In re Marriage Laws

In re Marriage Laws
Collection
Supreme Court Judgments
Date
1912-06-17
Report
(1912) 46 SCR 132
Judges
Fitzpatrick, Charles; Davies, Louis Henry; Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander
On appeal from
Canada
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
In re Marriage Laws, (1912) 46 S.C.R. 132
Date: 1912-06-17
In The Matter of The Authority of The Parliament of Canada to Enact a Proposed Measure Amending “The Marriage Act.”
1912: May 27-31; 1912: June 17.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff and Angl in JJ.
REFERENCE BY THE GOVERNOR-GENERAL IN COUNCIL.
Constitutional law—“Marriage and Divorce”—“Solemnization of Marriage”—Jurisdiction of Parliament—Jurisdiction of legislature— Federal validating Act—Religious belief—Cannonical decrees— Civil rights—"B. N. A. Act” (1867), ss. 91 and 92—Arts. 127 et seq. C.C.
The parliament of Canada has no authority to enact a bill in the following form:—
1. The “Marriage Act,” chapter 105 of the Revised Statutes, 1906, is amended by adding thereto the following section:—
“3. Every ceremony or form of marriage heretofore or hereafter performed by any person authorized to perform any ceremony of marriage by the laws of the place where it is performed, and duly performed according to such laws, shall everywhere within Canada be deemed to be a valid marriage, notwithstanding any differences in the religious faith of the persons so married and without regard to the religion of the person performing the ceremony.
“(2) The rights and duties, as married people of the respective persons married as aforesaid, and of the children of such marriage, shall be absolute and complete, and no law or canonical decree or custom of or in any province of Canada shall have any force or effect to invalidate or qualify any such marriage or any of the rights of the said persons or their children in any manner whatsoever”**.
Per Idington J.—The retrospective part would be good as part of a scheme for concurrent legislation by Parliament and legislatures confirming past marriages which, probably, neither effectively can do. The prospective part, so far as possible to make it an effective prohibition of religious tests, may be good, but doubtful, and the probable purpose can be reached by a better bill.
Per Davies, Idington and Duff JJ.—The law of the Province of Quebec does not render null and void, unless contracted before a Roman Catholic priest, a marriage in such province between two Roman Catholics that would otherwise be binding. Anglin J. contra. Fitzpatrick C.J. expressing no opinion.
The law of Quebec does not render void, unless contracted before a Roman Catholic priest, a marriage otherwise valid where one party only is a Roman Catholic.
The Parliament of Canada has no authority to enact that a marriage between Roman Catholics, or a “mixed marriage,” not contracted before a Roman Catholic priest and whether heretofore or hereafter solemnized shall be valid and binding*.
Per Idington J.—Parliament has power to declare valid such a marriage heretofore solemnized to be concurred in by the legislature of the province concerned, and the like power as to a marriage hereafter to be solemnized if and when the province fails to provide adequate means of solemnization.
REFERENCE by the Governor-General in Council of questions respecting the marriage laws of Canada for hearing and consideration pursuant to section 60 of the “Supreme Court Act.”
The questions so submitted are as follows:— p. c 424.
A Report of the Committee of the Privy Council, Approved by his Royal Highness the Governor-General on the 22nd February, 1912.
The Committee of the Privy Council, on the recommendation of the Minister of Justice, advise that, pursuant to section 60 of the “Supreme Court Act,” the following questions be referred to the Supreme Court of Canada for hearing and consideration, namely:—
1. (a) Has the Parliament of Canada authority to enact in whole or in part, Bill. No. 3 of the First Session of the Twelfth Parliament of Canada, intituled, “An Act to amend the ‘Marriage Act’”? The bill provides as follows:—
“1. The ‘Marriage Act,’ chapter 105 of the Revised Statutes, 1906, is amended by adding thereto the following section:—
“‘3. Every ceremony or form of marriage heretofore or hereafter performed by any person „ authorized to perform any ceremony of marriage by the laws of the place where it is performed, and duly performed according to such laws, shall everywhere within Canada be deemed to be a valid marriage, notwithstanding any differences in the religious faith of the persons so married and without regard to the religion of the person performing the ceremony.
“‘(2) The rights and duties, as married people of the respective persons married as aforesaid, and of the children of such marriage, shall be absolute and complete, and no law or canonical decree or custom of or in any province in Canada shall have any force or effect to invalidate or qualify any such marriage or any of the rights of the said persons or their children in any manner whatsoever.’”
(b) If the provisions of the said bill are not all within the authority of the Parliament of Canada to enact, which, if any, of the provisions are within such authority?
2. Does the law of the Province of Quebec render null and void, unless contracted before a Roman Catholic priest, a marriage that would otherwise be legally binding, which takes place in such province,
(a) between persons who are both Roman Catholics, or, (b) between persons one of whom, only, is a Roman Catholic?
3. If either (a) or (b) of the last preceding question is answered in the affirmative, or both of them are answered in the affirmative, has the Parliament of Canada authority to enact that all such marriages whether,
(a) heretofore solemnized, or,
(b) hereafter to be solemnized, shall be legal and binding?
Counsel on behalf of the promotors of the bill:
Wallace Nesbitt K.C., Eugène Lafleur E.C., Christopher C. Robinson.
Counsel on behalf of those denying the jurisdiction of Parliament to enact the bill: P. B. Mignault K.C., I. F. Hellmuth K.C.
Representing the Attorney-General of Canada: E. L. Newcombe K.C., Deputy Minister of Justice.
Counsel for the Province of Quebec: R. C. Smith K.C., Aimé Geoffrion K.C.
Counsel for the Province of Ontario: Edward Bayley K.C., Solicitor to the Attorney-General of Ontario.
The Chief Justice.—I am requested by Mr. Justice Brodeur to say that he does not intend to take part in the hearing of this reference owing to the fact that he was a member of the Government when, speaking for the Government, the then Minister of Justice, Sir Allen Aylesworth, said the Dominion Parliament was not competent to pass such legislation. Mr. Justice Brodeur feels that he is to some extent responsible for that opinion and, consequently, he thinks he should not take part in this hearing.
Newcombe K.C.—I appear for the Attorney-General of Canada to present and explain to your Lordships the question which has been referred, the circumstances of the reference, and the dispositions which the Government has made for the argument of the case before your Lordships. As your Lordships are aware, the bill which is the subject-matter of the first question referred, was introduced in the House of Commons during the early part of the recent session and, when it became a subject of debate, the Government, owing to the very great importance of the subject and the interests affected by the measure, and having regard, moreover, to the somewhat doubtful constitutionality of the bill, considered it expedient in the public interest to obtain judicial advice upon the power of Parliament to give effect, to the proposed enactments, such as they are, before determining its policy upon the merits. In fact, I may say it would be premature, in view of the differences which were expressed upon constitutional grounds, for Parliament to consider and determine its action upon the bill in the absence of better assurance of its enacting authority than the occasion seemed to produce. Consequently, the Government adopted the policy of referring the bill to the court with the question stated so that the views of the various interests might be fully submitted and argued. The Government permitted the promoters of the bill to name the counsel who should appear before this court to uphold the jurisdiction of Parliament to enact. Counsel were named accordingly and Mr. Nesbitt and Mr. Lafleur represent the promoters. They have filed a factum which your Lordships have before you. At the same time the Government named counsel to submit the reasons which seemed to exclude the proposed legislation from Dominion powers and my learned friends Mr. Mignault and Mr. Hellmuth are arguing that view. Then, each Attorney-General of each province was notified so as to give each province an opportunity of appearing and presenting such arguments as it might deem wise. The provinces have acknowledged the notice. We have communications from the Province of Prince Edward Island and from the Yukon Territory that they do not intend to appear upon the hearing. What course the other provinces are taking will develop, I suppose. As it will be necessary to read these questions in the argument as the case proceeds, perhaps your Lordships do not require to hear them read now as a mere formal matter of submission. Therefore, with these observations, I propose with your Lordships’ permission to leave the matter in the hands of the court to be discussed under the arrangement which the Government have made for the argument.
