Activists fighting for equal marriage are heralding the recent court win in the Yukon as a decisive victory. Egale Canada and Canadians For Equal Marriage are interpreting the verdict to mean that governmental opposition to same-sex marriage is now illegal in all jurisdictions.
“The decision means that provinces and territories that refuse to issue marriage licences to qualified same-sex couples are breaking the law,” stated Egale’s director of advocacy Laurie Arron in a press release.
Justice Peter McIntyre of the Yukon Supreme Court released his written decision late last week. In it he lays out the reasoning behind his judgment in the case of Rob Edge and Stephen Dunbar, a gay couple who had applied for, and were refused, a marriage licence in the Yukon.
“The Yukon case is the first of a new, second wave of cases,” says Martha McCarthy, co-counsel for Edge and Dunbar. “[The case was] launched after the government has failed to appeal, declined to appeal, done the draft bill, proposed the reference and everything.”
The difference between the cases is in part about the timing, but hinges more on what arguments were made in court.
In the Ontario, British Columbia and Quebec cases the lawyers took the stance that their clients faced discrimination under Section 15 of the Charter Of Rights And Freedoms, and that the Charter’s equality provisions should allow same-sex couples the same right to marry as heterosexuals.
“The argument [in the Yukon] proceeded in a much different way,” says McCarthy. “It was more of an enforcement case rather than a case that began at first principles.”
In the Yukon case, McCarthy, a lawyer with Epstein Cole, and her local co-counsel Jim Tucker, argued that since the federal government hadn’t appealed the other cases the matter was therefore one of “res judicata,” meaning that is was already decided under law.
As a result their clients were being openly discriminated against by the government, in large part because they didn’t live in BC, Ontario or Quebec.
McIntyre’s ruling states, “The Attorney General Of Canada concedes that the opposite-sex requirement for marriage is unconstitutional, as [sic] not consistent with the equality rights guarantee set out in section 15 (1) of the Charter, and is not justifiable.”
McCarthy explains that the federal government asked for the matter to be adjourned until after the reference to the Supreme Court is heard and decided, and until after Parliament responds.
“The concession of a breach of an equality guarantee is a very serious matter and they wanted the court to allow it to continue unabated for some unknown period of time,” says McCarthy.
McIntyre rejected this request. “The Attorney General Of Canada is not divisible by province…. The capacity to marry is a federal issue – it is legally unacceptable in a federal constitution area involving the Attorney General Of Canada for a provision to be inapplicable in one province and in force in all others.”
“It might be overstatement to say just the decision alone makes it easier [to win] but every decision adds to the weight of authority,” says McCarthy, who knows of a few potential cases currently under discussion in other provinces.
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