COURT OF APPEAL FOR ONTARIO -- WHICH WAY AND WHY ?

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Date Posted: 10:54:09 09/29/03 Mon
Author: ROBERT EDE perJFH
Subject: COURT OF APPEAL FOR ONTARIO

http://www.ontariocourts.on.ca/decisions/2003/june/halpernC39172.htm

DATE: 20030610
DOCKET: C39172 and C39174

COURT OF APPEAL FOR ONTARIO

MCMURTRY C.J.O., MACPHERSON and GILLESE JJ.A.

BETWEEN:

HEDY HALPERN and COLLEEN ROGERS, MICHAEL LESHNER and MICHAEL STARK, ALOYSIUS PITTMAN and THOMAS ALLWORTH, DAWN ONISHENKO and JULIE ERBLAND, CAROLYN ROWE and CAROLYN MOFFATT, BARBARA MCDOWALL and GAIL DONNELLY, ALISON KEMPER and JOYCE BARNETT

Applicants
(Respondents, Appellants
by way of cross-appeal)
- and -

ATTORNEY GENERAL OF CANADA, THE ATTORNEY GENERAL OF ONTARIO, and NOVINA WONG, THE CLERK OF THE CITY OF TORONTO

Respondents
(Appellant, Respondent
by way of cross-appeal
149] We reject the AGC�s submission that the only remedy we should order is a declaration of invalidity, and that this remedy 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. Lamer C.J.C. highlighted this obligation in Swain at 978:

[B]ecause this appeal involves a Charter challenge to a common law, judge-made rule, the Charter analysis involves somewhat different considerations than would apply to a challenge to a legislative provision. �

Given that the common law rule was fashioned by judges and not by Parliament or a legislature, judicial deference to elected bodies is not an issue. If it is possible to reformulate a common law rule so that it will not conflict with the principles of fundamental justice, such a reformulation should be undertaken.

No argument was presented to us that the reformulated common law definition of marriage would conflict with the principles of fundamental justice. Nor is there any issue that the reformulated definition would violate the Charter.

[150] In addition to failing to fulfil the court�s obligation, a declaration of invalidity, by itself, would not achieve the goals of s. 15(1). It would result in an absence of any legal definition of marriage. This would deny to all persons the benefits of the legal institution of marriage, thereby putting all persons in an equally disadvantaged position, rather than in an equally advantaged position. Moreover, a declaration of invalidity alone leaves same-sex couples open to blame for the blanket denial of the benefits of the legal institution of marriage, a result that does nothing to advance the goal of s. 15(1) of promoting concern, respect and consideration for all persons.

[151] We are also of the view that the argument made by the AGC and several of the intervenors that we should defer to Parliament once we issue a declaration of invalidity is not apposite in these circumstances. Schachter provides that the role of the legislature and legislative objectives is to be considered at the second step of the remedy analysis when a court is deciding whether severance or reading in is an appropriate remedy to cure a legislative provision that breaches the Charter. These considerations do not arise where the genesis of the Charter breach is found in the common law and there is no legislation to be altered. Any lacunae created by a declaration of invalidity of a common law rule are common law lacunae that should be remedied by the courts, unless to do so would conflict with the principles of fundamental justice.

[152] The third step remains to be considered, that is, whether to temporarily suspend the declaration of invalidity. As previously noted, the AGC argues for a suspension in order to permit Parliament an opportunity to respond to the legal gap that such a declaration would create. Again, Schachter provides guidance on the resolution of this issue. Lamer C.J.C. emphasized, at p. 716, that �[a] delayed declaration allows a state of affairs which has been found to violate standards embodied in the Charter to persist for a time despite the violation.� He stated, at pp. 715-16 and 719, that temporarily suspending a declaration of invalidity 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 deserving persons of benefits under the impugned law. Further, Lamer C.J.C. pointed out, at p. 717, that respect for the role of the legislature is not a consideration at the third step of the analysis:

The question whether to delay the application of a declaration of nullity should therefore turn not on considerations of the role of the court and the legislature, but rather on considerations listed earlier relating to the effect of an immediate declaration on the public [i.e. potential public danger, threat to the rule of law, or denial of benefit to deserving persons].

[153] There is no evidence before this court that a declaration of invalidity without a period of suspension will pose any harm to the public, threaten the rule of law, or deny anyone the benefit of legal recognition of their marriage. We observe that there was no evidence before us that the reformulated definition of marriage will require the volume of legislative reform that followed the release of the Supreme Court of Canada�s decision in M. v. H. In our view, an immediate declaration will simply ensure that opposite-sex couples and same-sex couples immediately receive equal treatment in law in accordance with s. 15(1) of the Charter.

[154] Accordingly, we would allow the cross-appeal by the Couples on remedy. We would reformulate the common law definition of marriage as �the voluntary union for life of two persons to the exclusion of all others�. We decline to order a suspension of the declaration of invalidity or of the reformulated common law definition of marriage. We would also make orders, in the nature of mandamus, requiring the Clerk of the City of Toronto to issue marriage licences to the Couples, and requiring the Registrar General of the Province of Ontario to accept for registration the marriage certificates of Kevin Bourassa and Joe Varnell and of Elaine and Anne Vautour.[3]

Robert Ede
291 Boisdale Ave,
Richmond Hill, Ontario
L4C 1R4
905-508-3454

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