R. C. Smith E.C.—When we last had the honour of appearing before your Lordships I stated that on behalf of the Attorney-General of the Province of Quebec we should enter a respectful objection to the jurisdiction of this court, upon the ground of the doubtful constitutionality of the Act referring such questions. The Judicial Committee of the Privy Council on the 16th of this month rendered a decision in the case which was then pending[1], and I suppose I must say frankly that, with regard to the absolute question of jurisdiction, we must accept it as disposing of the question of jurisdiction and upholding that such a reference is constitutional. On behalf of the Attorney-General of Quebec, however, I think it proper to direct your Lordships’ attention, especially to a few observations of the Lord Chancellor in rendering that decision and I do so especially with reference to question No. 2. I may say that we think question No. 2 is actually involved in question No. 1. We therefore do not propose to raise any further objection to the jurisdiction, of this court, considering it finally decided by their Lordships of the Privy Council. It is specially with reference to question No. 2 that I desire respectfully to invite your Lordships’ attention to some of the observations that fell from the lips of the Lord Chancellor. The second question reads as follows:—
“2. Does the law of the Province of Quebec render null and void, unless contracted before a Roman Catholic priest, a marriage that would otherwise be legally binding, which takes place in such province:
“(a) between persons who are both Roman Catholics, or,
“(b) between persons one of whom only is a Roman Catholic?” The Attorney-General of the Province of Quebec respectfully objects to the submission of that question and respectfully asks your Lordships either not to answer it, or before answering it to make representations to the Government as suggested by the Lord Chancellor[2]. Their Lordships of the Judicial Committee first set out that the real point raised in this important case — that is the “Companies Act” — is whether or not an Act of the Dominion Parliament authorizing questions either of law or of fact to be put to the Supreme Court, and requiring the judges of that court to answer them on the request of the Governor-General in Council is a valid enactment within the powers of that Parliament. Of course, my Lords, the question in that case was not really one between the legislative jurisdiction of the provinces and that of the Dominion, but it raised the broader question whether or not any power whatever existed to ask such questions. Their Lordships determined that the full ambit of legislative power has been conferred by the British North America Act, that is to say, that the legislative power covering every species of matter or subject concerning the internal Government of Canada had been committed. I may say to your Lordships that that is perhaps the first judicial decision which has in so plain terms acknowledged the absolute legislative independence of the countries. Then, after referring to the various questions upon which appeals have been taken to their Lordships, the Lord Chancellor goes on to say:—
“In all cases the appeal was entertained; in some cases the answers of the Supreme Court were modified by their Lordships; and in one case Lord Herschell, delivering the opinion of the Board, declined to answer some of the questions upon the ground that so doing might prejudice particular interests of individuals.”
There we have an express authority for this court declining to answer this question if private interests be involved in that question. The Lord Chancellor further on says:—
“The Supreme Court itself can, however, either point out in its answer these or other considerations of a like kind, or can make the necessary representations to the Governor-General in Council when it thinks right so to treat any question that may be put.”
The decision of His Lordship concludes:— “It is sufficient to point out the mischief and inconvenience which might arise from an indiscriminate and injudicious use of the Act, and leave it to the consideration of those who alone are lawfully and constitutionally entitled to decide upon such a matter”[3].
His Lordship, as I take it, refers with approval, inasmuch as no disapproval is expressed, of the decision of Lord Herschell[4], to which I ask your Lordships’ attention, and, he further lays down the principle that the Supreme Court has full jurisdiction to make any representations to the Government requesting the question submitted.
The first case to which the Lord Chancellor is referring is the case of Attorney-General for Canada v. Attorneys-General for Ontario, Quebec and Nova Scotia2. This is the “River and Lake Improvement” case, where a number of questions were submitted with respect to an Act passed by the Province of Ontario (Revised Statutes, Ontario, 1887, ch. 24, sec. 47), with reference to the power of the Province of Ontario to deal with the beds of rivers and lakes. I need not trouble your Lordships by referring to all the questions submitted, but the 17th question submitted was this (page 704):—
“Had riparian proprietors, before confederation, the exclusive right of fishing in navigable non-tidal lakes, rivers, streams and waters, the beds of which has been granted to them by the Crown?”
At page 717, Lord Herschell, rendering the decision of the Board, dealt with that question in these words:—
“Their Lordships must decline to answer the last question submitted as to the rights of riparian proprietors. These proprietors are not parties to this litigation or represented before their Lordships, and accordingly their Lordships do not think it proper in determining the respective rights and jurisdictions of the Dominion and provincial legislatures to express an opinion upon the extent of the right possessed by riparian proprietors.”
There, we have an absolute refusal to answer that question because it involves private rights and rights of persons who are not represented in the litigation, nor represented in any manner whatsoever before the tribunal. There was the subsequent case of Attorney-General for Ontario v. Hamilton Street Railway Co.[5]. This was an appeal from the judgment of the Court of Appeal for Ontario rendered on a reference by the Government of Ontario to that court under a provincial statute which is similar in character to the section of the “Supreme Court Act” in question.
I shall raise two principal grounds of objection, (1), that this is a question which preeminently affects private rights and private interests, the interests of persons who are not represented here; and (2), that in order to determine whether or not the Dominion Parliament would have any legislative power to deal with the subject-matter at all, it being a pre-confederation law, the first question would have to be determined as to whether it related to marriage or whether it related to solemnization of marriage. If it related to solemnization of marriage the Dominion Parliament would have no power whatever to deal with it so that I shall in the second place ask that that question should be deferred until the main question is determined, or otherwise, it is putting a purely hypothetical question before the court when it is not at all clear that if the state of the law required any amendment the Dominion Parliament would be competent to deal with it at all.
The Chief Justice.—You say it does not go to our jurisdiction; if it goes only to our discretion you might postpone your argument on that point.
Mr. Smith.—As long as we have an opportunity of pointing that out I have no objection, if that is the view of your Lordships.
The Chief Justice.—Now that you have drawn attention to the difficulty, Mr. Smith, we will take a note of it and expect you to discuss it at a later stage of the proceedings. Will you proceed with the argument, Mr. Nesbitt.
Nesbitt E.C. (after reading questions submitted). —Your Lordships will observe that in one point of view, the proposed bill which I have just read is capable of being predicated on the ground that the provincial legislation requires the marriage ceremony to be performed by some officer, and, that if performed before such an officer, no matter who the parties may be who seek the services of that officer, the marriage is valid. Question 3 will probably involve the broader question: that the Dominion has within its jurisdiction, the whole subject of marriage as such which would include the contract of marriage, and, that, under the term “solemnization” the evidence of that marriage and the machinery by which that marriage is evidenced is the power of the province, and that the extent of its power is not to affect the actual contract of marriage but solely to impose such penalties for the non-observation by the parties of the provincial legislation, as the province may see fit. As for instance, although the parties would be validly married, unless they have entered into that marriage with such form or solemnity that the province may require before its own particular officer, I suppose that the province could say that the wife should be deprived of dower, or that there should be no right of succession, or that the parties contracting the marriage should be subject to fine or the like. That is so, in order to enforce the provincial legislation in reference to the forms that ought to be observed to evidence the contract after the Dominion has said who may make such a contract. Then, as to the second part of the question, namely, as to the rights and duties of married persons, that part of the bill may still be treated as valid even if the first part should be held as infringing upon provincial legislation, as it affects simply the status of the parties and their children, such as their right of citizenship as legitimate persons and the like, which cannot be said to fall in any way within “solemnization.” Referring again to the first part of the bill, if the contention of my learned friends on the other side is to be adopted, that clandestinity is an impediment, then we may argue that the first part of the bill is ultra vires as removing that impediment.
