Court of Appeal File No. C39172

Court of Appeal File No. C39174

Court of Appeal for Ontario

BETWEEN:

HEDY HALPERN and COLLEEN ROGERS,

MICHAEL LESHNER and MICHAEL STARK,

MICHELLE BRADSHAW and REBEKAH ROONEY,

ALOYSIUS PITTMAN and THOMAS ALLWORTH,

DAWN ONISHENKO and JULIE ERBLAND,

CAROLYN ROWE and CAROLYN MOFFATT,

BARBARA McDOWALL and GAIL DONNELLY,

ALISON KEMPER and JOYCE BARNETT

Applicants

(Respondents in Appeal)

-and-

THE ATTORNEY GENERAL OF CANADA

THE ATTORNEY GENERAL OF ONTARIO, and

NOVINA WONG, THE CLERK OF THE CITY OF TORONTO

Respondents

(Appellant)

-and-

EGALE CANADA INC.,

METROPOLITAN COMMUNITY CHURCH OF TORONTO,

THE INTERFAITH COALITION ON MARRIAGE AND FAMILY, and

THE ASSOCIATION FOR MARRIAGE AND THE FAMILY IN ONTARIO

Interveners

-AND-

BETWEEN:

METROPOLITAN COMMUNITY CHURCH OF TORONTO

Applicant

(Respondent in Appeal)

-and-

THE ATTORNEY GENERAL OF CANADA,

THE ATTORNEY GENERAL OF ONTARIO

Respondents

(Appellant)

-and-

HEDY HALPERN and COLLEEN ROGERS,

MICHAEL LESHNER and MICHAEL STARK,

MICHELLE BRADSHAW and REBEKAH ROONEY,

ALOYSIUS PITTMAN and THOMAS ALLWORTH,

DAWN ONISHENKO and JULIE ERBLAND,

CAROLYN ROWE and CAROLYN MOFFATT,

BARBARA McDOWALL and GAIL DONNELLY,

ALISON KEMPER and JOYCE BARNETT

EGALE CANADA Inc.,

THE INTERFAITH COALITION ON MARRIAGE AND THE FAMILY, and

THE ASSOCIATION FOR MARRIAGE AND THE FAMILY IN ONTARIO

Interveners

-AND-

BETWEEN:

METROPOLITAN COMMUNITY CHURCH OF TORONTO

Applicant

(Appellant by

Cross-Appeal)

-and-

THE ATTORNEY GENERAL OF CANADA

Respondent

(Respondent

by Cross-Appeal)

THE ATTORNEY GENERAL OF ONTARIO

Respondent

(Respondent by Cross-Appeal)

-AND-

BETWEEN:

HEDY HALPERN and COLLEEN ROGERS,

MICHAEL LESHNER and MICHAEL STARK,

MICHELLE BRADSHAW and REBEKAH ROONEY,

ALOYSIUS PITTMAN and THOMAS ALLWORTH,

DAWN ONISHENKO and JULIE ERBLAND,

CAROLYN ROWE and CAROLYN MOFFATT,

BARBARA McDOWALL and GAIL DONNELLY,

ALISON KEMPER and JOYCE BARNETT

Applicants

(Appellants by Cross-Appeal )

-and-

THE ATTORNEY GENERAL OF CANADA

THE ATTORNEY GENERAL OF ONTARIO, and

NOVINA WONG, THE CLERK OF THE CITY OF TORONTO

Respondents

(Respondents by Cross-Appeal)

-and-

EGALE CANADA INC.,

METROPOLITAN COMMUNITY CHURCH OF TORONTO,

THE INTERFAITH COALITION ON MARRIAGE AND FAMILY, and

THE ASSOCIATION FOR MARRIAGE AND THE FAMILY IN ONTARIO

Interveners

FACTUM OF THE CANADIAN HUMAN RIGHTS COMMISSION

Statement of Facts Relied on by the Commission

1. The Commission relies on the facts as they are set out in the affidavit of Richard Tardif,

sworn February 14, 2003:

1. The Commission was created by a 1977 Act of Parliament, and began its work

one year later when it opened its doors in 1978.

2. The Commission commented on the issue of sexual orientation discrimination in

its annual report of 1979. In 1979, the Commission hired a consultant to prepare a

report which recommended the addition of sexual orientation as a prohibited

ground of discrimination in the Canadian Human Rights Act (“Act”).

3. The Commission is responsible for the administration of and the promotion of the

objectives of the Act. The purpose of the Act is to:

“...extend the laws in Canada, to give effect, within the purview of

matters coming within the legislative authority of Parliament, to

the principle that all individuals should have an opportunity equal

with other individuals to make for themselves the lives that they

are able and wish to have and to have their needs accommodated,

consistent with their duties and obligations as members of society,

without being hindered in or prevented from doing so by

discriminatory practices based on race, national or ethnic origin,

colour, religion, age, sex, sexual orientation, marital status, family

status, disability or conviction for an offence for which a pardon

has been granted.”

