Yukon court legalizes same-sex marriage

Gay rights activists say a recent Yukon court decision means that same-sex marriage is now legal in every province and territory of Canada, including Nunavut.

“The decision means that provinces and territories that refuse to issue marriage licences to qualified same-sex couples are breaking the law,” said Laurie Arron, the director of advocacy for Egale Canada, a national gay rights lobby group.

The Yukon decision follows provincial court decisions in British Columbia, Ontario and Quebec that have extended the legal definition of marriage to same-sex couples. Same-sex marriage is now legal in provinces and territories representing 75 per cent of Canada’s population.

“Any lawyer who looks at this is obviously going to say that the law has changed. If you’re sitting in Nunavut, and saying, gee what’s the law, you’ve now got four very powerful decisions and you’ve got the federal government agreeing with those decisions. The law has changed,” Arron said.

On July 14, Justice Peter McIntyre of the Yukon Supreme Court changed the legal definition of marriage in the Yukon, saying the Yukon territorial government must issue a marriage licence to Stephen Dunbar and Robert Edge, a gay couple from Whitehorse.

In January of 2004, the couple asked the Yukon government for a marriage licence, but Yukon officials told them in a letter that “the common law definition of marriage in Yukon remains the union of one man and one woman.”

The letter said the Yukon Vital Statistics office would not issue marriage licences to same-sex couples until the legal definition of marriage changed in the territory.

So in June, Dunbar and Edge sought a legal ruling to clarify the situation. In his decision, McIntyre gave them what they asked for, a new legal definition of marriage in Yukon: “the voluntary union for life of two persons to the exclusion of all others.”

McIntyre’s reasoning was simple. He said the federal government, or “the Attorney General for Canada,” is solely responsible for defining marriage in Canada.

And since the federal government has, in different ways, already accepted court decisions in British Columbia, Ontario and Quebec that allow same-sex marriages, McIntyre said same-sex marriage is now part of the common law, everywhere in the country.

“The Attorney General of Canada is not divisible by province. The office of the Attorney General of Canada is responsible for federal law. The capacity to marry is a federal issue… [I]t is legally unacceptable in a federal constitution area… for a provision to be inapplicable in one province and in force in all others,” McIntyre said.

Federal government lawyers had asked McIntyre to adjourn the Dunbar-Edge case until after the Supreme Court of Canada has issued its opinion on four questions related to same-sex marriage that the federal government has referred to it.

But McIntyre said it is unacceptable that the couple be delayed in exercising their right to marry.

And McIntyre even said that the Yukon government officials should already have known that they ought to have issued a marriage licence to the couple, and should not have forced them to go to court to get one.

For that reason, he ordered that the Yukon and federal governments pay for the couple’s legal action.