| Halpern v Canada (AG) | |
|---|---|
 | |
| Court | Court of Appeal for Ontario |
| Full case name | Hedy Halpern and Colleen Rogers, Michael Leshner and Michael Stark, 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 v Attorney General of Canada, The Attorney General of Ontario, and Novina Wong, The Clerk of the City of Toronto |
| Decided | June 10, 2003 (2003-06-10) |
| Case history | |
| Appealed from | Ontario Superior Court |
| Court membership | |
| Judges sitting | Roy McMurtryC.J.O,James MacPherson,Eileen Gillese JJ.A. |
Halpern v Canada (AG), [2003] O.J. No. 2268[1] is a June 10, 2003 decision of theCourt of Appeal for Ontario in which the Court found that thecommon law definition ofmarriage, which defined marriage as between one man and one woman, violatedsection 15 of theCanadian Charter of Rights and Freedoms.
The roots of the case began in December 2000 at theMetropolitan Community Church of Toronto, when pastorBrent Hawkes began issuingbanns of marriage[2] in advance of performing wedding ceremonies for two same-sex couples—Kevin Bourassa and Joe Varnell, and Anne and Elaine Vautour—on January 14, 2001.[3] Because banns of marriage are accepted as a fully legal way to perform a marriage without the need for a city-issuedmarriage license, but marriages performed under either process require certification by the provincial registrar, the banns created a legal vacuum that would force a court case.[3]
Over the course of the year several other same-sex couples, among them Hedy Halpern and Colleen Rogers, andMichael Leshner and Michael Stark, joined the court challenge, which began hearings at theOntario Superior Court in November 2001.[4]
On July 12, 2002, the Superior Court ruled that marriage rights must be extended to same-sex couples, but it suspended the ruling for a period of two years to permit theLegislative Assembly of Ontario time to comply with the ruling through the legislative process.[5] However, as theConstitution of Canada provides that the definition of marriage is under federal jurisdiction while only the implementation is left to the provinces,[6] the decision left the situation unclear until the government ofJean Chrétien announced on July 29 that they would appeal.[7]
The Ontario Court of Appeal handed down its ruling on June 10, 2003.[8]
The unanimous Court found that the exclusion of same-sex couples was a clear violation of theCharter and moreover did not constitute a "reasonable infringement" undersection 1. In this respect the judgment followed much of what had been ruled elsewhere.[8]
The court also held that there was to be no suspension of the remedy as it applied to the general population, and that the new definition allowing same-sex couples to marry would take effect immediately.[8]
Leshner and Stark became the first gay couple to be issued a marriage license after the decision,[9] while Bourassa and Varnell and the Vautours became the first legally recognized same-sex marriages overall since their marriages were deemed legal as of the date of the original ceremonies.[8] A few months later, however, Bourassa and Varnell were denied entry to theUnited States when travelling to attend a human rights conference, because theUnited States Customs agent refused to accept the validity of their marriage.[10]
In the next two years following the decision, courts in seven of Canada's other nine provinces and one of its three territories also legalized same-sex marriage in their jurisdictions before theParliament of Canada passed theCivil Marriage Act in 2005.
The Globe and Mail, in choosing the "Nation Builders of the year," selected the judges involved in the case, namely Chief JusticeRoy McMurtry,Eileen Gillese and James MacPherson,[11] while the Canadian edition ofTime selected Stark and Leshner as its Canadian newsmakers of the year.[12]
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