4. The Commission is a public interest body working to further equality

in Canada and to eradicate discrimination. The Commission has

developed expertise in evaluating equality rights claims, assessing the

impact of exclusionary acts on the dignity of an individual and

assessing the justifications which are proferred for exclusionary rules.

5. The Commission carries out a conventional complaints-processing

function, but it also promotes awareness of and tries to eliminate

discriminatory practices and attitudes through a variety of other tools.

Generally, the Commission is mandated to try by “persuasion,

publicity or any other means that it considers appropriate to discourage

and reduce discriminatory practices”, but it is also empowered to

“...review any regulations, rules, orders, by-laws and other

instruments...and comment on any provision thereof that in its opinion

is inconsistent with the (above-stated) principle”; “...conduct

information programs to foster public understanding...”; “...undertake

or sponsor research programs...”; “...carry out studies concerning

human rights and freedoms...”, and issue annual and special reports.

6. The Commission uses these tools to promote equality and to combat

discrimination against Canadians on any and all of the prohibited

grounds. The Commission has conducted policy-oriented

investigations of suspected incidences of systemic discrimination,

issued special studies and reports, drafted policies, commented on

legislation in its annual reports, conducted information seminars and

made speeches and presentations. The Commission’s objectives and

routine work include not only the prevention and eradication of

discriminatory behaviour, but also the contextual identification of

exclusionary rules as discriminatory, and the assessment of whether the

grant of rights to one group constitutes infringements of the rights of

others.

7. The Commission regards the purpose of the Act as empowering the

organization with a broad mandate to inform, educate and at times,

challenge the federal government to legislate in a manner which is

consistent with the purpose of the Act even if the subject matter of the

legislation does not fall directly within the jurisdiction of the

Commission’s complaint processing function.

8. The Commission urged Parliament, since its inception, to include

sexual orientation as a prohibited ground of discrimination under the

Act, and did so by way of its Annual Reports, and by other public and

parliamentary committee pronouncements. Sexual orientation was

added to the list of prohibited grounds of discrimination in 1996.

Since that time, the Commission has been accepting, investigating,

mediating and litigating complaints of discrimination on the ground of

sexual orientation. Prior to 1996, the Commission attempted to address

sexual orientation discrimination through the grounds of marital and

family status.

9. In addition the Commission provided advice to the Federal

Government on Bill C23, now the Modernization of Benefits and

Obligations Act, (2000) c.12. The Commission appeared before the

Standing Committee on Justice and Human Rights on March 21,

2000 and before the Senate Standing Committee on Legal and

Constitutional Affairs on May 21, 2000.

10. The Commission will appear before the Parliamentary Standing

Committee on Justice and Human Rights as they conduct public

hearings into the issue of same-sex marriage. The Commission will

encourage the federal government to ensure that same-sex couples

have the capacity to marry, which is, in the Commission’s view, the

only option which is consistent with human rights principles including

the Charter.

11. The Commission has been granted leave to intervene in appeals, in

particular in those cases in which discrimination on the basis of sexual

orientation was at issue. For example, the Commission intervened in

Haig v. Canada (1992), 9 O.R.(3d) 495 (C.A.), Vriend et al. v. The

Queen in right of Alberta (1996), 141 D.L.R. (4th

) 44, Vriend v.

Alberta, [1998] 1 S.C.R. 493 and Egan v. Canada (A.G.), [1995] 2

S.C.R. 513.

12. In its 2001 Annual Report, the Commission commented on the right of

same-sex couples to access to civil marriage. It cited, with agreement,

the finding of the Law Commission of Canada that “there is no

justification for maintaining the current distinctions between same-sex

and heterosexual conjugal unions... If governments are to continue to

maintain an institution called marriage, they cannot do so in a

discriminatory fashion.”

13. The Commission also stated that it:

“...recognizes and respects that for many, marriage is a sensitive

issue bound with deeply felt religious beliefs and cultural

practices. It is, nevertheless, also a reality that there are many

gay and lesbian Canadians living today in long-term committed

relationships, caring for each other, and raising families together.

They are entitled to respect and dignity and should be afforded the

same recognition in law as opposite-sex couples.”

Annual Report 2001, p. 19, Exhibit B.