If clandestinity, as to a Roman Catholic’s marriage before any person except a priest, is an impediment under the Roman Catholic doctrine on that point, and if that should be held to be an impediment, clearly the Dominion has the right to legislate with respect to that impediment, and the first part of the bill would be, to that extent, a repeal of article 127 of the Civil Code. That would be our submission. Now, to come to questions No. 1 and No. 3, treating them for the moment together, the right of the Dominion is, of course, set out in section 91, sub-section 26, of the British North America Act, and by section 91 the exclusive power is vested in the Dominion on all matters embraced within the sub-heads and that is so “notwithstanding anything in section 92.” Notwithstanding anything in section 92 the widest legislative power is vested, in the Dominion in relation to sub-head 26 in section 91, namely “Marriage and Divorce.” All that is left in the province is, under sub-section 12 of section 92 “the Solemnization of Marriage in the Province” and our submission is that everything must turn upon what is meant by the term “solemnization” when read in conjunction with the fact that under section 91, sub-section 26, the whole subject of “Marriage and Divorce” is vested in the Dominion. Our contention is that the line of division is the line between the contract of marriage and the accompanying formalities by way of solemnization; that the Dominion has sole power over the first while the, provincial jurisdiction extends only to the second; that the provinces may require, for purposes of publicity and evidence, such formalities accompanying or subsequent to the contract as they may see fit, and may enforce their requirements by penalties upon the solemnizing official, and upon the parties, but that they cannot make compliance with these requirements a condition of the validity of the marriage contract, nor dissolve, nor annul, nor empower any provincial court to dissolve or annul, any contract of marriage otherwise valid, merely because the provincial requirements have not been complied with; and that, therefore, the Dominion has power to pass the bill referred for the purpose of protecting the contract of marriage against any such invalidating provincial legislation.
There is nothing new in the two distinctions involved in this contention, those, namely, (1). between the contract on the one hand and the solemnization on the other, and (2) between the nature of these requirements as on the one hand essential to the validity of the contract and on the other as merely evidentiary, so that, in the one case, non-compliance renders the marriage void, and, in the other, merely exposes those concerned to penalties without affecting the validity of the contract. On the contrary, both these distinctions are to be found throughout the whole history of the subject. Under the canon law, until the Council of Trent, a mere contract per verba de prœsenti constituted a valid and binding marriage — it was ipsum matrimonium — and this was also the law of Scotland, and, according to the better opinion of England until the time of the “Marriage Act” of 1753.
Perhaps I had better briefly refer to one or two of the authorities on that subject. The first is the case of Dalrymple v. Dalrymple[6], at page 62 (commencing at the words “Marriage being a contract” down to “appellavit”); that is the leading case up to that date. Then I refer to Beamish v. Beamish[7]. I cite it in the first place because it contains nearly all the learning on the subject, and I also wish to shew what the view of the House of Lords was as to the case to which I shall next refer. I refer especially to page 334.
Then at page 336, the chief ground of this decision (The Queen v. Millis)[8] was the ordinance of a Saxon King, in the year A.D. 940, requiring that at nuptials there shall be a “mass priest who shall by God’s blessing bind their union.”
Accordingly, following that, it was held by the House of Lords, in the judgment of an equally divided court, 3 against 3, that by reason of that Saxon ordinance, there was, so to speak, express legislation which made the ceremonial a part of the contract of marriage, and avoided the contract without that ceremonial. That brings me then to the case of The Queen v. Millis[9]. What I have read from Beamish v. Beamish[10] was to make good the point that the law of Europe and the law of Scotland was as stated in the passages which I have read to you from Dalrymple v. Dalrymple[11]. The Millis Case7 turned entirely upon the point that by the act of one of the Anglo-Saxon Kings, in A.D. 940, the ceremony was made part of the contract, and the whole contract, therefore, was null unless the ceremony was performed. Then, in the case of The Queen v. Millis7 I pass to the judgment of Lord Brougham to which I desire to draw your Lordships’ attention at pages 701, 702, 718, and 723.
Will your Lordships note Howard’s History of Matrimonial Institutions, vol. 1, pp. 295, 314, 339, 376. Now, following that, let me just point this out: That in the colonies, as shewn by an article in 5 Law Quarterly Review 44, at page 57, to which I will also give your Lordships the reference, Sir Howard Elphinstone, a very great authority on such a subject, points out that the case of The Queen v. Millis7 was not supposed to be applicable to the colonies; indeed, it was held in two cases, one in Upper Canada and one in Lower Canada, prior to the “British North America Act,” to be inapplicable. The first case is Breakey v. Breakey[12], and the other is the celebrated judgment of Mr. Justice Monk in Connolly v. Woolrich[13], at page 224, where it is again stated to be inapplicable to the colonies. I cite these cases for a statement of the law, but it is better put by Sir Howard Elphinstone in this article in 5 Law Quarterly Review where the decisions shewing The Queen v. Millis[14] to be inapplicable are also collected.
My contention in a word is just this: that you have to read the word “marriage” with the word “divorce” as I understood His Lordship Mr. Justice Idington to point out; the two are interrelated. I ask my friends on the other side where, in the language “solemnization of marriage in the province,” do you find any possible authority to declare invalidity; to declare that, as part of the contract of marriage over which the Dominion has complete jurisdiction, the province might interpose something the absence of which would render null and void that which the Dominion has exclusive authority to legislate upon? The province may, as I say, insist upon any form, of ceremony it may see fit.
The province may say it is against public policy to have no solemnization at all and it may prevent certain of the results of such a marriage, and it may impose penalties upon persons who see fit to take advantage of their rights under Dominion legislation to contract a relationship which is indissoluble but which relationship the province declares, as a matter of public policy, should be evidenced.
My submission to the court is that the subject of marriage, those who may marry, at what age, who may not marry, the regulation as to the degrees of consanguinity with which persons may marry, the persons to contract and their capacities to contract, are undoubtedly within Dominion jurisdiction. Solemnization of marriage does not, in the natural sense of the word extend to such matters as capacity. Some attention has to be paid to that language because if the Dominion can enact a general law for the whole Dominion declaring what shall constitute a marriage, surely there cannot be an invalidity in that respect in any province; you cannot be obliged to carry a surveyor’s rule with you, to see which province you are in.
As to the civil effect of the contract — rights to property, for instance, succession, dower and the like, — I should imagine that the province, not under the head of “solemnization of marriage” but under the head of “property and civil rights” might impose such penalties as would make people careful. They have the right to impose conditions with respect to the subsequent relations that will exist between husband and wife as to the property; as, for instance, in reference to community of property in the Province of Quebec.
“Property and civil rights,” enables the province, possibly, to legislate upon anything that may flow from the contract of marriage — the rights of the parties as to property, the rights as to succession, the right of dower and the like.
