Saskatchewan Joins Marriage Drive

Seventh Canadian province, territory approves marriage for gay, lesbian couples

Make it seven in a row. On November 5, Justice Donna Wilson of the Court of Queen’s Bench in Saskatoon, Saskatchewan, ruled that the province must immediately begin issuing marriage licenses to same-sex couples in light of the new common law definition of marriage that has been adopted by appellate courts in three other provinces.

This makes the seventh consecutive ruling in favor of same-sex marriage in Canada since the Ontario Court of Appeal issued its breakthrough decision in the Halpern case on June 10, 2003.

Actually, apart from one trial judge in British Columbia whose opinion was reversed by the British Columbia Court of Appeal, also in 2003, every Canadian judge who has confronted the issue over the past year and a half has concluded that exclusion of same-sex partners from the rights and benefits of marriage violates Canada’s Charter of Rights and Freedoms.

The only difference of opinion among the judges in the first several cases was whether the remedy should be immediate or, as was at first held at the trial level in Ontario and in the first ruling by the British Columbia Court of Appeal, delayed a few years to give the Parliament time to pass legislation. The Halpern court broke that impasse by ordering an immediate remedy in Ontario, and even retroactively validating a marriage that had been performed in Toronto’s Metropolitan Community Church early in 2001.

At this point, the remaining holdout provinces are becoming increasingly isolated on the wrong side of an overwhelming jurisprudential trend in Canada. This was certainly the impression one would get from reading Justice Wilson’s decision in N.W. and J.R. v. Attorney General of Canada.

The case was filed by five same-sex couples seeking marriage licenses, who had been turned down by the local agency that issues licenses in their province. Those provinces that have not yet authorized same-sex marriage have been taking the position that they will not voluntarily issue licenses, but will not—with the possible exception of Alberta—oppose lawsuits, so Wilson reported that neither the attorney general of Canada nor the attorney general for Saskatchewan was opposing the plaintiffs’ request for relief, although—perhaps for symbolic reasons—they continued to oppose the plaintiffs’ demand that their court costs be paid by the government. Wilson had little sympathy for the government on that issue, ordering the national and local governments to split the costs and awarding to the plaintiffs the full $10,000 they were demanding.

After pointing out that the highest appeals courts in British Columbia, Quebec and Ontario had all decreed that the common law definition of marriage in Canada must be changed to “the lawful union of two persons to the exclusion of all others,” and thus be made inclusive of same-sex couples, and reciting a few sentences of the reasoning from the Halpern decision, Wilson simply stated, “I agree.”

After Wilson issued her order directing the agency that issues marriage licenses in Saskatchewan to get to work, there were news reports that several licenses were quickly issued and marriages started occurring over the weekend.

At the beginning of October, the Supreme Court of Canada heard two days of arguments from more than two-dozen attorneys representing a wide variety of interest groups in addition to the government, on questions referred to the court by the government last year concerning the issue of marriage.

Comments by the justices led many observers to believe that the Court will return its advisory opinion to Parliament sometime next year and that the Liberal Party leadership will be in a position to call a vote on a nationwide non-discriminatory marriage definition.

Same-sex marriage licenses are now being issued in Ontario, Quebec, British Columbia, Manitoba, Nova Scotia and the Yukon Territory in addition to Saskatchewan.

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