Halpern v Canada (Attorney General)

Halpern is the leading provincial appellate decision recognising same-sex marriage. The Ontario Court of Appeal held the common-law definition of marriage violated s.15(1) and reformulated it as "the voluntary union for life of two persons to the exclusion of all others." The federal government did not appeal; the issue went to the SCC by reference (2004).

Same-sex couples sought marriage licences in Ontario and were refused based on the common-law opposite-sex requirement. They challenged the requirement under s.15(1).

Is the common-law definition of marriage constitutional?

No. New definition declared in force from the date of the decision, with no suspension.

The common-law opposite-sex requirement violates s.15(1). The infringement cannot be saved under s.1: the objectives put forward (definitional preservation) are not pressing and substantial. The appropriate remedy is reformulation rather than suspended invalidity, with effect from the date of the decision.

Three judges unanimously held that the historical exclusion of same-sex couples from marriage perpetuated stereotype and disadvantage. Procreation arguments were rejected. Religious freedom remained protected — religious officials retain freedom to perform or refuse marriages.

Same-sex marriage immediately legalised in Ontario from 10 June 2003. Followed in BC (EGALE), Quebec (Hendricks), and other provinces. Federal Reference re Same-Sex Marriage (2004) confirmed Parliament's authority to extend marriage nationally; Civil Marriage Act 2005 followed.

Halpern v Canada (Attorney General) (2003) 65 OR (3d) 161, 2003 CanLII 26403 (ON CA).

McMurtry CJO, MacPherson JA, Gillese JA