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Halpern v Canada (AG) (2003). 65 OR (3d) 161, 172 OAC 276, 225 DLR (4th) 529 (CA)

Facts:

Seven gay and lesbian couples want to get married. The Couples applied for a civil marriage license, the Clerk stated that she would have to go to the court for directions. At the same time the Metropolitan Community Chart of Toronto began to conduct marriages for homosexual couples. They submitted the documents for 2 marriages to the Office of the Registrar General, they refused to accept the documents as marriage registration. The MCCT launched its application in Court.

Issue(s):

Is a constitutional amendment required to change the definition of marriage, or can a reformulation be accomplished by Parliament or the courts?
Does the definition of marriage infringe MCCT’s right und ss.2(a) and 15(1) of the Charter?
Does the definition of marriage infringe on the couples equality rights under s.15(1) of the charter?
Is the infringement saved by s.1 of the Charter?
If the common law definition of marriage is unconstitutional, what is the appropriate remedy and should it be suspended for any period of time?

Ratio:

The common law definition of marriage infringed the claimants’ rights under s.15(1) of the Charter and that right was not saved by s.1 of the Charter.

Analysis:

The Parliament has authority to make law regarding the capacity to marry. To freeze the definition of marriage to whatever it was in 1867 is contrary to the way the country runs. The Constitution Act has the flexibility necessary to meet changing realities of Canadian society without the need for recourse to constitutional amendment procedures

To remedy infringements to the constitution we:
* declare existing definition of common law marriage to be invalid
* reformulate the definition – voluntary union for life of two persons to the exclusions of all others
* Have immediate effect
* Order the clerk of the City of Toronto to issue marriage licenses to the Couples

Holding:

Found that the common law definition of marriage infringed the claimants’ rights under s.15(1) of the Charter and that right was not saved by s.1 of the Charter.


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