The meaning of “marriage,” in the “British North America Act,” may, perhaps, be said to be ambiguous, but it must mean, as used in that Act, the contract alone, that is, as opposed to the solemnization. The meaning of the words “solemnization in the province” is what you have to consider. The words “in the province” indicate that the provinces have no jurisdiction over the contract, since if they legislate upon that their legislation becomes, from the nature of the case, effective all over the Dominion. The object of the framers of the “British North America Act” must have been to have uniform legislation upon the essentials of the contract. The result of a contrary construction would be to give the provinces all the power and the Dominion really none. Complete jurisdiction over the contract is essential to effective Dominion legislation. The legislation in question is not an infringement upon the power of provincial “solemnization” properly understood. Nor can the province say that power to nullify the contract is necessary to the exercise of their jurisdiction over the solemnization. I contend that the effect of The Queen v. Millis[15], and all the authorities is, that unless you find express legislation dealing with the subject of the contract of marriage, which makes some use of the evidentiary machinery of solemnization essential to its validity, the contract is perfectly valid. You must have that requirement imposed as it was held to have been by the English legislation. There is nothing of the kind upon the subject here except legislation by the provinces attempting to legislate under the guise of solemnization. I say that such provincial legislation cannot nullify a contract which the Dominion declares, or has the right to say — and that is the third question— is a valid marriage. The provinces cannot say that power to nullify the contract is necessary to the exercise of their jurisdiction over the solemnization. I contend that the doctrine of necessarily implied powers has no application to the provinces which have not the benefit of the words “notwithstanding anything in this Act,” nor of the last paragraph of section 91. I am free to admit that has never been expressly decided by the Judicial Committee. The best observations on that your Lordships will find in Lefroy’s Legislative Power in Canada, at page 454. I repeat that the doctrine of necessarily implied powers has no application to the provinces, which have not the benefit of the words, “notwithstanding anything in this Act.” Your Lordships will remember that it has been held in various cases where Dominion legislation was concerned that where there is a subject expressly given to the Dominion, like railways, powers properly incidental to that subject are also given; that doctrine has no application to any of the subheads of section 92. If I am right about that, then you get a narrower construction of “solemnization,” and any power claimed must be found expressly within these words, not by reading in implied powers such as are read in under the sub-heads of section 91 because section 92 has not the language, “notwithstanding anything in this Act.” This must be so, a fortiori, in this case where the entire remainder of the subject is assigned to the Dominion. In any case, I say that the whole history of the matter, as discussed above, shews that such a power is not necessarily implied.
I contend, moreover, that the annulment of the contract of marriage is an infringement of the exclusive jurisdiction of the Dominion over divorce. Attention has to be drawn to that. When you come to deal with the provincial authority how could a province declare, under the guise of solemnization of marriage, that a contract of marriage, which the Dominion has said may be made, is not a marriage at all.
I follow that up by saying this: strictly speaking, annulment and divorce are different, the one meaning to declare a marriage void ab initio, the other to dissolve an existing marriage, but the word “divorce” is here used apparently as meaning every means of getting rid of the marriage tie. And, even when a provincial court annuls the marriage, it does dissolve an existing de facto marriage, which would otherwise remain good and would become unassailable on the death of either party. You will find that running through it all. There is a very good definition in Murray’s Dictionary of the meaning of the word “divorce it gives it the wider meaning. You cannot give a restricted meaning to the word “divorce” because, as is to be inferred from what was said by the Lord Chancellor, whom I quoted this morning, the Dominion Parliament is given the most sweeping power, the absolute power on the subject of divorce, and, therefore, you have to give the widest meaning to the word “divorce.” It results from the judgment of Lord Brougham which I read this morning that every conceivable legislative power is vested under the “British North America Act” under these two words. The whole subject of divorce, in its widest possible aspect, is, therefore, in the Dominion, and would include both annulment and divorce for cause.
This is a point I want to drive home. If the marriage tie is declared to exist and the provinces declare it is non-existent, then they are stepping within the jurisdiction of the Dominion. The provinces cannot interpose and legislate upon the contract at all without having the effect of an annulment; they cannot interfere with the contract.
To declare that the marriage does or does not exist must come under the all-embracing word “divorce” which covers the whole question of the validity of a marriage, de jure or de facto. I quote from Bishop on Marriage and Divorce, vol. II. sec. 786:— “A suit to declare a marriage null is held to be within the term of divorce suit,” etc. That is the meaning in which I say the word is used in the “British North America Act.” I refer to Murray’s Dictionary, sec. V. “Divorce,” “Legal dissolution of marriage by the courts * * * evidence accepted by the courts.” It is in the first sense that it must be taken in this Act, because the Dominion is given the sole jurisdiction relating to the whole subject-matter of divorce and I submit that it must be given the widest possible meaning. I submit that it covers all three of the jurisdictions, vested by the English Act now in the divorce courts, whether it is separation from bed and board, a decree of nullity, or a regular divorce in the common strict meaning of the word.
Mr. Justice Idington.—I cannot understand how we can escape any one of them under the statute and especially the first and third questions. The other question might have been left out until question No. 1 and question No. 3 were determined.
Mr. Nesbitt.—Will your Lordships let me examine the language of the first section of the bill a little more closely? (The learned counsel reads the section.)
To bring it to a concrete case, the evil that was supposed to have arisen was a limitation of the express language of article 129 of the Civil Code, which stated that marriage might be performed — I am paraphrasing it — by any one of several officers; which, it was supposed, gave the right to any citizen, not falling within the prohibited decrees, to appear before these parties and have the ceremony performed. The bill pre-supposes the right of the province to declare that marriage shall be performed by certain officers, at certain hours, and so on, and the evidences that are to be observed about the marriage.
The bill hits squarely at article 127 C.C. in this, that it says, that no matter who is married before any person, when the provincial law declares to be the proper officer to marry, if they comply with all the provisions of the provincial law, then notwithstanding any difference in their religious faith, that contract shall be good.
If your Lordships answer question 2 in the affirmative, as I said to your Lordships early in the discussion, in all probability that will be the end of the whole matter because there will be nothing more to discuss. Now, my Lords, if the provinces have no power to nullify, the Dominion must have the power to confirm. Apart from the question of power to nullify the contract, the Dominion has admittedly exclusive jurisdiction over the capacity of the parties. Differentiation between persons of different religions as to the manner of solemnization affects their capacity and is beyond provincial powers.
The real object of question 3 seems to be to ascertain whether or not, if the bill referred does not accomplish the desired object, it can be accomplished by some other legislation. If the contention as to the first question be correct, then plainly it stands, so that the two questions run into one another so far as the argument is concerned. Or, if the distinction between the contract and its solemnization be incorrect, the Dominion can still pass the legislation under (1) power over divorce, (2) power to define marriage.
I submit, therefore, that question 3 must be answered in the affirmative because, even if the bill referred does not accomplish the alteration of that law, it could be done by the Dominion by a proper enactment.
I desire only to add, my Lords, a few words in reference to the meaning that is to be given to the word “marriage” in section 91. My submission is, that as it is used in conjunction with the words “and divorce” the same wide meaning that is given to the word “marriage” must necessarily be given to the word “divorce” subject to the qualification that nothing is carved out of divorce while the solemnization of the marriage tie is carved out of the word “marriage.”
Now, in reference to one or two observations, which fell from the court, as to the doctrine of civil rights. Just as in the case of banks and banking, just as with railways, and so forth, whenever the doctrine of civil rights has impinged upon the wide jurisdiction given to the Dominion Parliament in section 91 “civil rights” has had to give way.