14. The Commission has considerable expertise in analyzing issues of

discrimination, in identifying both express and more subtle forms of

discrimination, in contextualizing practices and rules that may not

appear on their face to be discriminatory, in deconstructing

explanations for discriminatory rules, in exposing and combatting

prejudice, and in promoting awareness and understanding of

discrimination. The Commission also has much experience in

evaluating cases which raise or which appear to raise issues of

competing rights, including in determining whether the grant of rights

to one individual or group has the effect of infringing the rights of

others, or whether the grant of rights is only in opposition to the beliefs

or tenets of another individual or group.

15. The Commission similarly has expertise in understanding the historical

disadvantages that same-sex couples have suffered, and in assessing

the legitimacy and proportionality of rules which exclude same-sex

couples from societal institutions.

16. The factum of the Attorney General of Canada makes reference to the

“clear and unequivocal intention of Parliament” with respect to the

definition of marriage which can be drawn by necessary implication

from the terms of statutes related to marriage. The factum does not

include any reference to the Act and Parliament’s express legislative

intention with respect to discrimination on the basis of sexual

orientation, marital status and family status.

17. If the Commission is granted intervenor status in these appeals,

the position of the Commission will be:

1. To the extent that these appeals engage the constitutional

authority of the federal government to define capacity to marry,

it is consistent with the values embodied in the Act and the

Charter and the trend in human rights jurisprudence toward

inclusivenss and diversity, to ensure that same-sex couples

have the capacity to marry.

2. That the Divisional Court was correct in finding a violation of

section 15 which could not be saved by section 1. That the

Divisional Court erred in dismissing the application of the

Metropolitan Community Church of Toronto. That the

Divisional Court erred in not ordering the immediate issuance

of marriage licenses to the respondent couples and the

immediate registration of the marriages performed by the

Metropolitan Community Church of Toronto.

3. That it will be helpful to the Court in conducting a contextual

analysis of the issues engaged by the appeals to consider the

full context in which these appeals arise. There is on the

appellants side, for example, considerable focus on the

historical, sociological, religious and anthropological role of

marriage in fostering and protecting heterosexual unions. The

full context of this case includes an examination of the human

rights protections for same-sex couples which have evolved

toward inclusiveness and diversity.

4. The full context of this case also includes the Canadian Human

Rights Act, which, like the Charter, is an important

expression of Parliament’s commitment to human rights and to

eradicating discrimination on the basis of sexual orientation,

marital status and family status. There is no equivalent

legislative expression on the part of Parliament on the subject

of same-sex marriage and this factor is important in any

assessment of Parliament’s intention with respect to same-sex

marriage.

5. The Commission is non-partisan and experienced in balancing

rights based on sexual orientation and religious discrimination.

On the issue of sexual orientation discrimination, there is no

“balancing” required between the “rights” of those who wish to

preclude same-sex couples from marrying on the basis of

committed religious beliefs and “rights” of those who are

currently being denied marriage licenses.

6. On the issue of religious discrimination, only the rights of the

Metropolitan Community Church of Toronto are engaged by

these appeals. There is no “balancing” required. These appeals

do not engage the question whether individual clergy or

congregations who oppose same-sex marriage will be forced to

perform same-sex marriages. However, the performance of

same-sex marriages is an important aspect of the Appellant’s

faith, and those marriages should be registered just as they are

for other religious groups.

7. That any justification premised on the express desire to

maintain a “tradition” of excluding same-sex couples from

marriage is a discriminatory justification.

8. The only remedy consistent with the principles developed in

the human rights context, including the Charter, is one which

rejects the “separate but equal” doctrine and provides full

recognition of same-sex marriage.

9. In addition, it is inconsistent with human rights principles

including the Charter and the values embodied in the Act to

suspend the remedy and allow the discriminatory practices

which are the subject of these appeals to persist.

18. If the Commission is granted intervenor status, the Commission will

not seek to adduce new evidence, will not repeat the submissions of

the other parties and intervenors, will file a factum by March 13, 2002

consistent with the prior agreement of the parties for the filing of

factums, will limit its oral submissions to 15 minutes and will not

seek costs or seek to delay the hearing of the appeals in any way.

Statement of the Law Relied on by the Commission

Rules

1. The Commission’s intervenor application was commenced pursuant to the

following Rules:

13.02 Any person may, with leave of a judge or at the invitation of the

presiding judge or master, and without becoming a party to the proceeding,

intervene as a friend of the court for the purpose of rendering assistance to the

court by way of argument.

13.03 (2) Leave to intervene as an added party or as a friend of the court in the

Court of Appeal may be granted by a panel of the court, the Chief Justice of

Ontario or the Associate Chief Justice of Ontario.

Ontario Rules of Civil Procedure, Rule 13.02, 13.03(2), Tab 11 Commission

Book of Authorities.

