Defining Marriage, Step One: EGALE v. Canada

Abstract

Many interested onlookers assumed that the issue would be resolved under the Canadian Charter of Rights and Freedoms. 2 The decision, however, considered the application of the Charter only in the alternative. The ratio arose from an interpretation of the Constitution Act, l 867. 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 Ad 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,S 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.