You have the whole subject of marriage, you have that whole field of legislation given expressly to the Dominion, and over-riding civil rights or anything that may interfere with it. All that is incidental, all that is ancillary to it, all that is impliedly necessary to create the tie of marriage, is vested in the federal jurisdiction, subject only to whatever may be said to be carved out of it in the solemnization or evidence of that marriage which is vested in the provinces, and nothing else. Therefore, if I have been understood in the argument this morning, to admit that the provinces, under the doctrine of civil rights, can take away from any legislation which the Dominion may see fit to pass in this respect, I have been misunderstood. If the doctrine of civil rights impinges upon whatever is impliedly necessary in the opinion of the Federal Parliament fully to carry out the object of their legislation relative to marriage, then the doctrine of civil rights must give way.
Lafleur K.C.—May it please your Lordships, I intend to ask your Lordships’ attention to the second question on this reference which is:—
“2. Does the law of the Province of Quebec render null and void unless contracted before a Roman Catholic priest, a marriage that would otherwise be legally binding, which takes place in such province,
“(a) between persons who are both Roman Catholics, or
“(b) between persons one of whom, only, is a Roman Catholic?”
I do not know whether I should preface my remarks by pointing out to your Lordships the utility of answering this question. I understand my learned friends on the other side no longer contest that you have the power and the duty, subject to the exercise of your proper discretion, to answer question No. 2, but they do submit that you should exercise your discretion or decline to answer that question in its present form, because they say — at least I understand they are going to say — it may affect the rights of private parties. It is just as important for Parliament in the exercise of its right of legislation to know what the law of the province is upon this subject as it is that it should know the extent of the field of legislation that is open to it. Parliament in legislating upon the subject of marriage will necessarily inquire, first, as to the ambit of its own powers, and in the second place as to what grievances, if any, exist, which it is proposed to redress by the promoters of the bill. Now, it is of the first importance, therefore — when you get over the first difficulty, when you ascertain that Parliament has legislative authority over the subject-matter — to ascertain whether the law of the province is in such a condition as in the opinion of Parliament requires redress or relief. As my learned friend, Mr. Nesbitt, put it this morning, if this question is answered in our sense, if it is held that these marriages are valid and binding, then cadit quaestio. Therefore, it seems to me, it is just as important for Parliament to know what the law of the Province of Quebec is on that subject as it is for Parliament to know the extent of its own powers to legislate over the subject-matter.
As to interference with the rights of private parties who may not be represented here, I suppose that is an objection that may be made to almost any sort of reference of this kind. It is impossible for your Lordships to decide any general question of this nature without in some way affecting private rights, but not judicially affecting them, because your pronouncements upon this, as upon all other matters referred to you in the same way, are merely opinions. Your functions are advisory, and, therefore, you do not preclude the parties — although, of course, it would be absurd for me to contend that your opinions would not be regarded by the courts as important on the subject. I think your Lordships have even said that you would not be bound by your own opinion given on a reference.
It is a little bit perplexing to know what view is ultimately going to be taken on the subject. Take, for example, the “Insurance Reference” which was before your Lordships for adjudication; that was referred by the Government in consequence of a judicial decision in the Province of Quebec upon a prosecution under the “Federal Insurance Act.” If your Lordships are to hold that because there is a pending case you should not answer a question then the “Insurance Reference” should not be heard at all. And, in the present instance, if because there is a case pending in court, that of Hébert[16], in which the second question on this reference is to be decided, your Lordships do not give an opinion on that question, then, of course, I do not know how far it would be useful for me to go on with the argument. I do not know whether your Lordships intend to decide that before hearing us on question 2, but I submit that it is almost impossible to answer upon any reference at all without the possibility of your affecting private rights prejudicially or otherwise. I submit that the last amendment to the statute requires the court to answer the question.
I think I have said all I need say for the present upon the discretion which your Lordships should exercise. It seems to me that on a large question of this kind it is of vast importance to the people throughout the whole. Dominion that an answer should be elicited in this inquiry. It is quite obvious that any number of marriages may be affected in the same way as this Hébert marriage, and the fact that this case has come before the courts does not mean that there are not dozens, and perhaps hundreds, of cases in which the status of the parties if not attacked today may be attacked next year, or ten years hence. It is impossible to consider any question of this kind without necessarily affecting private rights.
The question which is submitted to your Lordships depends, in my humble opinion, upon the construction of a number of articles of the Civil Code of the Province of Quebec. I should like to say at the outset that, while I anticipate a very elaborate historical argument will be made by my learned friend Mr. Mignault on the other side, and I understand he relies upon the judgment of Sir Louis Jetté in Laramée v. Evans[17], which was based on what I may call the historical argument, it seems to me that all that is entirely beside the question. The question of the law as it stood before the Code it is not necessary for us to consider, because, in my humble opinion, the Code is perfectly clear upon the subject. I need hardly do more than refer to a couple of cases which are well known to your Lordships where the principle of construction was clearly laid down in such cases. There is the case of the Bank of England v. Vagliano Brothers[18], at page 144, in which Lord Herschell, speaking of the very elaborate argument which had been presented as to the state of the law before the “Bills of Exchange Act,” said:—
“I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any consideration derived from the previous state of the law, and not to start with enquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.
If the statute, intended to embody in the Code a particular branch of the law, is to be proved in this fashion, it appears to me that its utility will be almost entirely destroyed and the very object with which it was enacted will be frustrated.”
He goes on to say that he is far from saying that resort may never be had to the previous state of the law, but that, on the contrary, it is justifiable to refer to it when the provisions of the actual law are of doubtful import or when words are used which had previously acquired some technical meaning. But in this case that seems to me immaterial because we have an enactment which, in my opinion, is clear and free from any ambiguity, and if that is so any examination of the anterior state of the law is only misleading.
It seems to me that article 129 of the Civil Code has stated the law so clearly that no possible reference to the previous state of the law is useful or necessary. Let me first read article 128, which says that marriage must be solemnized openly by a competent officer recognized by law, and also article 129.
Article 128 says:—
“128. Marriage must be solemnized openly by a competent officer recognized by law.
“129. All priests, rectors, ministers, and other officers, authorized by law to keep registers of acts of civil status, are competent to solemnize marriage.
“But none of the officers thus authorized can be compelled to solemnize a marriage to which any impediment exists according to the doctrine and belief of his religion and the discipline of the church to which he belongs.” Wherein is there any ambiguity in the first paragraph of that article? The language is perfectly general. The authority to celebrate marriage is conferred upon rectors, ministers, and other officers authorized by law to keep registers of acts of civil status, and they are the persons who are competent to solemnize marriage. Is not the only thing to be ascertained, who are the persons who are authorized to keep registers of civil status, in order to answer the question who are competent persons to celebrate marriage. Is there any indication at all that the functions of these officers of civil status are to be in any way restricted? Is it not obvious, on the contrary, that the second paragraph of that article, which says they are not compellable, shews that they may receive applications from all kinds of people, belonging to all kinds of faiths, and that this provision was made for the protection and ease of their own conscience. But, does not that imply the idea that they are not exclusively concerned with marriages of their own parishioners, and that their authority and jurisdiction is general. Otherwise, what would be the use of making them non-compellable? If their functions were restricted to their own flocks, if, as is contended, the priest or the minister has to marry those of his own congregation, and if article 127 C.C. makes the rules of that religious community binding upon the members of that community, then it would be no use saying that the minister or priest is not compellable, because, manifestly, he could not be compelled to celebrate what would be an invalid marriage between persons who would be governed by the rule of their own church, which would be his church. Does not the second part of that article, on its face, shew that the jurisdiction of these officers of civil status was general and not restricted?
