2011 SKCA 3, 2011 SKCA 3

Reference Re The Marriage Act, 1995 (Sask.) 1800 2011-01-10 2011 SKCA 3 Saskatchewan Court of Appeal CHRR Doc. 11-3000 In the Matter of Marriage Commissioners appointed under The Marriage Act, 1995, S.S. 1995, c. M-4.1 ; And In the Matter of a Reference by the Lieutenant Governor in Council to the Court of Appeal under The Constitutional Questions Act, R.S.S. 1978, c. C-29 Date of Decision: January 10, 2011 Before: Saskatchewan Court of Appeal, Klebuc C.J.S., Vancise, Richards, Smith and Ottenbreit JJ.A. Majority reasons by: Richards J.A. Concurred in by: Klebuc C.J.A. and Ottenbreit J.A.

Concurring reasons by: Smith J.A. Concurred in by: Vancise J.A. Docket No.: 1800 Appearances by: Michael Megaw, Q.C. and Scott Hopley, counsel appointed to argue in favour of the constitutional validity of the possible amendments to The Marriage Act, 1995 Reynold Robertson, Q.C., Sean Sinclair and Candice Grant, counsel appointed to argue against the constitutional validity of the possible amendments to The Marriage Act, 1995 Cynthia Petersen for Egale Canada Inc. Thomas Schuck and Ruth Ross for the Christian Legal Fellowship Dale Blenner-Hassett for the Canadian Fellowship of Churches and Ministers J.

Scott Kennedy and Faye Sonier for the Evangelical Fellowship of Canada Grace Mackintosh, Gerald Chipeur, Q.C., and Jill Wilkie for the Seventh-Day Adventist Church in Canada and the Manitoba- Saskatchewan Conference of the Seventh-Day Adventist Church Patrick Loran for Reverend Paul Donlevy Philip Fourie for Bruce Goertzen, Larry Bjerland and Désirée Dichmont Janice Gingell for the Saskatchewan Human Rights Commission Merrilee Rasmussen, Q.C. for the Canadian Civil Liberties Association Larry Kowalchuk for the Saskatchewan Federation of Labour, Solidarity and Pride Committee et al COURTS — court reference regarding same-sex marriage — CANADIAN CHARTER OF RIGHTS AND FREEDOMS — s. 1

(reasonable limits) and application of Oakes test — s. 2(a) (freedom of conscience and religion) — s. 15(1) (equality) — s. 32 (application of the Charter ) — CONSTITUTIONAL LAW — constitutional validity of non-human rights legislation — EQUALITY — equality in the administration, substance and benefit of the law — right to equality HUMAN RIGHTS — principles used to interpret the Charter applied to human rights legislation — human rights legislation subject to another enactment — balancing conflicting rights — EXEMPTIONS — human rights legislation — religion — DISCRIMINATION — definition of discrimination — religious beliefs as reasonable cause for discrimination RELIGION AND CREED — conflict between religious beliefs and other freedoms — SEXUAL ORIENTATION — public services or facilities denied — PUBLIC SERVICES AND FACILITIES — marriage commissioner services — government services denied —

INTERPRETATION OF STATUTES — legislative intent and case law as aids to

interpretation

Summary: The Court of Appeal for Saskatchewan ruled on a reference by the Lieutenant Governor in Council that two possible amendments to The Marriage Act, 1995 , would violate the equality rights of gay men and lesbians, contrary to the Canadian Charter of Rights and Freedoms . There were two concurring decisions. In 2004, the Supreme Court of Canada decided that same-sex marriage was legally valid, and enacted legislation redefining marriage to include such unions.

This led some marriage commissioners in Saskatchewan to refuse to solemnize same-sex marriage on the grounds that doing so would be contrary to their own religious beliefs. Three marriage commissioners filed human rights complaints alleging that the requirement that they perform same-sex marriages infringed their freedom of religion. The Saskatchewan Human Rights Commission dismissed these complaints on the grounds that the Government of Saskatchewan had not discriminated against the marriage commissioners, and alternatively did not have a duty to accommodate their religious beliefs.

A human rights complaint was filed against marriage commissioner Orville Nichols in 2005 because he refused to solemnize a wedding between two men on the grounds that it offended his religious beliefs. The Saskatchewan Human Rights Tribunal found that Mr. Nichols violated the Human Rights Code. The Court of Queen's Bench subsequently upheld this decision. In response to these legal proceedings, the Government of Saskatchewan asked the Court of Appeal to consider the constitutionality of two possible amendments to the The Marriage Act, 1995 .

The first amendment would allow a marriage commissioner appointed on or before November 5, 2004 (the date when the law on same-sex marriage changed), to decline to solemnize a marriage if performing the ceremony would be contrary to his or her religious beliefs. The alternative amendment would allow every commissioner, regardless of when he or she was appointed, to decline to solemnize a marriage if doing so would be contrary to his or her religious beliefs.

The Court found that there was no difference between the two possible amendments that would affect constitutional validity, and dealt with the amendments together. There are 372 marriage commissioners appointed by the Government of Saskatchewan. No person other than a member of the clergy or a marriage commissioner can solemnize a marriage. Marriage commissioners are public officials and only they can solemnize a non-religious wedding. Since the clergy in many religions will not marry same-sex couples, marriage commissioners provide an important service to gays and lesbians.

The root obligation of a marriage commissioner is to solemnize marriages in accordance with how marriage is legally defined from time to time. The effect of both possible amendments, the Court found, would be to create situations where a same-sex couple could be refused service by a marriage commissioner. In other words, both options will have the effect of drawing a distinction based on sexual orientation. Gay and lesbian couples will be treated differently than other people because of their sexual orientation.

It was argued that the impact of these amendments would be minor because a gay or lesbian couple refused by one marriage commissioner could find another who would marry them. The majority of the Court rejected this argument, finding that the impact of being refused can be very significant and genuinely offensive. A government official would not be permitted to refuse a service to a person because he is Black or First Nations or Jewish on the grounds that some other official would serve him. Being told "I won't help you because you are gay or lesbian but someone else will" is no different.

The Court found that the distinction created by the possible amendments would be discriminatory within the meaning of s. 15(1) of the Charter . The majority then considered whether the possible amendments would be a justifiable limit on the equality rights of gay/lesbian couples under s. 1 of the Charter . The majority determined that the objective of the amendments is to accommodate the religious beliefs of the marriage commissioners. The majority recognized this as "a pressing and substantial objective".

However, the proposed amendments would not minimally impair the rights of gay and lesbian couples nor would the salutary effects of the amendments for the marriage commissioners outweigh the deleterious effects for gay men and lesbians. It would be a significant step backward if, having won the difficult fight for the right to same-sex civil marriages, gay and lesbian couples could be shunned by the very people charged by the government with solemnizing their unions. Further, it would undermine a deeply entrenched and fundamentally important aspect of our system of government.

"In our tradition", the majority wrote, "the apparatus of the state serves everyone equally without providing better, poorer or different services to one individual compared to another by making distinctions on the basis of factors like race, religion or gender". The majority concluded that the possible amendments would violate s. 15 of the Charter and would not be justifiable under s. 1 . In a concurring minority opinion, Smith and Vancise JJ.A. examined the issue of justification under s. 1.

The minority questioned whether there was a pressing and substantial objective to the possible amendments that should be recognized under s. 1. They noted that the marriage commissioners, and interveners supporting them, object to performing same-sex marriage on two bases: (1) that same-sex marriage is not included in their religious conception of marriage and, there being

no difference between religious and civil marriage, any same-sex marriage is therefore illegitimate; and (2) that same-sexmarriage is sinful and that officiating in the ceremony gives the appearance of approval. The first of these objections is contrary to the essence of The Marriage Act, 1995, which is designed to protect freedom ofreligion by providing for both religious marriages and also for non-religious civil marriages, where the ceremony is expresslyintended to carry no religious implications.

The second position could be invoked by anyone who provides a service and who feels that serving gay men and lesbiansimplicitly shows approval of their relationships. A refusal of tenancy or service in a restaurant is not permitted on this basis.Why, the minority asks, is it particularly important to accommodate marriage commissioners' religious beliefs in this respect? The minority of the Court concluded that to be "pressing and substantial" a legislative objective must be of sufficientimportance that it could justify the infringement of a Charter right.

