The Saskatchewan Court of Appeal will release its decision in the Marriage Commissioner Reference on Monday, January 10th. The Evangelical Fellowship of Canada (EFC) was an intervenor before the court in the case.
In July 2009, the Justice Minister of Saskatchewan asked the Court of Appeal for an opinion on potential legislative options which would permit marriage commissioners to decline performing same-sex marriages if contrary to their religious beliefs.
The government proposed two potential legislative options; one permitting marriage commissioners appointed before November 5, 2004 to refuse to solemnize a marriage contrary to their religious beliefs and a second that would allow any marriage commissioner the same right. The Court of Appeal is tasked with determining whether either or both meet the constitutional standard of the Canadian Charter of Rights and Freedoms.
The EFC filed written arguments and spoke at the hearing before the court on May 13 and 14, 2010. The EFC supported only the proposed legislation that would protect and ensure the religious and conscience freedoms of all marriage commissioners.
The Court’s decision has the potential to redefine the scope of conscience and religious rights for employees across the public sector in Canada. To argue, as some have done, that only citizens working in the private or non-profit sectors have Charter protections is ludicrous and contrary to our human rights and employment law. Canadian case law is clear – regardless of where you work in our nation, you have constitutional rights as enshrined in the Charter.
All Canadians are entitled to access marriage services. There is, however, no right to be married by a particular person. It’s the state’s duty to guarantee proper accommodation of commissioners while ensuring access to marriage services.
This is not an unconventional interpretation of law. This is in fact the position that Egale Canada took in 2005 before the Senate Committee on Legal and Constitutional Affairs where they stated, in regard to the Ontario Court of Appeal’s decision in Brillinger v. Brockie, ‘I think the court clearly laid out the principle by which there would be reasonable accommodation for marriage commissioners. That case is a good one in saying that religious freedom is entitled to expansive protection.
This position was echoed by Alex Munter, National Coordinator for Egale Canada, in his appearance before the House of Commons Legislative Committee on Bill C-38. When asked how marriage services should be offered, Mr. Munter replied the following,
When people show up at the counter to obtain marriage licences—as citizens and taxpayers, to avail themselves of a government service—the issue is that it be provided. By whom or how doesn’t really matter from this side of the counter; it’s up to the provincial government…There is certainly a principle in human rights law in Canada around reasonable accommodation. There’s no reason to believe that it will not be possible to ensure, on the one hand, that there’s access to the service and, on the other hand, to ensure that the employer – the municipality, the province, or whoever – ensures access is provided by whatever mix of workforce that can accommodate that.
The EFC proposed that following a proper balancing of rights, accommodations can be made that would best respect all parties’ rights.
For more information, you can view our Frequently Asked Question on the Marriage Commissioner Reference document at our blog, ActivateCFPL.