Defining Marriage, Step One: EGALE v. Canada
![handle is hein.journals/alblr39 and id is 973 raw text is: EGALE v. CANADA 963
DEFINING MARRIAGE, STEP ONE:
EGALE v. CANADA
JULIE C. LLOYD*
I. INTRODUCTION
The decision of Justice Pitfield of the Supreme Court of British Columbia in EGALE
v. Canada' is the first of what is likely to be many decisions on same-sex marriage
emerging from Canadian courts in the next few years.
Many interested onlookers assumed that the issue would be resolved under the
Canadian Charter of Rights and Freedoms.' The decision, however, considered the
application of the Charter only in the alternative. The ratio arose from an interpretation
of the Constitution Act, 1867.3
II. THE FACTS
Seven same-sex couples applied to the Director of Vital Statistics for the Province of
British Columbia for a marriage licence. The Marriage Act' is drafted in gender-neutral
terms and contains no express requirement of heterosexuality. The Director declined to
issue licences to the petitioners because in his view the federal common law governing
the capacity to marry did not include marriage between two persons of the same sex. The
couples were joined by Equality for Gays and Lesbians Everywhere (EGALE) Canada
and petitioned the court for declaratory relief and for an order requiring the Director to
issue the licences.
III. THE DECISION
Justice Pitfield denied the petitioners' application. He found that while the term
marriage was not defined in any federal statute, the term had been conclusively defined
at common law and in the public consciousness prior to the enactment of the Constitution
Act, 1867.
That marriage had been defined was demonstrated by the House of Lords decision
in Hyde v. Hyde and Woodmansee, rendered a few months before Confederation.
Heterosexuality was one element of this common law definition, and, accordingly, the
term marriage, as employed in s. 91 of the Constitution Act, 1867 conferred to
Parliament the power to legislate in relation to heterosexual marriage alone.
Barrister and Solicitor, Edmonton, Alberta.
EGALE Canada v. Canada (A.G.), [2001] B.C.J. No. 1995 (S.C.), online QL (BCJ).
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B
to the Canada Act 1982 (U.K.), 1982, c. I I [hereinafter Charter]. See D. Casswell, Moving Toward
Same Sex Marriage (2001) 80 Can. Bar Rev. 810 for a helpful analysis of the Charter issues.
3 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5.
Marriage Act, R.S.B.C. 1996, c. 282.
(1866), L.R. I P. & D. 130 [hereinafter Hyde].](ViewImageLocal?handle=hein.journals/alblr39&div=47&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Defining Marriage, Step One: EGALE v. Canada
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most