Opinion of the court
The court responded to the questions as such:
- 1. With respect to s. 1: Yes. With respect to s. 2: No.
- 2. Yes.
- 3. Yes.
- 4. The Court exercises its discretion not to answer this question.
The Court began by considering the argument that the questions are not justiciable (i.e. lacks sufficient legal content, or where the nature of the question or the information provided does not permit the Court to give a complete or accurate answer) based on it being a political question. The Court resolutely dismissed this claim for these political considerations provide the context for, rather than the substance of, the questions before the Court, as in the Quebec Secession Reference .
The first question required the court to determine which head of power the law falls under. It was clearly determined that the pith and substance of the law was federal as it concerned marriage which is in the absolute federal jurisdiction under section 91(26) of the Constitution Act, 1867.
The Court then considered the impact of the common law definition of marriage on the new law. The applicable definition was from Hyde v. Hyde (1866) a polygamy case where Lord Penzance stated:
What, then, is the nature of this institution as understood in Christendom?...If it be of common acceptance and existence, it must needs have some pervading identity and universal basis. I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.
The Court rejected this definition by applying the living tree doctrine used in the famous Persons case , analogizing the exclusion of women from the common law definition of "persons" to that of same-sex couples.
The interveners had argued that the meaning of marriage is fixed into convention beyond the reach of the constitution as its old meaning is in practice for thousands of years across the entire globe. Moreover, they argued that the living tree doctrine is constrained within the "natural limits" of interpretation and cannot be stretched to anything the court would like it to be.
The Court rejected these claims, stating that they were not trying to find the definition of marriage, but were only examining whether a proposed meaning was within the definition. The meaning of marriage is not fixed to what it meant in 1867, but rather it must evolve with Canadian society which currently represents a plurality of groups.
However, the Court made sure to say that the legislation was only concerning "civil marriage as a legal institution" and has no effect on religious marriage.
Section 2 of the Act was considered to be ultra vires to Parliament, as its pith and substance related to who may (or must) perform marriages and falls within the subject matter allocated to the provinces under s. 92(12).
On considering the second question, the Court not only affirmed the validity of the legislation, they added that its purpose "flows from" the Charter. They further found that equality right of religious groups and opposite-sex couples are not undermined by the legislation, on the basis that the expansion of the Charter enriches society, and equality cannot be supported by denial of others from a benefit. When conflicts between rights arise, the Court said, it must be resolved by internal balancing of those rights, not denial of rights.
On the third question, the Court found that the religious freedom guarantee will protect those who disagree with performing same-sex marriages and even protect those who disagree with renting religious spaces for the purpose of same-sex marriage. Again, the Court reiterated that it is up to the provinces to legislate protection for religious groups.
The Court decided not to answer the fourth question as it served "no legal purpose". The federal government had already decided not to appeal the Helpren case in Ontario on the very issue and so there was no point examining it again. Also, the court wished to respect the lower-court decisions upholding same-sex marriage by letting them stand.
Canadian federalism involves the current nature and historical development of the federal system in Canada.
Same-sex marriage was progressively introduced in several provinces and territories of Canada by court decisions beginning in 2003 before being legally recognized nationwide with the enactment of the Civil Marriage Act on July 20, 2005. On June 10, 2003, the Court of Appeal for Ontario issued a decision immediately legalizing same-sex marriage in Ontario, thereby becoming the first province where it was legal. The introduction of a federal gender-neutral marriage definition made Canada the fourth country in the world, and the first country outside Europe, to legally recognize same-sex marriage throughout its borders. Before the federal recognition of same-sex marriage, court decisions had already introduced it in eight out of ten provinces and one of three territories, whose residents collectively made up about 90 percent of Canada's population. More than 3,000 same-sex couples had already married in those areas before the Civil Marriage Act was passed. In 2023, polling by Pew Research suggested that more than three-quarters of Canadian residents supported the legal recognition of same-sex marriage. Most legal benefits commonly associated with marriage had been extended to cohabiting same-sex couples since 1999.
Egan v Canada, [1995] 2 SCR 513 was one of a trilogy of equality rights cases published by the Supreme Court of Canada in the second quarter of 1995. It stands today as a landmark Supreme Court case which established that sexual orientation constitutes a prohibited basis of discrimination under section 15 of the Canadian Charter of Rights and Freedoms.
Pith and substance is a legal doctrine in Canadian constitutional interpretation used to determine under which head of power a given piece of legislation falls. The doctrine is primarily used when a law is challenged on the basis that one level of government has encroached upon the exclusive jurisdiction of another level of government.
