Tue, June 10, 2003

TORONTO (CP) - The right to marry should be extended to same-sex couples, Ontario's Appeal Court ruled Tuesday in a decision that effectively deems Canadian law on traditional marriage unconstitutional.

"The existing common-law definition of marriage violates the couple's equality rights on the basis of sexual orientation under (the charter)," the 61-page written ruling said.

The court also declared the current definition invalid and demanded the law be changed. It ordered the clerk of the City of Toronto to issue marriage licences to the same-sex couples involved in the case. City Hall said in a release after the ruling it would begin issuing marriage licences Tuesday to all who meet the requirements, "including same-sex couples."

"We're gettin' married in the morning," a jubilant Michael Leshner sang with his partner Michael Stark outside the courtroom.

Leshner, 55, is a Toronto Crown attorney who has been pushing for same-sex marriage for years. He and his longtime partner Stark, 45, planned to marry later Tuesday.

"Go tell Jean Chretien, it's dead," Leshner urged reporters.

"The argument's over. No more political discussion, we've won, the charter won, it's a great day for Canada."

The ruling came after a federal government lawyer argued that marriage is a universal concept based on the union of man and woman that cannot be extended to gay and lesbian couples.

Roslyn Levine, on behalf of the Attorney General of Canada, said the concept of marriage has always been based on two genders brought together, built on the ideals of children, permanency and fidelity.

Ottawa was challenging a controversial lower court ruling that said Canadian law is unconstitutional because it recognizes only opposite-sex unions. Common law defines marriage as "the union of one man and one woman" - a violation of the equality section of the Charter of Rights and Freedoms, the divisional court said.

The July 2002 lower court ruling then gave the federal government two years to revamp its laws, in effect clearing the way for same-sex marriage.

Ontario's Appeal Court decision joins court rulings in British Columbia and Quebec that also back same-sex unions.

Ontario Premier Ernie Eves said Ontario won't be issuing licences to gay couples anytime soon, despite the ruling - although marriage licences are issued by municipalities and not the provincial government.

He said he has no objection to same-sex marriages, but believes there are legal concerns about how children would be affected.

"What two people do in a relationship with each other is really none of anybody else's business," he said.

"Now there are other issues of course that are involved with that and some of them are fiscal or monetary and some of them involve children. Those are different matters."

Eves says it's up to the federal government to decide if same sex marriages should be legalized in Canada.

"You go back to the issue of which government really has constitutional responsibility for the legalization of marriages and I believe courts have ruled previously that that is the federal government," he said.

Heritage Minister Sheila Copps and federal leadership candidate said Ottawa should accept the ruling and not appeal it to the Supreme Court of Canada.

"You can't have a half equality," she said in Ottawa. "You can't say: 'Well, you're equal, but.'

"When you're speaking about equality you're talking about allowing people to exercise all rights under the law including all rights that are available to all others."

The B.C. Appeal Court said May 1 that governments should recognize gay marriage when it overturned a B.C. Supreme Court ruling that said marriage should be restricted to heterosexuals. It gave Ottawa until July 12, 2004 to change the law preventing gays and lesbians from marrying.

Justice Minister Martin Cauchon has until June 30 to ask the Supreme Court of Canada to review the B.C. ruling or the decision will stand.

A Quebec court has also backed same-sex marriage rights and asked Ottawa to re-examine marriage laws.

An all-party committee is drafting a much-anticipated report on how Parliament should handle the difficult social issue.

Polls indicate a slight majority of Canadians favour legalization of same-sex marriages.