Onus

2. The onus rests on the proposed intervenor to establish that it has met the

requirements of the rule and should therefore be permitted to intervene in the

proceeding.

Halpern v. Toronto (City) Clerk, 51 O.R. 3d, 742, [2000] O.J. No. 4514, Tab 6

Commission Book of Authorities, paragraph 6.

Test for Intervenor Status

3. Factors to be considered on a motion to intervene as a friend of the court are

the nature of the case, the issues which arise and the likelihood of the

applicant being able to make a useful contribution to the resolution of the

appeal without causing injustice to the immediate parties.

Peel (Regional Municipality) v. Great Atlantic & Pacific Co. Of Canada Ltd,

(1990), 74 O.R. (2d) 164, Tab 1 Commission Book of Authorities, page 3

4. In constitutional cases, including cases under the Charter, there has been a

relaxation of the rules governing applications for leave to intervene and an

increase in the desirability of permitting intervention because the judgments in

these cases have a great impact on others who are not immediate parties. This

approach ensures that the court will have the benefit of various

perspectives of the historical and sociological context, as well as policy

and other considerations that bear on the validity of legislation.

Peel, supra, Tab 1 Commission Book of Authorities, page 3

Authorson (Litigation guardian of) v. Canada (Attorney General), [2001]

O.J. No. 276 , Tab 8 Commission Book of Authorities,

paragraph 7.

Adler v. Ontario (1992), 8 O.R. (3d) 200, Tab 2 Commission Book of

Authorities, page 6.

5. Where intervenor status is granted to a public interest group, either as

a party or as a friend of the court, at least one of the following criteria

is usually met:

(a)

the intervenor has a real, substantial and identifiable interest in the

subject matter of the proceedings;

(b)

the intervenor has an important perspective distinct from the

immediate parties; or

(c)

the intervenor is a well recognized group with a special expertise and

with a broad identifiable membership base.

Ontario (Attorney General) v. Dieleman (1993), 16 O.R. (3d) 32, Tab 4

Commission Book of Authorities, page 5.

6. In Mossop, LaForest J., commented on the role of the Canadian Human Rights

Commission:

“The Human Rights Commission undoubtedly serves many useful

functions that help to educate, inform and advise the government, the

public and the courts on matters of human rights”.

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, Tab 3

Commission Book of Authorities, page 584.

7. In her dissent in Mossop, L’Heureux-Dubè J. commented on the role of the

Canadian Human Rights Commission:

“As for the Commission itself, Parliament unquestionably intended to

create a highly specialized administrative body, one with sufficient

expertise to review Acts of Parliament and, as specifically provided for

in the Act, to offer advice and make recommendations to the (Minister)

of Justice. In the exercise of its powers and functions, the Commission

would inevitably accumulate expertise and specialized understanding

of human rights issues, as well as a body of governing jurisprudence.

The work of the Commission and its tribunals involves consideration

and balancing of a variety of social needs and goals, and requires

sensitivity, understanding, and expertise.”

Mossop, supra, Tab 3 of the Commission Book of Authorities, page 609.

8. The concept of “separate but equal” treatment, which was challenged by the

Commission in Moore was adopted by the Divisional Court in Halpern in

rejecting the argument of the Attorney General of Canada that the benefits

afforded through the institution of marriage can be remedied by amendment to

the legislation that otherwise grants benefits to co-habiting couples.

Halpern v. Canada (Attorney General) (2002), 60 O.R. (3d) 321, Tab 12

Commission Book of Authorities

Canada (Attorney General) v. Moore, [1998] 4 F.C. 585, Tab 5 Commission

Book of Authorities

9. There are currently two other same-sex marriage cases before courts of appeal

in British Columbia (EGALE Canada Inc. v. Canada (Attorney General))and

Quebec (Hendricks). The Commission was refused intervener status in

EGALE Canada Inc. v. Canada (Attorney General) and granted intervener

status in Hendricks

EGALE Canada Inc. v. Canada (Attorney General), [2002] B.C.J. No. 2957,

Tab 9 Commission Book of Authorities.

Procureur général du Canada c. Hendricks, [2003] J.Q. no. 343; Ligue

catholique pour les droits de l’homme c. Hendricks, [2003] J.Q. no. 344, Tab

10 Commission Book of Authorities.

10 It is true that the intervention will expand the number of submissions that the

responding party will be obliged to reply to but this, which is for the potential

benefit of the court, is not an injustice.

Louie v. Lastman (2001), 208 D.L.R. (4th

) 380, Tab 8 Commission Book of

Authorities.

All of which is respectfully submitted this 14th

day of February, 2003.

Leslie A. Reaume

Andrea Wright

Solicitors for the Canadian Human Rights Commission