While accommodation of the religious beliefs of publicofficials might be a legitimate legislative goal, the legislative objective in this case does not justify the infringement of theCharter rights of others. In any case, the possible amendments do not minimally impair the rights of gay men and lesbians,and would have unmitigated deleterious effects. The minority also concluded that the possible amendments would violate the Charter. CASES CITED Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. 567, 2009 SCC 37: 59, 64, 90 Andrews v.

Law Society of British Columbia (SCC), [1989] 1 S.C.R. 143, 10 C.H.R.R. D/5719: 31, 37 B. (R.) v. Children's Aid Society of Metropolitan Toronto, (SCC), [1995] 1 S.C.R. 315: 57 Canada (Attorney General) v. Hislop, [2007] 1 S.C.R. 429, 2007 SCC 10: 39, 113 Dagenais v. Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835: 66, 110 Egan v. Canada, (SCC), [1995] 2 S.C.R. 513: 45, 107 Eldridge v. British Columbia (Attorney General), (SCC), [1997] 3 S.C.R. 624: 37 Ermineskin Indian Band and Nation v. Canada, [2009] 1 S.C.R. 222, 2009 SCC 9: 34 Harper v.

Canada (Attorney General), [2004] 1 S.C.R. 827, 2004 SCC 33: 113 Law v. Canada (Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R. 497: 32 Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113, 2001 SCC 67: 51 Multani v. Marguerite-Bourgeoys, Comm. scolaire, 2006 SCC 6 , [2006] 1 S.C.R. 256, 55 C.H.R.R. D/463, 2006SCC 6: 59, 64 N.W. v. Canada (Attorney General) (2004), 246 D.L.R. (4th) 345, 2004 SKQB 434: 11 Nichols v. M.J. (2008), (SK HRT), 63 C.H.R.R. D/145 (S.H.R.T.): 14, 95 Nichols v. M.J., 2009 SKQB 299 [2009] 10 W.W.R. 513, 67 C.H.R.R. D/339, 2009 SKQB 299: 14 RJR-MacDonald Inc. v.

Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199: 81, 112 Reference Re Manitoba Language Rights, (SCC), [1985] 1 S.C.R. 721: 97 Reference Re Same-Sex Marriage, [2004] 3 S.C.R. 698, 2004 SCC 79: 4, 12, 48, 66, 120 Reference Re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217: 97 R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295: 55, 63, 121 R. v. Bryan, [2007] 1 S.C.R. 527, 2007 SCC 12: 113 R. v. Edwards Books and Art Ltd., (SCC), [1986] 2 S.C.R. 713: 81 R. v. Jones, (SCC), [1986] 2 S.C.R. 284: 64, 149 R. v. Kapp, [2008] 2 S.C.R. 483, 2008 SCC 41: 33 R. v.

Oakes, (SCC), [1986] 1 S.C.R. 103: 68, 73, 81, 102, 109 Rodriguez v. British Columbia (Attorney General), (SCC), [1993] 3 S.C.R. 519: 37 Ross v. New Brunswick School Dist. No. 15, (SCC), [1996] 1 S.C.R. 825, 25 C.H.R.R. D/175: 58

Syndicat Northcrest v. Amselem, 2004 SCC 47 , [2004] 2 S.C.R. 551, CHRR Doc. 04-657, 2004 SCC 47: 56, 63 Thomson Newspapers Co. v. Canada (Attorney General), (SCC), [1998] 1 S.C.R. 877: 90, 110 Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31 , [2001] 1 S.C.R. 772, 39 C.H.R.R.D/357, 2001 SCC 31: 146 Vriend v. Alberta, (SCC), [1998] 1 S.C.R. 493, 31 C.H.R.R. D/1: 39, 112, 158 LEGISLATION CITED Canada Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982(U.K.), 1982, c. 11 s. 1: 3, 28, 53, 67, 100, 109, 120, 151 s. 2(a): 15, 55, 64, 76, 93, 114, 120, 130, 146, 151 s. 2(b): 146 s. 11(d): 73 s. 15: 85 s. 15(1): 11, 29, 35, 45, 53, 66, 89, 101, 108, 114 Civil Marriage Act, S.C. 2005, c. 33, s. 3: 50 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3 s. 91(26): 4 s. 92(12): 4 Immigration and Refugee Protection Act, S.C. 2001, c. 27: 127 Narcotic Control Act, R.S.C. 1985, c. N-1, s. 8: 73 Saskatchewan Constitutional Questions Act (The), R.S.S. 1978, c. C-29: 16 Marriage Act, 1995 (The), S.S. 1995, c.

M-4.1 s. 3: 5, 117 s. 4: 5 s. 5(3): 119 s. 28: 6 s. 29: 6 s. 30: 6, 121 s. 31: 6, 123 Saskatchewan Human Rights Code (The), S.S. 1979, c. S-24.1 s. 2(1)(m.01)(vi): 156 s. 4: 13 s. 9: 13 s. 12: 14, 75 s. 12(1): 156 s. 44: 75, 156 RICHARDS J.A.

I. INTRODUCTION [ 1 ] In 2004, the Supreme Court of Canada rendered a landmark decision confirming the legal validity of same-sex marriage. Parliament then enacted legislation redefining marriage to include such unions. This led some marriage commissioners in Saskatchewan to refuse to solemnize same-sex marriages on the basis that they could not provide services in this regard without acting in violation of their personal religious beliefs. Their position gave rise to various legal proceedings pursuant to The Saskatchewan Human Rights Code, S.S. 1979, c.

S-24.1 and a civil action in the Court of Queen's Bench. [ 2 ] Against this background, the Lieutenant Governor in Council has requested the Court's opinion on the constitutional validity of two possible amendments to The Marriage Act, 1995, S.S. 1995, c. M-4.1. The first amendment would change the Act so as to allow a marriage commissioner appointed on or before November 5, 2004, to decline to solemnize a marriage if performing the ceremony would be contrary to his or her religious beliefs.

The second amendment (an alternative to the first) would allow every commissioner, regardless of his or her date of appointment, to decline to solemnize a marriage if doing so would be contrary to his or her religious beliefs. [ 3 ] This decision constitutes the response to the questions presented by the Lieutenant Governor in Council. I conclude, for the reasons set out below, that both of the possible amendments offend the Canadian Charter of Rights and Freedoms . Either of them, if enacted, would violate the equality rights of gay and lesbian individuals.

This violation would not be reasonable and justifiable within the meaning of s. 1 of the Charter. As a result, if put in place, either option would be unconstitutional and of no force or effect. II. GENERAL BACKGROUND A. The Marriage Act, 1995 and the Role of Marriage Commissioners [ 4 ] Neither Parliament nor the provincial legislatures enjoy plenary authority with respect to the subject of marriage. Section 91(26) of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3 assigns Parliament jurisdiction over "Marriage and Divorce".

Section 92(12) gives each provincial legislature jurisdiction with respect to "The Solemnization of Marriage in the Province". It has been long settled that, by virtue of these provisions, Parliament has exclusive legislative competence in relation to the question of the capacity to marry, whereas the provinces have authority in respect of the performance of marriage formalities. See, for example: Reference Re Same-Sex Marriage, 2004 SCC 79 , [2004] 3 S.C.R. 698 at § 18. [ 5 ] In Saskatchewan, The Marriage Act, 1995 , a provincial statute, identifies the persons who are empowered to solemnize marriages.

In addition to conferring such authority on various individuals with specified religious connections, the Act also provides that a "marriage commissioner" may solemnize marriages. Sections 3 and 4 of the Act read as follows: 3. The following persons , if registered pursuant to this Act as qualified to solemnize marriage, may solemnize marriage between persons not under a legal disqualification to contract marriage: (

a) a member of the clergy of a religious body who is ordained or appointed according to the rites and ceremonies of that religious body; (

b) any catechist, missionary or theological student who is appointed or commissioned by the governing body of any religious body with special authority to solemnize marriage; (

c) any commissioner or appointed and commissioned officer of the Salvation Army, other than a probationary lieutenant, chosen or commissioned by the Salvation Army to solemnize marriage; (

d) an ordained Rabbi who has charge of or is connected with a congregation in Saskatchewan; (

e) a marriage commissioner appointed by the minister. 4. Notwithstanding any other Act or law, no person other than a marriage commissioner or a member of the clergy registered pursuant to this Act shall solemnize any marriage. [Emphasis added.] [ 6 ] The Act does not say a great deal more about the office of marriage commissioner.

Section 28 provides that commissioners may be appointed by the minister to whom administration of the Act is assigned.

Section 29 says commissioners are entitled to receive a prescribed fee for performing a ceremony and s. 31 speaks to the form of the service a commissioner must perform.

Section 30 allows the authority of an individual commissioner to be limited to situations where the couple to be married, or one of the parties, belongs to a specific creed or nationality. The record indicates that no appointment of this narrow kind has been made and, as a consequence, the balance of these reasons will focus only on commissioners with a "general" mandate. [ 7 ] The affidavit of Lionel McNabb, the Director of the Marriage Unit in the Ministry of Justice and Attorney General, says there are presently some 372 marriage commissioners in Saskatchewan.

On average, each commissioner performs six or seven marriage ceremonies each year. Some, however, conduct considerably more. [ 8 ] The Director of the Marriage Unit does not assign commissioners to perform particular marriage ceremonies. At most, he will provide a couple with contact information and the couple will then approach the commissioner of their choice. Individuals wanting to be married are free to contact a commissioner directly without going through the Director. [ 9 ] Marriage commissioners play a very carefully designed role in the overall scheme of The Marriage Act, 1995 .

Specifically, commissioners are the route — the only route — by which individuals who wish to be married by way of a non- religious ceremony may have their union solemnized.

Section 31 of the Act sets out both the requirements of, and the

wording for, a civil marriage ceremony. Both are strictly non-religious: 31. Marriage may be solemnized by a marriage commissioner and contracted in his or her office or any other place he orshe selects, but only in the following form and manner: (

a) the marriage must be contracted in the presence of the witnesses mentioned in

section 37, and with open doors; (

b) in the presence of the marriage commissioner and witnesses, each of the parties shall declare: "I do solemnly declarethat I do not know of any lawful impediment why I, A.B., may not be joined in matrimony to C.D."; and each of the partiesshall say to the other: "I call upon these persons here present to witness that I, A.B., do take you, C.D., to be my lawfulwedded wife (or husband)"; after which the marriage commissioner shall say: "I, E.F., a marriage commissioner, by virtue ofthe powers vested in me by The Marriage Act, 1995, do hereby pronounce you A.B. and C.D. to be husband and wife". [10] All of this is particularly significant for gay and lesbian couples who wish to marry.

The material filed with the Courtindicates that many religions do not approve of same-sex marriages. The result of this reality is self-evident. Many gay andlesbian couples will not have access to the institution of marriage unless they are able to call on a marriage commissioner toperform the required ceremony. B.

The Events Underpinning this Reference [11] The road leading to these proceedings begins in November of 2004 when the Court of Queen's Bench, in N.W. v.Canada (Attorney General), 2004 SKQB 434, 246 D.L.R. (4th) 345, declared that the common law definition of marriage forcivil purposes must be considered to be "the lawful union of two persons to the exclusion of all others". The Court said arefusal to issue marriage licences to same-sex couples would be a violation of equality rights as guaranteed by s. 15(1) ofthe Charter.

In light of this ruling, the Director of the Marriage Unit advised marriage commissioners that they were requiredto perform marriage ceremonies for couples of the same sex. Eight commissioners subsequently resigned, citing the issueof same-sex marriage. [12] Subsequently, in December of 2004, the Supreme Court of Canada released its decision in Reference Re Same-SexMarriage, supra. That proceeding concerned the validity of proposed federal legislation defining marriage, for civil purposes,as the lawful union of two persons (with no requirement that the persons be of different sexes).

The Supreme Court held thatthe proposed definition was within the exclusive legislative competence of Parliament and was consistent with the Charter.The Court also said the guarantee of freedom of religion in the Charter afforded religious officials protection against beingcompelled by the state to perform same-sex marriages contrary to their religious beliefs. In 2005, Parliament enacted theCivil Marriage Act, S.C. 2005, c. 33 redefining marriage to include same-sex unions. [13] These legal developments served to spawn further litigation in Saskatchewan.

Three marriage commissioners,including Orville Nichols, filed human rights complaints against the Government of Saskatchewan alleging that the policyrequiring them to perform same-sex marriages infringed their freedom of religion, contrary to s. 4 of The SaskatchewanHuman Rights Code and their right to carry on an occupation without religious discrimination, contrary to s. 9 of the Code.These complaints were investigated and then dismissed.

The Chief Commissioner said the Government of Saskatchewanhad not discriminated against the marriage commissioners or, alternatively, did not have a duty to accommodate theirreligious beliefs. [14] Then, in April of 2005, a human rights complaint was filed against Mr. Nichols. It alleged that he had acted in adiscriminatory fashion contrary to s. 12 of the Code by refusing to perform a same-sex marriage ceremony. The HumanRights Tribunal upheld the complaint and concluded Mr. Nichols had violated the Code [reported (SKHRT), 63 C.H.R.R. D/145]. Mr.

Nichols then launched an unsuccessful appeal to the Court of Queen's Bench. See: Nicholsv. Saskatchewan (Human Rights Comm.), 2009 SKQB 299, [2009] 10 W.W.R. 513 [ 67 C.H.R.R. D/339]. A further appeal tothis Court has been lying dormant since the proceedings in this reference were initiated. [15] The final aspect of the relevant background concerns a civil action commenced in November of 2008 by Mr. Nicholsand two other marriage commissioners.

They sued the Government, the Attorney General and the Director of the MarriageUnit seeking, among other things, declarations that the Government's requirement that they solemnize same-sex marriagesis a breach of their rights under s. 2(

a) of the Charter and orders requiring the Government to accommodate their religiousbeliefs. III. THE REFERENCE QUESTIONS [16] On June 30, 2009, the Lieutenant Governor in Council, acting pursuant to The Constitutional Questions Act, R.S.S.1978, c. C-29, passed Order-in-Council 493/2009. In so doing, it sought the Court's opinion on the validity of two alternativepossible amendments to The Marriage Act, 1995.

The relevant parts of the Order-in-Council are set out below: On the recommendation of the undersigned, the Lieutenant Governor, by and with the advice and consent of theExecutive Council, orders that the following questions be referred to the Court of Appeal for hearing and consideration: (

a) Is

section 28.1 of The Marriage Act, 1995 as set out in The Marriage Amendment Act attached as

Schedule A to thisOrder consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars, and to whatextent? (

b) Is

section 28.1 of The Marriage Act, 1995 as set out in The Marriage Amendment Act attached as

Schedule B to thisOrder consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars, and to whatextent?

[ 17 ] The versions of the amendments to The Marriage Act, 1995 , included in the Order-in-Council as Schedules A and B, read as follows:

Schedule A 28.1(1) Notwithstanding The Saskatchewan Human Rights Code , a marriage commissioner who was appointed on or before November 5, 2004 is not required to solemnize a marriage if: (

a) to do so would be contrary to the marriage commissioner's religious beliefs; and (

b) the marriage commissioner has filed the notice mentioned in subsection (2) within the period mentioned in that subsection.

(2) A marriage commissioner who wishes to rely on the exemption mentioned in subsection (1) must file a written notice with the director, within three months after the date this

section comes into force, stating that the marriage commissioner intends to rely on the exemption.

(3) A marriage commissioner who does not file the notice mentioned in subsection (2) within the required period cannot rely on the exemption mentioned in subsection (1).

Schedule B 28.1 Notwithstanding The Saskatchewan Human Rights Code , a marriage commissioner is not required to solemnize a marriage if to do so would be contrary to the marriage commissioner's religious beliefs. [ 18 ] The significance of the reference to marriage commissioners appointed "on or before November 5, 2004" in the

Schedule A option is that this is the date of the Court of Queen's Bench decision striking down the prohibition against same- sex marriage in Saskatchewan. Accordingly, for ease of reference, we will refer to this as the "Grandfathering Option" and to the

Schedule B alternative as the "Comprehensive Option". [ 19 ] After the questions were referred to the Court, the Ministry of Justice and the Attorney General arranged for the appointment of counsel to argue the two sides of the issues raised by the reference. Michael Megaw, Q.C., was appointed to argue in favour of the constitutional validity of the possible amendments to The Marriage Act, 1995 . Reynold Robertson, Q.C., was appointed to argue the contrary position. I should note that, in the end, Mr. Megaw did not attempt to defend the Grandfathering Option. [ 20 ] Pursuant to an order of the Court, Mr.

Megaw and Mr. Robertson filed various affidavits containing the factual information they considered relevant to the proceedings. Those affidavits are admissible and form part of the record in this proceeding. [ 21 ] The Court also granted intervener status to the individuals and groups listed in the style of cause. Some of them filed affidavits. We found those affidavits to be admissible. IV. ANALYSIS A.

The Particulars of the Amendments [ 22 ] Both the Grandfathering Option and the Comprehensive Option would, if enacted, allow a marriage commissioner to refuse to solemnize a marriage if doing so would be contrary to the commissioner's religious beliefs. The difference between the two alternatives is that, as indicated, the Grandfathering Option would operate only with respect to those commissioners appointed on or before November 5, 2004.

Any commissioner wishing to take advantage of the exemption provided by the amendment would be required to file a written notice to that effect with the Director of the Marriage Unit. By way of contrast, the Comprehensive Option would apply to all commissioners and would not involve any obligation to file a notice with the Director. [ 23 ] I should perhaps note here that, in the analysis which follows, I do not typically set out a separate line of analysis for the validity of each of the Grandfathering Option and the Comprehensive Option.

Although the Grandfathering Option has a more narrow reach than the Comprehensive Option, this difference is not of enough significance to place it on different constitutional ground. The root obligation of a marriage commissioner is to solemnize marriages in keeping with how the concept of marriage is legally defined from time to time. Commissioners who were appointed before the Queen's Bench decision recognizing the legality of same-sex marriage in this jurisdiction are in no meaningfully different position than those appointed after the decision was rendered. Indeed, as noted above, Mr.

Megaw did not even attempt to defend the constitutional validity of the Grandfathering Option. [ 24 ] It may also be worth observing at this point that, although the submissions of counsel understandably focused on the issue of same-sex marriages, neither the Grandfathering Option nor the Comprehensive Option are limited to such marriages. Rather, they are drafted in general terms and, as a result, would engage in any circumstance where solemnizing a marriage would be contrary to the religious beliefs of a marriage commissioner.

As a consequence, there might be a variety of situations where, depending on the religious affiliation of a commissioner, he or she could be led to decline to perform a ceremony. The marriages identified in the affidavit of Prof. James Mullens as potentially offending the religious beliefs of a commissioner include interfaith unions, marriages of individuals who were previously married in a religious ceremony but who have not been released from such marriages, inter-racial marriages, and, finally, marriages involving individuals deemed to be too closely related by blood or family ties.

Thus, for example, if a commissioner belonging to a religion which rejects interfaith marriages is asked to marry an interfaith couple, he or she might decline to do so in reliance

on one of the proposed amendments. [25] All of that said, in analyzing the constitutional validity of the two proposals at hand, I intend to focus on thecircumstances of same-sex couples. I take that approach because there is no information in the record as to how frequently,if ever, the sorts of situations described by Prof. Mullens might actually arise.

More importantly, same-sex marriage is theissue which lies behind the Order-in-Council that initiated these proceedings, and it is the matter which undeniably occupiescentre stage in the debate surrounding both the Grandfathering Option and the Comprehensive Option. B. The Charter of Rights and Freedoms — Basic Principles [26] With that background, I turn to the question of whether the Grandfathering Option and the Comprehensive Option areconsistent with the Charter of Rights and Freedoms. [27] The Charter, of course, is an integral part of the Canadian constitution.

Any law that is inconsistent with it is unlawfuland of no force or effect. [28] The basic methodology of Charter analysis is well settled. The first step involves an inquiry as to whether either thepurpose or the effect of the legislative provision in issue is to curtail one or more of the rights and freedoms guaranteed bythe Charter. If this is the case, it is necessary to determine whether any such infringement can be justified, within themeaning of s. 1 of the Charter, as a reasonable limitation of those rights or freedoms. C.

Do the amendments curtail guaranteed rights and freedoms? [29] The arguments to the effect that the Grandfathering Option and the Comprehensive Option are unconstitutional aregrounded in s. 15(1) of the Charter.

It sets out a guarantee of equality in these terms: 15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of thelaw without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion,sex, age or mental or physical disability. [30] The equality rights issues presented by these proceedings are relatively straightforward and, as a consequence, it isnot necessary to parse all of the subtleties of the s. 15 jurisprudence in order to assess the constitutional validity of theGrandfathering Option and the Comprehensive Option.

Nonetheless, in order to understand the principles that animate s.15(1), it is necessary to briefly highlight the key features of the leading cases. [31] In the seminal decision of Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143 [ 10C.H.R.R. D/5719], the Supreme Court indicated that there are two key elements to a successful s. 15(1) claim. First, theremust be differential treatment based on one of the grounds listed in s. 15(1) or on an analogous ground.

Second, there mustbe discrimination involving factors such as prejudice, stereotyping and disadvantage. [32] Ten years after Andrews, and in the wake of some division of opinion with respect to the proper approach to s. 15(1),the Supreme Court indicated in Law v. Canada (Minister of Employment and Immigration), (SCC), [1999] 1S.C.R. 497 that the

section should be understood as being aimed at preventing the violation of "human dignity" through theimposition of disadvantage, stereotyping, or political or social prejudice. Iacobucci J. identified four factors relevant todetermining whether legislation has the effect of demeaning dignity in the relevant sense: (

a) pre-existing disadvantageexperienced by the individual or group alleging a Charter violation, (

b) the relationship between the ground on which theclaim is based and the nature of the differential treatment, (

c) the ameliorative purpose or effects of the impugned measureon a more disadvantaged individual or group, and (

d) the nature and scope of the interest affected by the legislation. [33] Subsequently, in R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483 at § 14—26, the Court indicated that Law should notbe understood as having imposed a new test for discrimination but, rather, as having affirmed the basic approach to s. 15(1)set out in Andrews.

The Court acknowledged and accepted the academic and other criticism of the "human dignity"approach to s. 15(1) and suggested that the analysis in any particular case should focus on the idea of discrimination with"perpetuation of disadvantage and stereotyping" being the primary indicators of discrimination. In this regard, it appeared tosuggest that the four factors identified in Law as bearing on the question of whether the impugned measure offends humandignity were also relevant to the question of whether it was discriminatory in the required sense.

The Chief Justice andAbella J. jointly wrote as follows (at § 23): The analysis in a particular case, as Law itself recognizes, more usefully focusses on the factors that identify impactamounting to discrimination. The four factors cited in Law are based on and relate to the identification in Andrews ofperpetuation of disadvantage and stereotyping as the primary indicators of discrimination. Pre-existing disadvantage andthe nature of the interest affected (factors one and four in Law) go to perpetuation of disadvantage and prejudice, while thesecond factor deals with stereotyping.

The ameliorative purpose or effect of a law or program (the third factor in Law) goesto whether the purpose is remedial within the meaning of s. 15(2). (We would suggest, without deciding here, that the thirdLaw factor might also be relevant to the question under s. 15(1) as to whether the effect of the law or program is toperpetuate disadvantage.) [34] Most recently, in Ermineskin Indian Band and Nation v.

Canada, 2009 SCC 9, [2009] 1 S.C.R. 222, Rothstein J., writingfor the Court, described the operation of s. 15(1) in the following terms (at § 188): This Court's equality jurisprudence makes it clear that not all distinctions are discriminatory. Differential treatment of differentgroups is not in and of itself a violation of s. 15(1). As this Court stated in Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143, at p. 182 [ 10 C.H.R.R. D/5719 at § 41768] (restated in R. v.

Kapp, 2008 SCC 41,[2008] 2 S.C.R. 483, at para. 28), a complainant must show "not only that he or she is not receiving equal treatment before

and under the law or that the law has a differential impact on him or her in the protection or benefit accorded by law but, inaddition, must show that the legislative impact of the law is discriminatory" (emphasis added). The analysis, as establishedin Andrews, consists of two questions: first, does the law create a distinction based on an enumerated or analogous ground;and second, does the distinction create a disadvantage by perpetuating prejudice or stereotyping. [Italics added.] [35] Accordingly, Kapp and Ermineskin Band provide the most recent guidance about how s. 15(1) should be understoodand applied.

In this regard, despite its failure to reference the factors mentioned in Kapp, I do not think Ermineskin Bandshould be read as somehow saying those factors are not relevant to the issue of discrimination and should be ignored. At aminimum, considerations of pre-existing disadvantage and the nature of the interest affected by the impugned law or actionare clearly important to the question of whether there has been discrimination. [36] With that background, I turn to the specifics of the Grandfathering Option and the Comprehensive Option.

Neithermakes an express distinction between individuals based on an enumerated or analogous ground and, in my opinion, neithercan be impugned on the basis that its purpose is to deny rights guaranteed by s. 15(1). As discussed more fully below underthe heading "The Objective of the Amendments", the general and immediate aim of both options is to accommodate thereligious beliefs of marriage commissioners rather than to deny the rights of same-sex couples.

As a result, neither thepurpose of the Grandfathering Option nor the purpose of the Comprehensive Option offends s. 15(1). [37] What then of the effects of the two options? This question must be considered because a practice or law which isneutral on its face can nevertheless result in a violation of a Charter right or freedom. With respect to s. 15(1), it is enoughthat the effect of the legislation is to deny equal protection or benefit of the law. See: Andrews v. Law Society of BritishColumbia, supra, at 173—74 [C.H.R.R. § 41745]; Rodriguez v.

British Columbia (Attorney General), (SCC),[1993] 3 S.C.R. 519 at 544—49; Eldridge v. British Columbia (Attorney General), (SCC), [1997] 3 S.C.R.624 at § 62. [38] In my assessment, the effect of both the Grandfathering Option and the Comprehensive Option is clear. Either one, ifenacted, will create situations where a same-sex couple contacting a marriage commissioner for the purpose of gettingmarried will be told by the commissioner that he or she will not provide the service requested. This is not a merely theoreticalconcern. It is entirely clear from the affidavits filed by Messrs.

Nichols and Bjerland that some marriage commissioners willrefuse to perform same-sex marriages if The Marriage Act, 1995 is amended to give them that option. [39] In other words, both the Grandfathering Option and the Comprehensive Option will have the effect of drawing adistinction based on sexual orientation, a ground analogous to those listed in s. 15(1). See: Vriend v. Alberta, (SCC), [1998] 1 S.C.R. 493 [ 31 C.H.R.R. D/1] at § 13; Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1S.C.R. 429 at § 24. Gay and lesbian individuals will be treated differently than other people who wish to be married.

Thedifferential treatment will be negative and will flow directly from their sexual orientation. [40] It was suggested in argument by Mr. Megaw, and some of the interveners supporting him, that any such impact flowingfrom either the Grandfathering Option or the Comprehensive Option will be insignificant because a gay or lesbian coupleturned away by a commissioner who does not solemnize same-sex marriages will be able to easily contact anothercommissioner who will be prepared to proceed.

Moreover, they say the number of same-sex marriages will be small and thechances of a gay or lesbian couple being denied services will not be great. In my view, this line of argument is notpersuasive. [41] First, and most importantly, this submission overlooks, or inappropriately discounts, the importance of the impact ongay or lesbian couples of being told by a marriage commissioner that he or she will not solemnize a same-sex union. As canbe easily understood, such effects can be expected to be very significant and genuinely offensive.

It is not difficult for mostpeople to imagine the personal hurt involved in a situation where an individual is told by a governmental officer "I won't helpyou because you are black (or Asian or First Nations) but someone else will" or "I won't help you because you are Jewish(or Muslim or Buddist) but someone else will". Being told "I won't help you because you are gay/lesbian but someone elsewill" is no different. [42] Second, if either of the amendments is enacted, it is entirely possible that a significant number of commissioners willchoose not to perform same-sex marriages.

The impact of commissioners opting in this direction would be compounded bythe fact there is nothing in the proposed amendments to ensure some minimum complement of commissioners will alwaysbe available to provide services to same-sex couples. Accordingly, if more than a very few commissioners do opt out ofsolemnizing same-sex marriages, it might well be more difficult than has been suggested for a gay or lesbian couple to findsomeone to marry them.

They might be forced to make numerous calls and face numerous rejections before locating acommissioner who is prepared to assist them. [43] My third concern about the arguments aimed at minimizing the impact of the amendments is that they take no accountof geography. The material filed with the Court suggests marriage commissioners are appointed with a view to ensuring thatpeople in all areas of the Province have a commissioner or commissioners reasonably close at hand.

It seems obvious that,if commissioners can opt out of the obligation to perform same-sex marriages, a situation might quickly emerge where gayand lesbian couples (particularly in northern and rural areas or smaller centres) would have to travel some distance to find acommissioner willing to perform a marriage ceremony. [44] In the result, I have no difficulty concluding that both the Grandfathering Option and the Comprehensive Option willhave the effect of creating a negative distinction based on sexual orientation. [45] I also have no difficulty finding that the distinction created by both of the possible amendments would be discriminatorywithin the meaning of s. 15(1) of the Charter.

The historical marginalization and mistreatment of gay and lesbian individualsis well known. See, for example: Egan v. Canada, (SCC), [1995] 2 S.C.R. 513 at § 173—74. They have

been able to recently claim the right to marry only after travelling a very difficult and contentious road. Accordingly, putting gays and lesbians in a situation where a marriage commissioner can refuse to provide his or her services solely because of their sexual orientation would clearly be a retrograde step — a step that would perpetuate disadvantage and involve stereotypes about the worthiness of same-sex unions. [ 46 ] As a result, the enactment of either the Grandfathering Option or the Comprehensive Option would curtail rights guaranteed by s. 15(1) of the Charter of Rights and Freedoms.

Both options, by way of their effect, would draw negative distinctions on the basis of an analogous ground and do so in a discriminatory manner. D. The Need to Perform a

Section 1 Analysis [ 47 ] Before turning to the question of whether the curtailment of s. 15(1) rights that would be occasioned by the Grandfathering Option and the Comprehensive Option can be justified, it is useful to briefly consider two lines of argument which would render a full s. 1 inquiry unnecessary. [ 48 ] The first argument is advanced by Mr. Megaw and some of the interveners supporting his position.

It is to the effect that the Supreme Court, in Reference Re Same-Sex Marriage, supra, has already determined that legislative initiatives of the sort in issue in these proceedings are constitutionally justifiable.

They read the Court's decision as saying that the state cannot oblige officials of any sort to solemnize same-sex marriages contrary to their personal religious beliefs and, in this regard, they rely on the following parts of the decision (at § 58, 60): It therefore seems clear that state compulsion on religious officials to perform same-sex marriages contrary to their religious beliefs would violate the guarantee of freedom of religion under s. 2(

a) of the Charter . It also seems apparent that, absent exceptional circumstances which we cannot at present foresee, such a violation could not be justified under s. 1 of the Charter. . . . absent unique circumstances with respect to which we will not speculate, the guarantee of religious freedom in s. 2(

a) of the Charter is broad enough to protect religious officials from being compelled by the state to perform civil or religious same- sex marriages that are contrary to their religious beliefs. [ 49 ] This line of argument involves a misunderstanding of the Supreme Court's decision. The passages quoted above are taken from the

section of the judgment dealing with Question 3 of the reference: "Does the freedom of religion guaranteed by paragraph 2(

a) of the Canadian Charter of Rights and Freedoms protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs?" It is entirely clear that the Court's use of the words "religious officials" in this context was a reference to those individuals, such as priests or rabbis, who hold formal positions in faiths or religious organizations. It was not a reference to civil officials who happen to have religious beliefs which do not embrace same-sex marriage.

I note that, at the time the Reference Re Same-Sex Marriage was initiated and argued, there was a not infrequently voiced concern that, if same-sex marriage was recognized as being lawful, church and other such officials (regardless of the dictates of their faiths) would be obliged to solemnize such unions. This was the issue placed before the Supreme Court for consideration.

The Court was not asked to consider the circumstances of civil officials, such as marriage commissioners, who are responsible for solemnizing marriages. [ 50 ] The second argument which needs to be considered at this point is grounded in the Civil Marriage Act , supra. This is the federal legislation enacted after the Reference Re Same-Sex Marriage to define marriage to include same-sex unions.

Section 3 of the Act clarifies the intended impact of the new definition of marriage: 3.1 For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom. [ 51 ] The intervener group led by the Seventh-Day Adventist Church in Canada submits that, by virtue of the doctrine of federal paramouncy, s. 3 means Saskatchewan cannot deprive marriage commissioners of the right to decline to solemnize same-sex marriages.

Reliance is placed on The Law Society of British Columbia v. Mangat , 2001 SCC 67 , [2001] 3 S.C.R. 113. [ 52 ] In my view, this submission is not persuasive.

Section 3 of the Civil Marriage Act is confined to the federal legislative sphere. It is expressly worded so as to say that no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, "under any law of the Parliament of Canada" by reason of their exercise of specified rights and freedoms. Accordingly, the

section does not implicate matters beyond the limits of federal jurisdiction and, as a result, it does not help to resolve the issues involved in the present proceedings. A provincial requirement that marriage commissioners solemnize same-sex marriages does not contradict or in any way frustrate the operation of s. 3 of the Civil Marriage Act. As a consequence, there is no basis here for engaging the doctrine of paramountcy. E. Is the curtailment of rights justifiable? [ 53 ] I return, therefore, to the issue of justification.

As indicated, the fact that the Grandfathering Option and the Comprehensive Option would limit rights guaranteed by s. 15(1) of the Charter does not end the inquiry concerning their constitutional validity. It merely leads to s. 1 and the second stage of the analysis: is the limitation justifiable? [ 54 ] In order to answer this question, it is appropriate to begin by highlighting, in broad terms, the principle constitutional values which must be reconciled in these proceedings.

As explained above, there are concerns about the equality rights of gay and lesbian individuals in that both the Grandfathering Option and the Comprehensive Option would offend s. 15(1) of

the Charter. However, the questions before us are also said to involve the freedom of religion interests of marriagecommissioners. This latter point must be fleshed out before we can turn to the particulars of s. 1. [55]

Section 2(

a) of the Charter provides that "[e]veryone has. . . freedom of conscience and religion". This guarantee hasbeen defined in very broad terms. Dickson C.J.C. described it as follows in the seminal decision of R. v. Big M Drug MartLtd., (SCC), [1985] 1 S.C.R. 295 at 336—37: . . . The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses,the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious beliefby worship and practice or by teaching and dissemination.

But the concept means more than that. . . . Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or thefundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience. [56] More recently, in Syndicat Northcrest v.

Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551 [ CHRR Doc. 04-657], IacobucciJ., for the majority of the Supreme Court, said this about the scope of freedom of religion (at § 47, 56): But, at the same time, this freedom encompasses objective as well as personal notions of religious belief, "obligation",precept, "commandment", custom or ritual. Consequently, both obligatory as well as voluntary expressions of faith should beprotected under the Quebec (and the Canadian) Charter.

It is the religious or spiritual essence of an action, not anymandatory or perceived-as-mandatory nature of its observance, that attracts protection. An inquiry into the mandatorynature of an alleged religious practice is not only inappropriate, it is plagued with difficulties. Indeed, the Ontario Court ofAppeal quite correctly noted this in R. v. Laws (1998), (ON CA), 165 D.L.R. (4th) 301, at p. 314: There was no basis on which the trial judge could distinguish between a requirement of a particular faith and a chosenreligious practice.

Freedom of religion under the Charter surely extends beyond obligatory doctrine.

Thus, at the first stage of a religious freedom analysis, an individual advancing an issue premised upon a freedom of religionclaim must show the court that (1) he or she has a practice or belief, having a nexus with religion, which calls for a particularline of conduct, either by being objectively or subjectively obligatory or customary, or by, in general, subjectivelyengendering a personal connection with the divine or with the subject or object of an individual's spiritual faith, irrespectiveof whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religiousofficials; and ( 2) he or she is sincere in his or her belief.

Only then will freedom of religion be triggered. [57] Fundamentally, this generous view of s. 2(

a) freedoms reflects a preference for reconciling competing rights andinterests by way of a s. 1 analysis rather than by way of placing internal limits on the scope of religious freedom. La Forest J.made the point as follows in B. (R.) v. Children's Aid Society of Metropolitan Toronto, (SCC), [1995] 1S.C.R. 315 (at § 109—10): This Court has consistently refrained from formulating internal limits to the scope of freedom of religion in cases where theconstitutionality of a legislative scheme was raised; it rather opted to balance the competing rights under s. 1 of the Charter;see R. v. Jones, supra, and R. v.

Edwards Books and Art Ltd., supra. A similar approach was taken in the context of s. 2(b)of the Charter, freedom of expression. In R. v. Keegstra, supra, Dickson C.J., writing for the majority, stated that s. 1 wasbetter suited than s. 2(

b) to facilitate the necessary balance between state and individual interests. McLachlin J. (in dissentbut not on this point) also rejected several proposed limits to the scope of s. 2(

b) rights. She suggested that expressionshould not be excluded from the scope of s. 2(

b) merely because the effect of such expression was to impede freeexpression by others. In my view, it appears sounder to leave to the state the burden of justifying the restrictions it has chosen. Any ambiguity orhesitation should be resolved in favour of individual rights. Not only is this consistent with the broad and liberal

interpretationof rights favoured by this Court, but s. 1 is a much more flexible tool with which to balance competing rights than s. 2(a). . . [58] The case law illustrates how this approach has been applied. For example, in B.(R.) v. Children's Aid Society ofMetropolitan Toronto itself, a majority of the Court held that the decision of a mother and father to prohibit doctors fromgiving a blood transfusion to their infant daughter was protected by freedom of religion because it was dictated by theJehovah's witness faith. Ross v. New Brunswick School District No. 15, (SCC), [1996] 1 S.C.R. 825 [ 25C.H.R.R.

D/175] is also a useful reference on this point. There, the Court dealt with a school teacher who had voiced publicopinions to the effect that Christian civilization was being destroyed by a Jewish conspiracy. La Forest J., writing for themajority, accepted that these actions were protected by freedom of religion. In both cases, the reconciliation of s. 2(

a) andother interests was addressed in the context of a s. 1 analysis. [59] It is now well settled that a breach of s. 2(

a) is established if two conditions are satisfied. First, the claimant mustsincerely hold a belief, or believe in a practice, that has a nexus with religion. Second, the measure in issue must be shownto interfere, in more than a trivial or insubstantial way, with the claimant's ability to act in accordance with his or her practicesor beliefs. See: Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567 at § 32; Multani v.Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256 [ 55 C.H.R.R.

D/463]. [60] The affidavit material filed with the Court indicates that at least some marriage commissioners say solemnizing a same-sex marriage would violate their religious beliefs. As I understood their submissions, none of the participants in theseproceedings took significant issue with this idea, i.e., the idea that there are marriage commissioners who would have to actin contravention of sincerely-held religious beliefs in order to solemnize a same-sex marriage.

Put more directly, it wasgenerally accepted that the current state of affairs under The Marriage Act, 1995, where all commissioners must eitherperform same-sex ceremonies or lose their offices, represents an incursion on the s. 2(

a) freedoms of at least somecommissioners. (Counsel for Egale did briefly suggest in her factum that s. 2(

a) was not in issue here but this point was not

pressed in oral argument.) [61] That said, it must be remembered that this reference concerns only the constitutional validity of the GrandfatheringOption and the Comprehensive Option. The question before us is whether, if enacted, either Option would be constitutionallyvalid. It is not whether any specific marriage commissioner will ultimately be able to bring himself or herself within the termsof the Options or whether any individual commissioner or intervener in these proceedings has demonstrated to the Courtthat his or her s. 2(

a) rights would in fact be violated if he or she was required to solemnize a same-sex marriage. As aresult, it is not necessary to examine the specifics of the affidavits filed by those who say The Marriage Act, 1995, aspresently drafted, does not respect their Charter rights. While this material adds colour and context to our deliberations, it isnot determinative of any of the issues before us. In the present inquiry, no individual marriage commissioner is obliged to"prove" a violation of his or her rights. [62] Put somewhat differently, the question as to whether there are in fact s. 2(

a) freedoms in play in these proceedingsmust be answered by looking, not so much at the material filed with us by marriage commissioners, but at the specificwording of the Grandfathering Option and the Comprehensive Option. More directly, the real issue is whether the s. 2(a)freedoms of a marriage commissioner would be curtailed if solemnizing a marriage would, in the words of the Options, "becontrary to the marriage commissioner's religious beliefs". [63] In light of the very broad

interpretation the Supreme Court has placed on s. 2(

a) of the Charter, I conclude that thereligious freedom of marriage commissioners would be infringed in such circumstances. As noted above, the Court said, inR. v. Big M Drug Mart Ltd. at p. 337, that freedom of religion means, among other things, "no one is to be forced to act in away contrary to his beliefs" and, in Syndicat Northcrest v. Amselem at § 56, that "a practice or belief, having a nexus withreligion, which calls for a particular line of conduct" can operate as the foundation of a s. 2(

a) claim. Given this view of s. 2(a),it follows that s. 2(

a) freedoms are implicated if a marriage commissioner is obliged to perform a ceremony contrary to his orher religious beliefs. [64] I note as well that, given the applicable authorities, there is no basis for concluding the infringement of rights arising insuch circumstances would be merely "trivial or insubstantial" and hence not a cognizable breach of s. 2(

a) of the Charter.The notion of a trivial or insubstantial interference with freedom of religion does not involve an inquiry into the extent towhich the measure in issue encroaches on s. 2(

a) freedoms in the sense of examining whether "core" or "peripheral"freedoms are in issue. Rather, it concerns an examination of the degree to which the freedom is burdened by the measurein question. See: R. v. Jones, (SCC), [1986] 2 S.C.R. 284 at 313—14. Thus, by way of example, whenexamining this point in Multani, supra, the Court did not ask how central the practice of wearing a kirpan was to the Sikhfaith. Rather, it noted that Mr. Singh's choice was between wearing his kirpan and leaving the public school system. It wasbecause of the consequences of exercising his s. 2(

a) freedoms that the interference with them was said to be neither trivialnor [in]substantial. See also: Syndicat Northcrest v. Amselem, supra, at § 58 and 59; Alberta v. Hutterian Brethren of WilsonColony, supra, at § 34. [65] In the circumstances at issue here, marriage commissioners have to make a choice. They can either perform same-sexmarriages or they can leave their offices. Accordingly, the obligation to perform same-sex ceremonies does not interfere in atrivial or insubstantial way with the s. 2(

a) freedoms of those commissioners who would have to act contrary to their religiousbeliefs in order to solemnize a same-sex union. [66] It is apparent, therefore, that answering the questions posed by the Lieutenant Governor in Council is, at bottom,concerned with managing the intersection of the freedom of religion of marriage commissioners on the one hand, and theequality rights of gay and lesbian individuals on the other. Both interests are guaranteed by the Charter and this is not asituation where their potential conflict can be resolved through the way in which the scope of either s. 2(

a) or s. 15(1) of theCharter is delineated. As a consequence, their accommodation or balancing must be conducted by resort to s. 1 of theCharter. See: Reference Re Same-Sex Marriage, supra, at § 50; Dagenais v. Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835 at 878. This assessment must, of course, proceed on the basis that the Charter does not createa hierarchy of rights and that neither s. 2(

a) interests nor those interests arising under s. 15(1) are, by definition, moreworthy of being safeguarded than the other. See: Dagnais v. Canadian Broadcasting Corp., supra, at 877. [67] All of this, therefore, takes me at last to s. 1 of the Charter. It reads as follows: 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to suchreasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. [68] The basic framework of analysis to be conducted in connection with s. 1 was set out by Dickson C.J.C. in R. v.

Oakes, (SCC), [1986] 1 S.C.R. 103 at 138—39. The first requirement is that the objective of the impugned law be ofsufficient importance to warrant overriding a Charter right or freedom. The second requirement involves the satisfaction of aform of "proportionality" test. Three factors are considered in determining if a law is proportional in this sense: (

a) theparticulars of the law must be rationally connected to its objective, (

b) the law must impair the right or freedom in question asminimally as possible, and (

c) there must be an overall proportionality between the deleterious effects of the law and itsobject. [69] I turn now to an examination of each of these matters. 1. The Objective of the Amendments [70] As indicated, R. v. Oakes provides that, in order for a challenged law to be a reasonable limitation of rights orfreedoms, the objective of the law must be of sufficient importance to warrant a limitation of rights or freedoms. In DicksonC.J.C.'s words, the objective must relate to concerns that are "pressing and substantial".

[ 71 ] The participants in these proceedings do not agree about how to state the objective of the Grandfathering Option and the Comprehensive Option. Mr. Megaw and various interveners supporting the validity of the amendments contend both Options are generally aimed at protecting the religious freedom of marriage commissioners, a goal which is said to be pressing and substantial. By contrast, it is suggested by Mr.

Robertson and some of those opposing the amendments that their objective is to facilitate or permit discrimination against gay and lesbian couples, a self-evidently improper and unworthy goal which would not satisfy the requirements of the Oakes test. [ 72 ] As discussed above, it is true that both the Grandfathering Option and the Comprehensive Option, if enacted, would have a negative effect on the rights of gay and lesbian couples. However, this fact does not control the answer to the question of whether the objective of the amendments is sufficiently important to warrant a limitation of rights.

In order to respect the integrity of the Oakes analytical framework, the effect of an impugned law cannot be allowed to wholly drive the characterization of the objective of the law. Any such approach will confuse and conflate the first step of the Oakes inquiry, concerning the importance of the objective of the law, with the final step of the inquiry which, of course, concerns the proportionality between the deleterious effects of the law and the merit of its objective.

While the effect of a law can no doubt sometimes cast light on its true purpose, the statement of the objective of the law for purposes of a s. 1 analysis turns on considerations broader than its mere impact. [ 73 ] This is clearly illustrated by the fact that, in any case where a s. 1 analysis is required, it would be possible to state the objective of the impugned measure as involving the denial of Charter rights. R. v. Oakes itself neatly illustrates the point. It concerned the constitutional validity of s. 8 of the Narcotic Control Act, R.S.C. 1985, c.

N-1, a provision which placed a reverse onus on an offender found to have been in possession of a narcotic to prove that he or she was not in possession for the purpose of trafficking. The Supreme Court could have said the objective of s. 8 was to deny offenders' rights to be presumed innocent as guaranteed by s. 11(

d) of the Charter, but it did not. It said the objective of the

section was the prevention of drug trafficking by facilitating the conviction of drug traffickers. [ 74 ] Similarly, in the present situation, it is not appropriate to default to the idea that the objective of the Grandfathering Option and the Comprehensive Option is the denial of the rights of gay and lesbian couples. Rather, the history of this matter clearly indicates that the broad goal of both options is the accommodation of the religious beliefs of marriage commissioners.

There is a self-evident link between the lawsuit commenced in November of 2008 to force the Government to accommodate their beliefs and the subsequent initiation of these proceedings which, of course, are designed to test the validity of two different ways that such an accommodation might be effected. [ 75 ] In saying this, I recognize that both the Grandfathering Option and the Comprehensive Option expressly are said to operate "[n]otwithstanding the Saskatchewan Human Rights Code ".

Extraordinary as this may be, it is at its root a reflection of the fact that, as described above, there is an extant ruling of the Court of Queen's Bench upholding a Tribunal decision to the effect that Mr. Nichols acted contrary to s. 12 of the Code by declining to solemnize a same-sex marriage. This is important because the Code, in s. 44, says it takes precedence over any other enactment unless the enactment is expressly declared to operate notwithstanding the Code.

Accordingly, in light of the Queen's Bench ruling, it would be necessary for the Legislature to exempt the Grandfathering Option and the Comprehensive Option from the application of the Code for either to be effective, i.e., if they are to accommodate the religious beliefs of marriage commissioners. All of this is obviously relevant to the inquiry involved in the final step of the Oakes analysis concerning the assessment of the proportionality between the effects of the two options and their objectives.

However, as explained, it is not appropriate to confuse the effects of the Options with their objectives. [ 76 ] As a result, both the Grandfathering Option and the Comprehensive Option must be seen, in broad terms, as being aimed at accommodating the religious beliefs of marriage commissioners rather than as being aimed at denying the rights of gay and lesbian couples. However, for the specific purpose of the Oakes analysis, some further refinement is required in order to avoid stating the legislative objective in overly abstract or general terms.

After all, the Options do not involve a generalized defence of freedom of religion. Rather, they operate in a very specific context concerning the work of marriage commissioners. Thus, with Oakes in mind, it is best to describe the objective of the Options as the accommodation of the s. 2(

a) Charter freedoms of commissioners by relieving them of the obligation to perform marriage ceremonies in circumstances where doing so would be contrary to their religious beliefs. [ 77 ] That initial point resolved, the next question is whether this is an objective of sufficient importance to warrant the limitation of Charter rights. I believe it is. It seems clear enough that a law aimed at preserving or accommodating a constitutionally guaranteed right or freedom must normally be taken to satisfy this aspect of the Oakes test even if the effect of the law in question is to impinge on other Charter interests.

Otherwise, at this opening stage of the inquiry, a court would be forced to somewhat blindly choose one right or freedom over another. Here, for example, we effectively would be obliged to endorse s. 2 (

a) interests in priority to those arising under s.15(1) , or vice versa, without the benefit of a full assessment of all the factors relevant to the best reconciliation of those rights and freedoms. [ 78 ] By way of clarification on this point, in coming to the conclusion that the objective of the Options satisfies the first element of the Oakes test, I have not failed to consider that the religious freedoms in issue here are the freedoms of marriage commissioners acting qua commissioners, i.e., while acting in a public office.

I recognize it might be contended that the objective of accommodating the rights of commissioners in this context is not particularly important because their individual interests are overtaken by a larger community imperative to the effect that public services must be provided on a fair and non-discriminatory basis. However, as indicated, this sort of "balancing" is best conducted in the proportionality wing of the Oakes test.

In my view, this approach allows for the fullest and most transparent examination of the relevant considerations and best respects the overall design of the Oakes framework. [ 79 ] Accordingly, it is my opinion that both the Grandfathering Option and the Comprehensive Option satisfy the first step of the Oakes analysis. Their objective is sufficiently important to warrant the curtailment of Charter rights. This takes the analysis to the next stage on the inquiry.

2. Proportionality [80] As noted earlier, the proportionality side of the Oakes framework involves consideration of three matters: (

a) theconnection between ends and means, (

b) less restrictive alternatives, and (

c) the proportionality between the objective anddeleterious effects of the measure in issue. A. RATIONAL CONNECTION [81] The first step is an inquiry into whether the particulars of the impugned law are "rationally connected" to its objective.The law must be "carefully designed to achieve the objective in question" and it must not be "arbitrary, unfair or based onirrational considerations". See: R. v. Oakes, supra, at 139; R. v. Edwards Books and Art Ltd., (SCC), [1986]2 S.C.R. 713 at 770.

The government "must show a causal connection between the infringement and the benefits sought onthe basis of reason or logic". See: RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3S.C.R. 199 at § 153. [82] There can be no doubt that both the Grandfathering Option and the Comprehensive Option satisfy these requirements.Allowing commissioners to opt out of solemnizing marriages when performing such ceremonies would offend their religiousbeliefs is obviously rationally connected to the objective of accommodating those beliefs. B.

MINIMAL IMPAIRMENT [83] The second stage of the proportionality inquiry involves an assessment of whether the law in issue impairs rights andfreedoms as little as reasonably possible in order to meet its objective.

The impairment must be "minimal" in that the lawmust be carefully constructed so as to limit rights no more than necessary. [84] The application of the minimal impairment feature of the Oakes test involves a certain measure of practical flexibility inthe sense that the ultimate question is not whether the law in issue satisfies a benchmark of perfection but, rather, whether itfalls within a range of reasonable alternatives.

"Minimal impairment" is not an absolute standard and a law will not be foundto be overbroad merely because it is possible to conceive of an alternative which might be less restrictive of the rights andfreedoms in issue. See, for example: R. v. Edwards Books and Art Ltd., supra, at 782. [85] That said, during the course of argument on the minimal impairment issue, the Court asked counsel whether theremight be a different way of accommodating the religious beliefs of marriage commissioners than the one reflected in theGrandfathering Option and the Comprehensive Option.

Specifically, we raised the possibility of a "single entry point" systemunder which a couple seeking the services of a marriage commissioner would proceed, not by directly contacting anindividual commissioner, but by dealing with the Director of the Marriage Unit or some other central office.

In such a system,if the request for the services of a commissioner included information about the sorts of matters that might lead acommissioner to excuse himself or herself on religious grounds, then the religious beliefs of individual commissioners couldbe accommodated "behind the scenes" with the result that no couple would be denied services because of a considerationwhich would engage s. 15 of the Charter. [86] This sort of approach can perhaps most easily be understood by describing it in more concrete terms.

What if therequest for the services of a marriage commissioner involved completion of a form indicating, not just the time and place ofthe proposed ceremony, but also the genders of the two people planning to marry? (This information is presumably alreadyavailable in the system in that, in order to obtain a marriage licence, people planning to marry must present identificationdocuments which would typically, or perhaps always, reveal their genders.) Assume too that the Director operated a simpleinternal system whereby a commissioner who did not want to perform same-sex marriage ceremonies because of his or herreligious beliefs could make that fact known to the Director.

In this sort of arrangement, the Director's office could reply to arequest for marriage services by privately taking into account the religious beliefs of commissioners and then providing, tothe couple planning to marry, a list of commissioners in the relevant geographical area who would be available on theplanned date of the wedding and who would be prepared to officiate.

The accommodation of commissioners who did notwant to be involved in a same-sex ceremony would not be apparent to the couple proposing to wed and there would be norisk of the couple approaching a commissioner and being refused services because of their sexual orientation. [87] Mr. Megaw conceded and accepted that this sort of system did in fact represent a less restrictive means of achievingthe objectives of the Grandfathering Option and the Comprehensive Option.

None of the other participants in the hearingsuggested otherwise or expressed concern that such an approach would be impractical, overly costly, or administrativelyunworkable. Further, we were advised by counsel for Egale that in Ontario, or in Toronto at least, a system along these linesis presently in place and operating. [88] In these circumstances, I am obliged to conclude that neither the Grandfathering Option nor the Comprehensive Optionsatisfies the minimal impairment aspect of the Oakes test.

This conclusion would be enough to resolve an ordinary appeal.However, because this is a reference, I propose to also consider the final aspect of the Oakes analysis. [89] Before moving to that point, however, I note that the constitutional validity of any "single entry point" system would needto be assessed in light of all of the relevant facts pertaining to it and with reference to the specific features of the proposedsystem.

The assessment that, in broad terms, a single entry point model would be less restrictive of s. 15(1) rights than theOptions is not necessarily a determination that any such system would ultimately pass full constitutional muster. C. PROPORTIONALITY BETWEEN EFFECTS AND OBJECTIVE [90] The third and final aspect of the proportionality inquiry involves consideration of whether the deleterious effects of theimpugned law are, overall, proportionate to the public benefit conferred by the law.

This involves a broad assessment ofwhether the positive effects of the law warrant its negative impact on guaranteed rights or freedoms. In Thomson

Newspapers Co. v. Canada (Attorney General), (SCC), [1998] 1 S.C.R. 877, recently quoted with approvalin Alberta v. Hutterian Brethren of Wilson Colony, supra, at § 77, Bastarache J. explained as follows: The third stage of the proportionality analysis performs a fundamentally distinct role. . . . The focus of the first and secondsteps of the proportionality analysis is not the relationship between the measures and the Charter right in question, butrather the relationship between the ends of the legislation and the means employed.

Although the minimal impairment stageof the proportionality test necessarily takes into account the extent to which a Charter value is infringed, the ultimatestandard is whether the Charter right is impaired as little as possible given the validity of the legislative purpose.

The thirdstage of the proportionality analysis provides an opportunity to assess, in light of the practical and contextual details whichare elucidated in the first and second stages, whether the benefits which accrue from the limitation are proportional to itsdeleterious effects as measured by the values underlying the Charter. [Italics added.] [91] Historically, this aspect of the Oakes test has been the subject of some academic criticism and has not featuredprominently in the jurisprudence. But, in Alberta v.

Hutterian Brethren of Wilson Colony, supra, at § 72—78, the SupremeCourt recently reconfirmed this aspect of the proportionality inquiry and clearly endorsed its ongoing application. [92] What then of the salutary effect of the Grandfathering Option and the Comprehensive Option? The answer isstraightforward and easily described. Both would allow marriage commissioners to avoid acting in situations which wouldoffend their religious beliefs — beliefs which are, no doubt, of very significant importance to some commissioners. TheGrandfathering Option would, of course, extend this benef

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