Another thing to which I would like to call your Lordships’ attention is that the article does not contemplate that this jurisdiction or that these functions shall be exercised solely by ministers of religion. It says, all priests, rectors, ministers, and other officers authorized by law to keep registers; it contemplates the possibility of other persons than priests or ministers being authorized by statute to keep registers.
There is one provision in the Code in regard to the keeping of acts of religious profession, articles 70 et seq. of the Code, In every religious community in which profession is made by solemn and perpetual vows, registers are kept, and my adversaries argue from that that it is not every one who can keep registers of civil status who are competent to celebrate marriage. But, manifestly, what article 129 means is that these persons can celebrate marriage, who are authorized to keep registers of civil status generally, not merely persons who may be authorized to keep registers of deaths or of religious profession. It means those who have the general power to keep registers of civil status—that is, as to all acts of civil status—and these persons are competent to celebrate marriage. And, if the Province of Quebec to-day empowers an individual, not a clergyman, to keep registers of civil status, that person is a competent person for the celebration of marriage. Whatever may be the case as to births and deaths, as to marriage the Code expressly provides that a person, other than an officer of civil status in the domicile of the party, can be the celebrant. Take article 63:— “63. The marriage is solemnized at the place of the domicile of one or other of the parties. If solemnized elsewhere, the person officiating is obliged to verify and ascertain the identity of the parties.”
Is not that plainly saying that the person solemnizing or celebrating the marriage need not be the functionary to officiate in the parish or domicile of these parties? The only obligation imposed on an outsider who celebrates a marriage is the verification of the identity of the parties, and, of course, all these solemnities are provided in order to prevent clandestinity. The banns themselves are simply protection taken to enable the officiating clergyman to ascertain that there are no impediments. The whole object of this provision is to prevent clandestinity, but the jurisdiction is manifestly not restricted to the officer who is in the place inhabited by the parties; either by one of the parties or by both, because an outsider may marry them, although he must make sure that there are no impediments existing. As your Lordships will see, if he does not publish, the banns, he must see that the banns have been published elsewhere. It is even provided that, when the parties have not been for a certain period in the jurisdiction, the officer must ascertain whether the banns have been published in the foreign jurisdiction, and if they have not, then he must assure himself of the non-existence of any impediment. Articles 131 and 132 deal with that:—
“131. If the actual domicile of the parties to be married has not been established by a residence of six months at least, the publications must also be made at the place of their last domicile in Lower Canada.
“132. If their last domicile be out of Lower Canada and the publications have not been made there, the officer who solemnizes the marriage is bound to ascertain that there is no legal impediment between the parties.”
In the case of dissenting Protestant congregations the banns are published by the minister who performs the marriage, and he may or may not be the minister who is the minister of the parties. They have never regarded the jurisdiction as being restricted and they have never considered that there was any incompetency on the part of any of the functionaries who are created by article 129 of the Code. Therefore, that question has not arisen in the case of marriages of Protestants. I may add that it has never arisen in the case of a marriage between a Protestant and a Catholic. No doubt has ever been cast, so far as I know, in any judicial proceeding upon the validity of marriages between Protestants and Catholics, whether celebrated” by a priest of the Roman Catholic faith or by a Protestant minister. I do not think any suggestion has been made of the invalidity of these marriages. Now, if you take the wording of article 129, what reason is there for making any restriction in the case of one of these functionaries and not in the case of the other one? And if you say that each of these is subject to the same restriction — because that cannot depend upon the practice of the different congregations; it cannot depend upon what they are in the habit of doing or of the opinion they have as to the law of the land — if there are any restrictions as to the jurisdiction of any one of these, they must be derived from law. I submit that you cannot say there are restrictions as to some of these functionaries which do not exist as to the others. If you were to restrict the power of these officers of civil status to the persons who are in their congregation under their spiritual charge, where would any authority be given to any one to marry non-Christians or the numerous immigrants who come to our shores and settle in our cities, and who are not organized into congregations? If that interpretation were, given to it, then these people would be absolutely without any provision for their lawful marriage. You cannot say that a Protestant minister has any greater authority to celebrate such a marriage than a Roman Catholic priest has. If you once get beyond the flock or the congregation of the clergyman or the priest, then where are you going to stop with the jurisdiction. You cannot stop, there is no halting place at all, unless you consider that by a previous article (127) there exists an impediment in the case of people professing the Roman Catholic faith. I will contend later on that there is no such impediment, that such an impediment would not import nullity in any event, and that it is a misapplication of article 127 to say that it could have any influence at all upon the competency of the public officers who are created by article 129.
Before I leave the construction of article 129, I desire to ask your Lordships’ attention to an argument that is advanced by my adversaries in their factum. I am considering now article 129 per se without any assistance from article 127. In their factum, my learned adversaries say that article 129 is far from clear and that it is subject to notable limitations, and they say, in the first place, that under article 70, which I have mentioned a moment ago, certain religious communities are authorized to keep registers of civil status, and yet these communities are not authorized to celebrate marriage. I point out that these communities are not authorized to keep registers of civil status; they are authorized to keep a certain kind of register of a certain kind of religious status; that is, solemn and perpetual vows taken in their community. But, that is not authority to keep registers of civil status, and so I contend that does not qualify the article at all.
Then my adversaries say that another important limitation of article 129 will, be admitted. They say: “Another most important limitation of article 129 will also be admitted. Are priests, rectors and ministers competent to solemnize marriage whether they are authorized or not to keep registers of civil status, a construction which the general terms, if construed literally, of article 129 would justify, or can marriage be solemnized only by such priests, rectors, or ministers who are authorized to keep registers of acts of civil status.”
I do not think you can give that restriction to the article. Do the words “authorized to keep registers of civil status” apply to the priests, rectors and so forth, or only to the other officers? It does not matter from my point, whether you adopt one construction or the other. There is a curious article of the Code, which is referred to by my learned adversaries in their factum, and that is article 53(b), which would seem to imply that there may be persons — although I have never seen them and I do not know who they are — who, without keeping registers of civil status may celebrate marriages. The article says:—
“53. (b) Every person authorized to celebrate marriages, or to preside at burials, who is not authorized to keep registers of civil status, shall immediately prepare, in accordance with the provisions of the Civil Code, an act of every marriage which he celebrates, etc.” My learned friend. Mr. Mignault, thinks this was intended for a congregation of Jews in Quebec. I have not been able to discover what that particular congregation was that this article is intended to assist, but it is a peculiar disposition of the law.
23 Vict. ch. 11 refers to Quakers, and it requires them to keep registers. I do not think 53 (b) can refer to the Quakers, because before that article was passed this legislation as to Quakers was in force and they had the necessary authority and duty of keeping registers of civil status.
It may well be that the proper construction of article 129 is that priests and rectors and ministers, even if they do not keep registers of civil status, may celebrate marriage, and that, in addition, other officers who are authorized by law to keep registers of civil status may also celebrate marriage. That is not, however, what I should think to be the natural construction of that article. I should have said — independently of the provisions of article 53(b) and whatever provisions may be made for the unorganized districts — that this article meant on the face of it that priests, rectors, and other officers, all of whom are authorized to keep registers of civil status, are competent to celebrate marriage. I think that is the plain meaning of that article. Article 53(b) I cannot explain in any way.
That statute is authority to keep registers of civil status, and it is conferred upon a person because he has a congregation, and it is within the discretion of the legislature to give to some congregations or the heads of some congregations the right to keep registers of civil status. That all points to the construction of the article, as I have been reading it, that it is only those persons who keep registers of civil status who can celebrate marriage. Sometimes the authority is to individuals by name and sometimes it is the head of the congregation. They are statutes to afford relief to certain religious congregations. I shall deal with that when I am giving the history of the law, and I intend to notice it although I submit it is not necessary for the construction of the article. Still, I cannot neglect it, because my learned friends base an argument upon it. You will see that by these statutes which preceded the Code (with, I think, one or two exceptions), they did not in terms confer authority to celebrate marriage, but simply authority to keep registers of civil status.
My contention is that the civil law has nothing to do with the internal government of these religious communities. The civil law creates these persons officers to register acts of civil status. It is often said that we have no civil marriage in this country. What I understand by civil marriage, in the sense in which it is ordinarily used, is that the officiating person is not a clergyman or a priest, but is a public functionary like a mayor, or a registrar, or a justice of the peace, but the religious character of the person who registers the act of civil status does not change the character of the act. It is a civil act altogether; it is an act of the representative of the State, who, by the authority of the State, gives authenticity to his records. But, whatever may be the religious character of these officers of, civil status, when they are officiating as officers of civil status they are not acting in a religious capacity at all. They may accompany their celebration of marriage with any religious ceremony they may choose, but they are still pro hac vice purely officers of civil status. That is my argument as to the jurisdiction and authority conferred on these persons by article 129. I submit there is nothing there which suggests the idea that they must necessarily be of clerical character. What is the meaning of these words, “and other officers authorized to keep registers”? The only requirement is that they be authorized to keep registers, and it is quite competent for the State to empower by proper authority a justice of the peace, or a registrar, or anyone else of similar character, to keep these registers of civil status and to celebrate marriage.
Another limitation which is referred to by my learned friends is one which I have noticed already. They say that another limitation is that the priests, rectors, and ministers can only solemnize marriages in the place where they are authorized to keep registers of civil status. I submit that is not so. You have article 63, which clearly shews that the celebration may be made by a clergyman who is not at the domicile of the parties.
They say:—
“By article 63, under the general rule, marriage is solemnized at the place of the domicile of one or other of the parties. This rule is no less a general rule, because the article asks that, if the marriage be solemnized elsewhere, the person officiating is obliged to verify and ascertain the identity of the parties, so that the latter provision can only refer to exceptional cases, such as those of vagrants or of persons domiciled outside of the province; otherwise, it would have been useless to say that the marriage was solemnized at the place of the domicile of one or other of the parties. Therefore, since the general rule requires the solemnization of the marriage at the place of the domicile of one or other of the parties, it follows that priests, rectors, and ministers, authorized to keep elsewhere registers of acts of civil status, are not competent to solemnize the marriage, either at the place of the domicile of one or other of the parties, for they are not there authorized to keep registers of civil status, nor in the place where they do keep these registers, for the parties are not there domiciled.”
It is the general rule, but not the invariable rule, that marriage shall take place at the domicile. The cause of an exception may be the desire of the parties to be married elsewhere as often happens. There is nothing which prevents them from exercising their liberty in that regard. The law has laid down the rule as to publication of banns and formalities and the assumption is that the general rule is that the domicile of the bride is generally the place where the marriage is celebrated. But it has also provided for a case where the parties do not choose to follow the general rule, and it says then what it is incumbent on the officiating clergyman to do in order to prevent clandestinity.
The publication of banns is an entirely different thing; the publication is made in their own church or else the parties get a license; they get a license if they wish to exercise their freedom to be married before some person they select. The minister gets the license of the Lieutenant-Governor to celebrate that marriage and the license is granted on proper security shewing there is no impediment. In the Catholic Church, they may be dispensed by the bishop from publishing the banns. The license does not apply to the parties, it applies to the officiating minister and he can get a license from the Lieutenant- Governor, and when the parties present him with one he is licensed upon receiving that document to celebrate the marriage between the two people. The license is to the minister, not to the parties. There is no such thing as licensing the parties. It dispenses with the publication of the banns by the officiating clergyman, whoever he may be, but there is no restriction as to the clergyman who may celebrate the marriage, provided he has a license. The only difference is that with regard to Catholic priests they cannot get a license, they have to get a dispensation from their ecclesiastical head, and as to Protestant ministers they must get a license, but there is no permission given to the parties, it is to the functionary of the State to dispense with certain formalities which would otherwise be required.
There is another objection which is made by my learned adversaries. They say that our interpretation of article 129 cannot be sustained because the Code of Procedure, in articles 1107 et seq., provides for an opposition to marriage and requires that the opposition should be served upon the functionary called upon to solemnize the marriage. They say, further, that article 61 of the Civil Code requires that the disallowance of the opposition be notified to the officer charged with the solemnization of the marriage. They ask if it is contemplated that the opposition to a marriage should be served on perhaps two or three hundred clergymen in Montreal, for example, in order to prevent a marriage from taking place. My submission is that the expression “called upon to celebrate a marriage,” or, “charged with the celebration of a marriage” means a clergyman or a priest who is selected by the parties to celebrate a marriage. It does not mean an officer who is competent, because there may be more than one. Even on their own theory there must be two, if the parties reside in different parishes. And, in the case of Protestants where there is no such thing as an impediment on the ground of clandestinity, and when they may select any one of two or three hundred persons to cement the union, they say it would be impossible that all these functionaries could be served with the opposition or notified of the difficulties that existed. What the article means by “charged with the celebration of a marriage” or “called upon to celebrate a marriage” is the clergyman who is selected by the parties to celebrate their marriage, and there must be only one, and that one is the one who is to receive the opposition.
Now then, my Lords, another objection which is made is that, in the Province of Quebec, marriage is essentially a religious ceremony. They say there is no such a thing in the Province of Quebec as a civil marriage, as the term is generally understood, and as they say would result from the wide construction sought to be placed on article 129.
Now, is it true that in the Province of Quebec marriage is essentially a religious ceremony? A religious ceremony, in connection with a mixed marriage, for example. I have always understood there was no religious ceremony performed there but that the priest merely acted as a witness and that there was no ceremony at all. There cannot be any religious ceremony, when non-believers or Mahommedans, or Hindus, are married in the Province of Quebec; there is no religious ceremony in their case. There is an authentication of their marriage by the priest or officer of civil status, but it is wrong. I submit, to say that a Quebec marriage is necessarily and essentially a religious ceremony. It generally is accompanied, no doubt, by a religious ceremony, but my submission is that the only part of the ceremony which concerns the law is the authentication of that marriage by the officer of civil status who generally happens to be, who always happens to be now, a clergyman of some church. But, in exercising this function, he is exercising purely a civil function. I would submit that the creation of the officers of civil status to celebrate marriages is merely the exercise of authority by the State to enable these officers of civil status to exercise a purely civil function. The fact that they happen to be ministers of religion in addition to that does not alter the case at all. The words “celebration of marriage” found in our law are used by the European codes where the only legal marriage is celebrated before a public officer, who is not a priest or a minister of religion. You go before the mayor and he celebrates a marriage. The parties afterwards, if they so desire, may repair to their own church and get what is called the nuptial benediction, but that is entirely distinct from the ceremony of marriage. The ceremony of marriage is celebrated by a public officer, and I say that here you have both done by the same officer.
