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Yukon judge finds nationwide precedent already exists

Finding that decisions by three provincial courts of appeals, which the Canadian federal government has refused to appeal, have made a national precedent, Yukon Territory Supreme Court Justice Peter McIntyre ordered that a marriage license be issued to Stephen Dunbar and Robert Edge.

McIntyre issued his decision orally from the bench on July 14, and then released an edited version on July 30. In effect, McIntrye declared, Canada’s common law definition of marriage has changed for the whole country, not just for the provinces of British Columbia, Ontario and Quebec, where the appeals courts had ruled during the past several years.

Dunbar and Edge had hoped to marry on July 17, but when they sought a license this past January from the provincial Vital Statistics Office, they were told that the Yukon still followed the old federal common law definition of marriage as the union of one man and one woman, and would do so until such time as Parliament acted or a court instructed to the contrary.

However, noting that under Canadian law a marriage can proceed without a license and then be submitted for registration after the fact, the Territorial Registrar advised Dunbar and Edge to go ahead and have banns published, have their ceremony, and then after either Parliament or the Canadian Supreme Court had ruled on the issue, the Territory could accept their application for filing retroactive to July 17.

Dunbar and Edge were unwilling to settle for less than equal treatment, and filed suit against the Yukon government. Justice McIntyre, who presides part-time in Yukon when not filling his full-time position as a Supreme Court justice in the province of Alberta, refused to accept the government’s view that there was any good reason to refuse a license to the applicants, since the government itself has conceded that the old common law rule violates the Canadian Charter of Rights and Freedoms, as the courts of British Columbia, Ontario and Quebec previously found.

McIntyre also noted the British Columbia Court of Appeals ruling a year ago, which revisited an earlier decision that had found the existing common law rule invalid but stayed the remedy until July of this year to allow the federal Parliament to act. The second British Columbia ruling abandoned that remedy after the Ontario court issued its historic June 2003 decision, refusing the government’s request for a stay and ordering an immediate remedy of opening up marriage to same-sex couples. The plaintiffs in British Columbia then successfully persuaded the court that to sanction same-sex marriages in Ontario while residents of British Columbia had to wait another year was inequitable and itself a violation of the Charter.

Earlier this year, the Quebec Court of Appeals accepted the same argument and refused to stay a decision it had issued in 2002. The Quebec court acted even though two successive prime ministers, Jean Chretien and then Paul Martin, had put the federal issue in limbo by submitting questions to the Supreme Court of Canada for advisory rulings concerning a proposed new marriage law for the nation.

In light of developments in Ontario, British Columbia and Quebec, and notwithstanding the clear effort by the ruling Liberal Party to defer a resolution on the marriage issue until after the federal elections which were held in June, McIntyre saw no need to wait. In fact, he was even somewhat scornful of the position taken by Irwin Cotler, Canada’s attorney general, who intervened in the Yukon case in support of the local government’s effort to delay a remedy, for its inconsistencies.

“I do not consider it open to the Attorney General of Canada to ask this court to defer to the Reference and to Parliament,” McIntyre wrote. “The capacity to marry is a federal issue… It is legally unacceptable in a federal constitution area involving the Attorney General of Canada for a provision to be inapplicable in one province and in force in all others. As a result of the action or inaction of the Attorney General of Canada, in my view were I to agree with the request for an adjournment, a legally unacceptable result would be perpetuated in the Yukon.”

McIntyre also rejected the government’s suggestion that he needed to conduct a full trial on the merits of the constitutionality of the old common law rule, finding that with three provincial appeals courts having found it unconstitutional, and the government having waived its right to appeal directly to the Supreme Court of Canada, the issue has effectively been decided.

But the political sideshow instigated by the ruling Liberal Party has created legal complications in Canada. When Martin succeeded Chretien late last year, he added an additional question to those that his predecessor had posed to the Supreme Court earlier, asking the court specifically whether the existing common law definition violates the Charter. Raising that question gave Martin an end-run around the Liberal Party’s earlier decision, made under Chretien, not to appeal the Ontario and British Columbia rulings. It clearly delayed the Court’s response beyond the June elections—interested parties were given time to speak to the additional question and the Supreme Court’s resolution is not expected until this fall or winter.

None of this gave pause to McIntyre, who pointed out that the government’s query of the Supreme Court “is, of course, a question of consultati­on,” the ultimate outcome of which could not be predicted. What McIntyre faced was an immediate case pending before him, and a situation where the overwhelming majority of Canadians—Ontario, Quebec and British Columbia make up more than 70 percent of the nation’s population—now live in places where marriage licenses are being issued to same-sex couples. In light of this, simple justice required extending the same right to Dunbar and Edge, and any other same-sex couple in Yukon, according to McIntyre.

The matter appeared so clear-cut to McIntyre that he also ordered the government to pay the costs of the lawsuit, over the protest of both the territorial and national attorneys who appeared at the July 14 hearing. Dunbar and Edge got their wish—they legally married on July 17.

Politically, McIntyre’s role in the Yukon case raises interesting questions. Alberta is the province that has been most resolutely opposed to same-sex marriage, at least at the level of the elected political leaders, so court watchers are eager to see what happens if same-sex couples now apply for license there, where McIntyre is a full-time judge.

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Updated 5:17 pm, July 20, 2018
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