal judgment of the Court declared the
common law definition to be inoperative. The declaration was suspended for two years to enable Parliament to fashion an appropriate remedy.
If Parliament failed to act within two years, then the common law definition of marriage would be automatically reformulated by substituting the
words “two persons” for “one man and one woman”.
In a unanimous judgment, the Court of Appeal upholds the decision of
the Divisional Court that the common law definition of marriage offends
the Couples’ equality rights under s. 15(1) of the Charter in a manner that cannot be justified in a free and democratic society. The Court further
agrees that MCCT’s rights as a religious institution are not violated. On remedy, the Court declares the current definition of marriage to be
invalid, reformulates the definition of marriage to be “the voluntary union for life of two persons to the exclusion of all others”, and orders the
declaration of invalidity and the reformulated definition to have immediate effect.
Violation of Equality Rights under s. 15(1) of the Charter:
The Court holds that the dignity of persons in same-sex relationships
is violated by the exclusion of same-sex couples from the institution of
The opposite-sex requirement in the definition of marriage creates a
formal distinction between opposite-sex and same-sex couples on the
basis of sexual orientation, an analogous ground of discrimination under s. 15(1) of the Charter.
A law that prohibits same-sex couples from marrying does not accord
with the needs, capacities and circumstances of same-sex couples.
Same-sex couples are capable of forming long, lasting, loving and intimate relationships. Denying same-sex couples the right to marry
perpetuates the contrary view, namely, that same-sex couples are not capable of forming loving and lasting relationships, and thus same-sex
relationships are not worthy of the same respect and recognition as opposite-sex relationships. Moreover, same-sex couples can choose to
have children through adoption, surrogacy and donor insemination. Importantly, procreation and child-rearing are not the only purposes of
marriage, or the only reason why couples choose to marry.
The Court does not accept that, given recent amendments to federal law
extending benefits to same-sex couples, same-sex couples are
afforded equal treatment under the law. In many instances, statutory rights and obligations do not attach until the same-sex couple has been
cohabiting for a specified period of time. Married couples, on the other hand, have instant access to all attendant rights and obligations.
Additionally, not all marital rights and obligations have been extended to cohabiting couples. Further, s. 15(1) of the Charter guarantees more
than equal access to economic benefits; it requires a consideration of whether persons and groups have been excluded from fundamental
societal institutions. Exclusion from marriage – a fundamental societal institution – 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.
Violation of s. 15(1) of the Charter is not justified under s. 1 of the Charter:
The Court holds that the Attorney General of Canada has failed to demonstrate
that the violation of the equality rights of the Couples is justified in
a free and democratic society under s. 1 of the Charter.
First, the Attorney General of Canada did not demonstrate any pressing
and substantial objective for maintaining marriage as an exclusively
heterosexual institution. A law whose purpose is uniting the two opposite sexes has the result of favouring one form of relationship over another,
and suggests that uniting two persons of the same sex is of lesser importance. The encouragement of procreation and child-rearing does not
require the exclusion of same-sex couples from marriage. Heterosexual couples will not stop having or raising children because same-sex
couples are permitted to marry. An increasing percentage of children are born to and raised by same-sex couples. Although a union of two
persons of the opposite sex is the only union that can “naturally” procreate, it is not a sufficiently pressing and substantial objective to justify
infringing the equality rights of same-sex couples.
Second, the Attorney General of Canada did not demonstrate that the
means chosen to achieve its objectives are reasonable and justified in
free and democratic society. The opposite-sex requirement in marriage is not rationally connected to the encouragement of procreation and
child-rearing. The law is overinclusive because the ability to naturally procreate and the willingness to raise children are not prerequisites of
marriage for opposite-sex couples. The law is underinclusive because it excludes same-sex couples that have and raise children.
Companionship also is not rationally connected to the exclusion of same-sex couples. Gay men and lesbians are as capable of providing
companionship to their partners as persons in opposite-sex relationships. Additionally, the opposite-sex requirement in the definition of
marriage does not minimally impair the rights of the Couples. Same-sex couples have been completely excluded from a fundamental societal
institution. Complete exclusion cannot constitute minimal impairment.
The common law definition of marriage is inconsistent with the Charter
to the extent that it excludes same-sex couples. The remedy that best
corrects the inconsistency is to declare invalid the existing definition of marriage to the extent that it refers to “one man and one woman” and to
reformulate the definition of marriage as “the voluntary union for life of two persons to the exclusion of all others”. This remedy achieves the
equality required by s. 15(1) of the Charter but ensures that the legal state of marriage is not left in a state of uncertainty.
The Court does not accept that the only remedy that should be ordered
is a declaration of invalidity and that the declaration should be
suspended to permit Parliament to respond. A declaration of invalidity alone fails to meet the Court’s obligation to reformulate a common law
rule that breaches a Charter right. A temporary suspension allows a state of affairs that has been found to violate standards embodied in the
Charter to persist for a time despite the violation. A temporary suspension is warranted only in limited circumstances, such as where striking
down the law poses a potential danger to the public, threatens the rule of law, or would have the effect of denying benefits under the law to
deserving persons. There is no evidence that these limited circumstances exist here.