Then, of course, all the decrees recognized the possibility of a valid marriage where a priest could not be obtained, so that it is not essential that there should be a ceremony. There may be, resulting from the religious belief of the parties, a ceremony in their sense of the word, but so far as the law is concerned there is no ceremony. There is nothing there but the consent of the parties and their agreeing to be husband and wife, before a person, who is recognized by the law, as capable of exercising that function. All these decrees provide that, while it is desirable that a priest should celebrate the marriages of Catholics, it is not absolutely essential, because if a priest cannot be procured that does not prevent the celebration of a valid marriage. I, therefore, submit that you cannot say that, a “ceremony” is of the essence of a marriage. It is imposed upon the parties as a religious duty in most churches, but that is a religious obligation only, it is not one which is required by the law of the country. In the last decree, the Ne Temere decree itself, you will find that article VIII. says:—
“VIII. Should it happen that in any district a parish priest, or the ordinary of the place, or a priest delegated by either of them, before whom marriage can be celebrated, is not to be had, and that this condition of affairs has lasted for a month, marriage may be validly and licitly entered upon by the formal declaration of consent of the contracting parties in the presence of two witnesses.”
It is submitted in this connection that article 65 of the Code, which provides what is to be set forth in the act of marriage, does not in any way refer to the religious belief of the parties; but simply states the day on which the marriage was solemnized, the names, quality, occupation and domicile of the parties, and so forth; whether married after publication of banns, or dispensation, or license; whether it was with the consent of the parents, and whether there has been any opposition. That excludes the idea of anything but a purely civil ceremony, so far as the legality of the marriage is concerned. I will have occasion, in referring to the previous legislation, when I come to that part of the case, to shew your Lordships that in all the statutes which are enabling, or authorizing or relieving ministers of congregations there is no restrictive language of any kind, there is no limitation to their jurisdiction ever imposed by any of the previous statutes; they are generally authorized to keep registers of civil status, and whenever they are authorized to celebrate marriages, in a few cases in which express authorization is given to celebrate marriages, there is no restriction in any of the statutes which I have been able to find.
The Act of 1795 expressly authorized and required the Catholic Church and the Anglican Church — that is the construction put on the Act — to keep registers of civil status. The other denominations began to complain that they were not entitled to keep registers of civil status. The Church óf Scotland complained, and the Methodist Church complained, and the Baptist Church, and so on, and they all had extended to them the right which was given by the statute of 1795, to the Catholic Church and to the Anglican Church, of keeping registers of civil status. Now if it were so that the Jews could only celebrate marriages between Jews, and the Quakers between Quakers, and the Presbyterians between Presbyterians, and the Methodists between Methodists, then there would be no officer competent for the celebration of marriages between unbelievers, or Buddhists, or even the people of the Orthodox Greek Church, or in the case of these numerous immigrants who are coming to our shores every day. I do not think anybody has ever disputed the validity of the marriages of these persons. My learned friends on the other side would have to go to the length of arguing that there is no officer of civil status to celebrate the marriage of these people, if they restrict the power of each functionary to the members of his own congregation. There is no greater reason for doing that in one case more than in the other, apart from the provisions of article 127 which have been discussed, and apart from the two statutes which restrict the powers of the Quakers and of the Jews. If you are going to restrict any of these functionaries, you must restrict them all in the same way. There is no halting place, and you must come to the conclusion that a large proportion of our present population in the large cities is under the absolute disability or incapacity of getting lawfully married at all.
Now, my Lords, I come to the consideration of article 127. It is contended, on the part of my adversaries (and it has been held in the cases which have been decided in accordance with that view) that whatever may be the jurisdiction of the functionaries enumerated in article 129 — other than those of the Roman Catholic religion, in the case of Catholics at least, by reason of article 127 —there is an impediment which prevents Catholics from being validly married by any other than their parish priest or a priest delegated by the parish priest or by the bishop. I am dealing with the meaning of the word “impediment” in article 127. May I point out incidentally, that, if it be true that what is called clandestinity is an impediment in the proper sense of the term, the bill can hardly be said to be ultra vires of the Parliament, because, in so far as impediments to marriage are concerned, the legislative jurisdiction of Parliament clearly extends to all matters of that kind. It extends on the subject of marriage, to the capacity to contract marriage, to the impediments to marriage, and to all that goes to constitute a valid marriage, except the solemnization. Now, if it is true that what is called clandestinity is an impediment in the proper sense of the term, then the object of the bill is really to affect and amend article 127, by declaring that no matter what the religion of the parties or of the officiating clergyman may be, that will not present the validity of a marriage, otherwise regular, under the provisions of the law of the province. Now, is it not clear that that bill has for its object the removal of that impediment and the modification of article 127 if that article creates any such impediment as is contended? I would submit that it does not create such an impediment, because I think it is a misuse of the word “impediment” to apply it to the competency of the officer who is about to celebrate the marriage. It seems to me that the only proper meaning of the word impediment, and more particularly its meaning in article 127, must be an impediment of the same nature as those enumerated in the chapter. The whole chapter in which that article is found is called: “Of the qualities and conditions necessary for contracting marriage.” These are the qualities and conditions in the parties themselves, and the next chapter deals with the competency of the officer for the celebration of that marriage. I submit that it is a subversion of all correct ideas, to say that the incompetency of a civil officer constitutes an impediment to marriage. If it is an impediment to marriage in the sense of article 129, I do not see how my learned friends on the other side can escape from the conclusion that the bill is intra vires of Parliament because. Parliament can unquestionably repeal article 127. It can remove all these impediments, it can say what shall be the natural impediments to a marriage, and upon the theory that it is an impediment, called the impediment of clandestinity, then the object of that bill is to remove that impediment and it does accomplish that purpose if you consider clandestinity to be in the nature of an impediment. I do not want to elaborate this. I refer your Lordships to the considérants of the judgment of Mr. Justice Charbonneau in Hébert v. Clouâtre[19], where your Lordships will find the whole subject discussed with great lucidity and force. I do not think I could add anything to what Mr. Justice Charbonneau says.
The judgment of Mr. Justice Jetté in Laràmée v. Evans[20] is one of the most interesting on the whole subject because it reproduces what may be called the historical argument, and I desire to say a word about that point without anticipating too much what may be advanced on that head by my adversaries. But I do understand the proposition as laid down by Mr. Justice Jette to be somewhat like this: He says at the time of the conquest there was in England an exclusive jurisdiction on behalf of the Anglican clergy, and there was in France the same exclusive jurisdiction on the part of the Roman Catholic priesthood, to celebrate marriage; they were each exclusive, they recognized no other authority for celebration of marriage. Now, at the time of the capitulation there was nothing said in the articles of capitulation which could affect that situation, nor indeed, I submit, is there anything in the “Quebec Act” of 1774 or in the “Constitutional Act” of 1791, and it was not until the statutes began to be passed with reference to the keeping of registers of civil status that we find the subject is dealt with at all, and Mr. Justice Jetté puts this question — he says: “What was the effect of the conquest upon this state of things?” he says you had a jurisdiction claimed by the Anglican clergymen on the one hand and an exclusive jurisdiction claimed by the Roman Catholic clergy on the other, and his presumption is that by the very force of things each claimed exclusive jurisdiction as to its own congregation. Now I am quite unable to follow that line of argument. It may be the fault of my logic, but it seems to me that if there was going to be any result produced by the juxtaposition of these two conflicting powers it would mean that they would have concurrent powers as to the celebration of all marriages, or else there came about the predominance of one over the other. If we take the view of Chief Justice Sewell in the case of Ex parte Spratt[21] th