Section 2 of the Canadian Charter of Rights and Freedoms ("Charter") is the section of the Constitution of Canada that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or corporation. These freedoms can be held against actions of all levels of government and are enforceable by the courts. The fundamental freedoms are freedom of expression, freedom of religion, freedom of thought, freedom of belief, freedom of peaceful assembly and freedom of association.
Canadian constitutional law is the area of Canadian law relating to the interpretation and application of the Constitution of Canada by the courts. All laws of Canada, both provincial and federal, must conform to the Constitution and any laws inconsistent with the Constitution have no force or effect.
R v Morgentaler was a decision by the Supreme Court of Canada invalidating a provincial attempt to regulate abortions in Canada. This followed the 1988 decision R. v. Morgentaler, which had struck down the federal abortion law as a breach of section 7 of the Canadian Charter of Rights and Freedoms. In 1993, the provincial regulations were ruled to be a criminal law, which would violate the Constitution Act, 1867. That Act assigns criminal law exclusively to the federal Parliament of Canada.
Reference Re Firearms Act is a leading constitutional decision of the Supreme Court of Canada on the division of powers regarding firearms legislation and the Canadian Firearms Registry. A unanimous Court held that the federal Firearms Act was constitutionally valid under the federal criminal law power.
In Canadian constitutional law, the doctrine of paramountcy establishes that where there is a conflict between valid provincial and federal laws, the federal law will prevail and the provincial law will be inoperative to the extent that it conflicts with the federal law. Unlike interjurisdictional immunity, which is concerned with the scope of the federal power, paramountcy deals with the way in which that power is exercised.
R v Hydro-Québec, [1997] 3 S.C.R. 213 is a leading constitutional decision of the Supreme Court of Canada. The Court held that the Canadian Environmental Protection Act, a law for the purpose of protecting the environment, constituted criminal law and was upheld as valid federal legislation.
Walter v Alberta (AG), [1969] S.C.R. 383 is a famous decision of the Supreme Court of Canada. The Court upheld the Albertan provincial Communal Properties Act of 1955, which among other things, restricted the amount of land that could be owned by Hutterites and Doukhobors. The Act required that those wishing to use land for communal colonies must first obtain the permission of the provincial government. It was intended to restrict communal use of land, but had the effect of discriminating against religious groups.
Ward v Canada (AG) is a leading Supreme Court of Canada decision on federalism. The Court re-articulated the "pith and substance analysis and upheld the regulations prohibiting sale of "blueback" seals for the valid purpose of "curtailing commercial hunting of young seals to preserve the fisheries as an economic resource".
Canadian Western Bank v Alberta [2007] 2 S.C.R. 3 is a landmark decision in Canadian constitutional law by the Supreme Court of Canada (SCC) relating to the division of powers between Federal and Provincial legislative bodies.
Reference Re Securities Act is a landmark opinion of the Supreme Court of Canada to a reference question posed on the extent of the ability of the Parliament of Canada to use its trade and commerce power.
Quebec (AG) v Lacombe, 2010 SCC 38, [2010] 2 SCR 453, is a decision of the Supreme Court of Canada on the nature of the ancillary powers that arise from the doctrine of pith and substance in Canadian constitutional law.
Reference Re Assisted Human Reproduction Act is an appeal from the Quebec Court of Appeal to the Supreme Court of Canada on a reference question posed as to the constitutional validity of the Assisted Human Reproduction Act that had been passed by the Parliament of Canada.
Marine Services International Ltd v Ryan Estate, 2013 SCC 44 is a leading case of the Supreme Court of Canada concerning the coexistence of Canadian maritime law with provincial jurisdiction over property and civil rights, and it marks a further restriction upon the doctrine of interjurisdictional immunity in Canadian constitutional jurisprudence.
Canada (AG) v PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 134 is a leading Supreme Court of Canada case dealing with the application of the criminal law and healthcare heads of power found in section 91 and section 92 of the Constitution Act, 1867 and the principles of fundamental justice in section 7 of the Canadian Charter of Rights and Freedoms.
Quebec (AG) v Canada (AG), 2015 SCC 14 is a Canadian constitutional law case concerning the federal government's ability to destroy information related to the Canadian long-gun registry pursuant to the federal criminal law power.
Murray‑Hall v Quebec , 2023 SCC 10 is a ruling of the Supreme Court of Canada in the area of Canadian constitutional law, specifically concerning the extent of the double aspect doctrine in the federal-provincial division of powers.
