Layland v. Ontario
Encyclopedia
Layland v. Ontario was a case
brought towards the Ontario Divisional Court (Superior Court
) after a same-sex couple was denied a marriage license
at Ottawa City Hall
. The two applicants sued the Ontario Minister responsible for the issuing of marriage licenses and the federal government
on the grounds that the acknowledged common law
prohibition of same-sex couples from marriage violated their rights under the Charter at section 15 which prohibits discrimination based on "sex".1
In a 2-1 decision, judges of the Ontario Divisional Court dismissed the application for an order requiring the issue of a marriage licence, ruling "that under the common law of Canada applicable to Ontario a valid marriage can take place only between a man and a woman."
In the 2002 decision of the same Divisional Court, one judge referenced this previous decision, arguing it wasn't persuasive and was non-binding on the Court:
[116] In Layland, the court described the position of the province and the Attorney General of Canada as follows at p. 224:
The respondent Minister opposes the application on the ground that the applicants lack the capacity at common law to marry one another for the reason given by the City Clerk's Office. The Minister takes no position on the alleged Charter violation, because capacity to marry is a matter within the exclusive legislative authority of the Parliament of Canada
under Class 26 of s. 91 of the Constitution Act, 1867
. The Attorney General of Canada (the "Attorney General") opposes the application on the ground that the concept of marriage at common law is limited to persons of opposite sex and denies that such limitation violates s. 15 of the Charter.
The majority ruled that “persons of the same sex do not have the capacity to marry one another”.
With respect, the decisions to which I have referred assumed, without analysis, that the inability of persons of the same sex to marry was a question of capacity. The decisions are not binding on this court and, with respect, I do not find them persuasive. In my opinion, the fact that persons of the same sex may not legally marry is not a question of capacity. Rather the inability of same-sex couples to marry results from the fact that, by its legal nature, marriage is a relationship which only persons of opposite sex may formalize. The requirement that parties to a legal marriage be of opposite sex goes to the core of the relationship and has nothing to do with capacity."
Legal case
A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal...
brought towards the Ontario Divisional Court (Superior Court
Ontario Superior Court of Justice
The Superior Court of Justice is the superior court of general jurisdiction for the Province of Ontario, Canada. It is the successor to the former Ontario Court of Justice , and was created on April 19, 1999...
) after a same-sex couple was denied a marriage license
Marriage license
A marriage license is a document issued, either by a church or state authority, authorizing a couple to marry. The procedure for obtaining a license varies between countries and has changed over time...
at Ottawa City Hall
Ottawa City Hall
The current Ottawa City Hall is the city hall of Ottawa, Canada. The downtown complex consists of two connected buildings: a modern wing located on Laurier Avenue and a 19th century heritage wing located on Elgin Street...
. The two applicants sued the Ontario Minister responsible for the issuing of marriage licenses and the federal government
Government of Canada
The Government of Canada, formally Her Majesty's Government, is the system whereby the federation of Canada is administered by a common authority; in Canadian English, the term can mean either the collective set of institutions or specifically the Queen-in-Council...
on the grounds that the acknowledged common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
prohibition of same-sex couples from marriage violated their rights under the Charter at section 15 which prohibits discrimination based on "sex".1
In a 2-1 decision, judges of the Ontario Divisional Court dismissed the application for an order requiring the issue of a marriage licence, ruling "that under the common law of Canada applicable to Ontario a valid marriage can take place only between a man and a woman."
In the 2002 decision of the same Divisional Court, one judge referenced this previous decision, arguing it wasn't persuasive and was non-binding on the Court:
[116] In Layland, the court described the position of the province and the Attorney General of Canada as follows at p. 224:
The respondent Minister opposes the application on the ground that the applicants lack the capacity at common law to marry one another for the reason given by the City Clerk's Office. The Minister takes no position on the alleged Charter violation, because capacity to marry is a matter within the exclusive legislative authority of the Parliament of Canada
Parliament of Canada
The Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...
under Class 26 of s. 91 of the Constitution Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
. The Attorney General of Canada (the "Attorney General") opposes the application on the ground that the concept of marriage at common law is limited to persons of opposite sex and denies that such limitation violates s. 15 of the Charter.
The majority ruled that “persons of the same sex do not have the capacity to marry one another”.
With respect, the decisions to which I have referred assumed, without analysis, that the inability of persons of the same sex to marry was a question of capacity. The decisions are not binding on this court and, with respect, I do not find them persuasive. In my opinion, the fact that persons of the same sex may not legally marry is not a question of capacity. Rather the inability of same-sex couples to marry results from the fact that, by its legal nature, marriage is a relationship which only persons of opposite sex may formalize. The requirement that parties to a legal marriage be of opposite sex goes to the core of the relationship and has nothing to do with capacity."