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Full Saskatchewan’s Court of Appeal Reference

Full Saskatchewan’s Court of Appeal Reference

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Published by: Xtra Canada on Jan 10, 2011
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 Citation: 2011
SKCA 3 Date: 20110110Docket: 1800In the Matter of Marriage Commissioners AppointedUnder
The Marriage Act, 1995
, S.S. 1995, c. M-4.1;And in the Matter of a Reference by the LieutenantGovernor in Council to the Court of Appeal Under
The Constitutional Questions Act 
, R.S.S. 1978, c. C-29;Coram:Klebuc C.J.S., Vancise, Richards, Smith and Ottenbreit JJ.A.Counsel:Michael Megaw, Q.C. and Scott Hopley, counsel appointed to argue infavour of the constitutional validity of the possible amendments to
The Marriage Act, 1995
Reynold Robertson, Q.C., Sean Sinclair and Candice Grant, counselappointed to argue against the constitutional validity of the possibleamendments to
The Marriage Act, 1995
 Cynthia Petersen for Egale Canada Inc.Thomas Schuck and Ruth Ross for the Christian Legal FellowshipDale Blenner-Hassett for the Canadian Fellowship of Churches andMinisters
 J. Scott Kennedy and Faye Sonier for the Evangelical Fellowship of CanadaGrace Mackintosh, Gerald Chipeur, Q.C. and Jill Wilkie for theSeventh-Day Adventist Church in Canada and theManitoba-Saskatchewan Conference of the Seventh-Day AdventistChurchPatrick Loran for Reverend Paul DonlevyPhilip Fourie for Bruce Goertzen, Larry Bjerland and Désirée DichmontJanice Gingell for the Saskatchewan Human Rights CommissionMerrilee Rasmussen, Q.C. for the Canadian Civil Liberties AssociationLarry Kowalchuk for the Saskatchewan Federation of Labour,Solidarity and Pride Committee et alAppeal:Heard: May 13-14, 2010Disposition: Reference questions answered in the negativeMajority Reasons: January 10, 2011By: The Honourable Mr. Justice RichardsIn Concurrence: The Honourable Chief Justice KlebucThe Honourable Mr. Justice OttenbreitConcurring Reasons: The Honourable Madam Justice SmithIn Concurrence: The Honourable Mr. Justice Vancise
Richards J.A.I. Introduction
[1] In 2004, the Supreme Court of Canada rendered a landmark decisionconfirming the legal validity of same-sex marriage. Parliament then enactedlegislation redefining marriage to include such unions. This led somemarriage commissioners in Saskatchewan to refuse to solemnize same-sexmarriages on the basis that they could not provide services in this regardwithout acting in violation of their personal religious beliefs. Their positiongave 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’sBench.[2] Against this background, the Lieutenant Governor in Council hasrequested the Court’s opinion on the constitutional validity of two possibleamendments to
The Marriage Act, 1995
, S.S. 1995, c. M-4.1. The firstamendment would change the
so as to allow a marriage commissionerappointed on or before November 5, 2004 to decline to solemnize a marriageif performing the ceremony would be contrary to his or her religious beliefs.The second amendment (an alternative to the first) would allow everycommissioner, regardless of his or her date of appointment, to decline tosolemnize a marriage if doing so would be contrary to his or her religiousbeliefs.[3] This decision constitutes the response to the questions presented by theLieutenant Governor in Council. I conclude, for the reasons set out below,

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