Case Brief Wiki


The respondents are homosexual couples who wish to be issued marriage certificates. The province of Ontario will not do so, and cites the common law definition of marriage. The definition of marriage, which is found only in the common law, requires that marriage be between “one man and one woman”. The respondents state that this violates their s.15 rights. This had already been decided to be true in British Columbia and Quebec at the time. The claimants want to have the common law definition changed immediately, and have the province ordered to start issuing marriage licenses to same-sex couples right away. They were successful at trial which the government appealed. rt


  1. Does the common law definition of marriage violate the s.15 rights of same-sex couples wishing to be married? Does the s.15 rights include equality for all individuals despite their sexual orientation?


Appeal dismissed; definition changed immediately and the province ordered to issue marriage certificates to qualifying same-sex couples.


The court unanimously agrees that the definition does infringe on the s.15 rights of the same-sex couples, and that it cannot be justified under s.1. They apply the Law test, and find a clear distinction made (same-sex couples cannot get married), an analogous ground (sexual orientation), and a clear violation of human dignity.

The court then finds that the definition is not saved by s.1 of the Charter as there is no pressing and substantial objective of maintaining marriage as an exclusively heterosexual institution. Further, they say that this is obviously not a minimal impairment because it completely bans marriage.

The court states that the definition is to be changed immediately to "the lawful union of two persons to the exclusion of all others", and that the province must immediately issue marriage licenses to the claimants. They do not take the recommendation of the government and allow a two-year grace period as occurred in the other provinces. They state that there are three relevant factors to consider when determining the remedy for a Charter breach:

  1. the extent of the impugned law's inconsistency with the Charter;
  2. what remedy best corrects the inconsistency; and
  3. whether the remedy ought to be temporarily suspended.

They state that suspending a declaration of invalidity is only warranted in limited circumstances, such as when striking the law down would be dangerous to the public, threaten the rule of law or deny deserving people benefits. They say that there is no evidence to suggest that any of these will happen, and therefore the definition should be changed immediately.


When a law violates the Charter, its invalidity will be suspended only in limited circumstances such as when doing it immediately would be dangerous to the public, defy the rule of law, or deny deserving people benefits.