My attention has been drawn to a thread, now closed, in which a debate about the legal status of gay marriage in Canada has arisen.
I used to sit as a Tribunal deciding cases under the Ontario Human Rights Code, and including cases having to do with discrimination and gay rights, and so have some knowledge in this field.
In the thread cited above, a US gay rights newsletter was the source of some information about the state of Canadian law, but the article was not entirely correct.
The article claims that the case involving an application by EGALE to declare the definition of "marriage" (basically, opposite-sex partners only) was discriminatory, was decided by BC's highest court.
But it was actually decided by the lowest BC Court having jurisdiction, the BC Supreme Court.
It is a decision of one judge. The highest court in BC is the BC Court of Appeal, which has not yet dealt with the topic.
The individual judge made a very odd ruling. He said that, because "marriage" was understood in 1867 to mean marriage between partners of opposite sexes, therefore the fact that "marriage" comes under a Federal head of power, therefore the understanding of 1867 becomes part of the Constitution, and therefore it cannot be changed except as a Constitutional amendment.
This is an extremely unconvincing argument, almost certain to be overturned by a higher court. Here are some reasons: 1)Historically, this very same argument was used in the "persons" case. The Courts held that women were not persons because, in 1867, they did not have the status of "persons" in law. This decision is widely viewed as laughable evidence of hidebound conservatism, and a parallel argument here will almost certainly be given short shrift.
2) Supreme Court jurisprudence about how to interpret words in the constitution is quite explicit that this sort of interpretative exercise
is inappropriate. Some examples show why:
In 1867 "war" was understood to involve two states in disagreement. So, if Parliament wishes to wage "War" on Al Quaida it would require a Constitutional amendment?
Another example: The Federal government has jurisdiction over interprovincial communication. In 1867, the internet was not thought to be part of such communication. Therefore, by this reasoning, yet another constitutional amendment would be required before legislation could be passed.
In his reasons, the individual judge makes this interpretative leap, and then claims that since his definition of "marriage" is (implicitly) part of the Constitution, it cannot be set aside by the explicit ban on discrimination in s. 15.
This is also highly unlikely to be upheld on appeal. The case referred to as a precedent is one in which explicit reference to Catholic schools and explicit reference to non-discrimination are held to be of equal status as parts of the constitution. Therefore, one cannot be used to strike down the other. That is a basic legal idea, but it is a far cry from the practice of this judge, who basically smuggles his definition of marriage into the Constitution, and then says even Parliament cannot touch it.
The judge also says that if he is wrong about this analysis, then he finds the definition discriminatory, but "saved by s. 1". This is a much more probable outcome, which would leave it up to Parliament to decide whether to change the law.
Even here, though, for s. 1 to apply, the definition which excludes gay marriage would have to be "demonstrably justified in a free and democratic society." My own opinion is that it cannot be. But obviously there is room for disagreement on this.
To me, it is clear that, whatever happens, Parliament's right to pass legislation cannot be seriously denied.
Finally, for those interested, the actual case can be found, here: