Predictions about the upcoming year in technology law and policy in Canada are particularly challenging given the prospect of a possible election. While there is no shortage of potential new laws – bills on privacy, copyright and lawful access are all before the House of Commons – an election call before the fall would likely mean that those bills would die on the order paper.
With political uncertainty clouding even the best crystal ball, the Supreme Court of Canada is set to emerge this year as the place where much of the action will take place. Canada’s highest court has lined up a tech-heavy docket that will have a major impact Canadian law.
First up is a series of decisions arising from hearings last fall. These include Masterpiece Inc. v. Alavida Lifestyles Inc., a trademark law case that raises questions about the standard for likelihood of confusion between two competing trademarks.
There are also several cases involving access to government information under the Access to Information Act. With the mounting interest in open government and access to public documents, the cases will help identify how far the current legislation extends.
The most anticipated Internet law decision is Crookes v. Newton, a case that will determine the potential liability for hyperlinking. Given the widespread use of links in emails, webpages, Facebook updates and Twitter postings, the prospect of being held legally responsible for the content on the page being linked to could have a chilling effect on Internet speech.
The court has already agreed to address at least two additional cases this year with major implications for the Internet. In March, it will be asked to consider the limits of Internet jurisdiction in an appeal of Black v. Breeden, Conrad Black’s lawsuit over postings such as press releases and reports on the Hollinger International Inc. website that he claims were defamatory.
When Black sued the company’s directors, advisers and one company employee for defamation in Ontario, the defendants in the case brought a motion to dismiss on jurisdictional grounds, arguing that the province was not the appropriate venue for the case since both Hollinger and Black are located in the U.S.
In a unanimous decision issued last summer, the Ontario Court of Appeal sided with Black, noting that the press releases posted on the Internet specifically provided contact information for Canadian media and that the company “clearly anticipated that the statements would be read by a Canadian audience and invited Canadian media to respond.”
Later this year, the court will hear at least one case that examines the scope of the Copyright Act’s fair dealing provision. At issue is whether “research” within fair dealing can be extended to song previews that are made available on sites like iTunes where a consumer can freely listen to roughly 30 seconds of a song.
The Copyright Board of Canada ruled in 2007 that a broad and liberal interpretation of fair dealing meant that it could be included since the preview was effectively consumer research on whether to purchase the song. The Federal Court of Appeal affirmed the Copyright Board’s interpretation last May, opening the door to many other consumer research possibilities under the current fair dealing provision.
With a second fair dealing case involving copying in schools also a distinct possibility for a high court hearing, the Supreme Court is set to play a lead role in technology law in 2011 regardless of what transpires on the political front.
Monday, January 17, 2011
Sunday, January 16, 2011
Breakaway members of Anglican churches in B.C. opposed to same-sex blessings want to take their battle over church buildings and bank accounts to the Supreme Court of Canada.
Breakaway members of Anglican churches in B.C. opposed to same-sex blessings want to take their battle over church buildings and bank accounts to the Supreme Court of Canada.
Earlier this week, the group filed an application for leave to appeal to the high court.
The group has lost at the two lower court levels in British Columbia, but its lawyer, Cheryl Chang, said there remain many questions for the Supreme Court to answer.
"If any congregation splits over theological differences, the question that we're raising for the Supreme Court of Canada is, what do you do in this post-modern, secularized environment?" Chang said.
"Does the court say always that you have to pick a winner or loser? Or does the court have the ability to … go in and basically divide the assets as you would in any divorce situation?"
Chang represents four Vancouver-area churches that split with the mainstream church mainly over the issue of same-sex blessings.
The clergy in the four churches in court — three in Vancouver and one in suburban Abbotsford — resigned from the Anglican Church of Canada, but have remained in their parishes ministering to their congregations.
Battle forces church to cut back
In a ruling last November, the B.C. Court of Appeal agreed with a lower court that the dissidents couldn't take over ownership of their buildings and bank accounts.
After the ruling, the Diocese of New Westminster indicated the clergy would have to vacate the buildings, though Bishop Michael Ingham has been careful to note that no parishioners have been asked to leave.
In a statement released Friday, Ingham said he was "saddened" by the decision to appeal.
He said the "unnecessary dispute" has forced the church to cut back its work with patients at Vancouver hospitals and in the North.
Ingham urged the church trustees and leaders of the four congregations to meet with him.
Chang said her group is not prepared to discuss the replacement of their clergy, and accused Ingham of wanting to "appoint clergy that will be loyal to him."
However, the diocese hasn't moved to get an injunction to kick the dissidents out and the dissidents haven't asked for a court injunction to prevent the diocese from doing so.
Chang said that if the Supreme Court refuses to hear the dissidents' appeal or if the group loses its appeal, then the fight is over and the clergy will vacate the buildings.
Read more:
http://www.cbc.ca/canada/british-columbia/story/2011/01/15/bc-anglican-supreme-court.html
Earlier this week, the group filed an application for leave to appeal to the high court.
The group has lost at the two lower court levels in British Columbia, but its lawyer, Cheryl Chang, said there remain many questions for the Supreme Court to answer.
"If any congregation splits over theological differences, the question that we're raising for the Supreme Court of Canada is, what do you do in this post-modern, secularized environment?" Chang said.
"Does the court say always that you have to pick a winner or loser? Or does the court have the ability to … go in and basically divide the assets as you would in any divorce situation?"
Chang represents four Vancouver-area churches that split with the mainstream church mainly over the issue of same-sex blessings.
The clergy in the four churches in court — three in Vancouver and one in suburban Abbotsford — resigned from the Anglican Church of Canada, but have remained in their parishes ministering to their congregations.
Battle forces church to cut back
In a ruling last November, the B.C. Court of Appeal agreed with a lower court that the dissidents couldn't take over ownership of their buildings and bank accounts.
After the ruling, the Diocese of New Westminster indicated the clergy would have to vacate the buildings, though Bishop Michael Ingham has been careful to note that no parishioners have been asked to leave.
In a statement released Friday, Ingham said he was "saddened" by the decision to appeal.
He said the "unnecessary dispute" has forced the church to cut back its work with patients at Vancouver hospitals and in the North.
Ingham urged the church trustees and leaders of the four congregations to meet with him.
Chang said her group is not prepared to discuss the replacement of their clergy, and accused Ingham of wanting to "appoint clergy that will be loyal to him."
However, the diocese hasn't moved to get an injunction to kick the dissidents out and the dissidents haven't asked for a court injunction to prevent the diocese from doing so.
Chang said that if the Supreme Court refuses to hear the dissidents' appeal or if the group loses its appeal, then the fight is over and the clergy will vacate the buildings.
Read more:
http://www.cbc.ca/canada/british-columbia/story/2011/01/15/bc-anglican-supreme-court.html
Saturday, January 15, 2011
Get the flu shot ASAP!.
The lacklustre response from Canadians to this year's flu shot may be connected to the H1N1 vaccine blitz, but it's increasing concerns about the impact the flu season will have on the country's health systems.
Southern Ontario has been hard hit by the flu in recent weeks.
Toronto-area emergency rooms are already coping with patient loads as much as 40% higher than normal, prompting the province's health minister to urge residents to get the flu shot.
Final tallies for this year's flu shots won't be available until spring, but so far anecdotal evidence suggests attendance at free vaccine clinics is down to about 20-24%, said David Jensen, spokesman for the Ontario health ministry. Usual uptake in Ontario is 30-35%.
Many health officials say the lagging response to this season's vaccine is likely partially related to the frenzy around the swine flu, which prompted a massive H1N1 vaccine program in the fall of 2009.
“I'm not surprised that people feel a little bit cynical,” said Ontario's former chief medical officer Dr. Richard Schabas. “There were some people who oversold the H1N1 vaccine. When you cry wolf, the danger is the next time you cry wolf people aren't going to listen."
While some people may have "vaccine fatigue," others mistakenly think the H1N1 shot is still protecting them for this flu season, said Dr. Jessica
Hopkins, associate medical officer of health in Ontario's Niagara region.
This year's vaccine inoculates against H3N2, which will put most infected people out of commission for 5-10 days, and two other strains. Older people don't have an immunity to this year's flu strain, as they did with H1N1.
The Public Health Agency of Canada estimates an average of 20,000 people are hospitalized and 2,000 to 8,000 die as a result of flu-related complications annually.
But the actual impact of this year's season could be much more significant, said Dr. Anil Chopra, medical director of emergency medicine at University Health Network.
ER staff are dealing with overcrowded conditions, struggling to get patients timely treatment and beds if needed, Chopra said.
A low-level of flu activity was recorded in the fall but it has begun to spike over the past couple weeks — hitting earlier and spiking by up to 40% compared to previous years, according to health officials.
"This is no time to be complacent," said Dr. David Williams, Ontario’s associate chief medical officer of health. "Influenza is a serious, acute respiratory illness that can cause lost time at work or school, a slow recovery, and in some cases, even hospitalization.”
Flu symptoms include fever and chills, coughing, headaches, muscle aches, a runny nose, a sore throat and exhaustion.
Manitoba Health is also still encouraging anyone who hasn't yet got the shot to get vaccinated heading into the second half of the flu season, which typically spans from November to April. The province has also seen a significant spike in reported flu cases, hospital wait times and reported flu-related deaths.
“The more that are vaccinated, the faster the virus comes to an end,” said Dr. Joel Kettner, Manitoba's chief public health officer.
Even people who have already gone through a bout of flu-like symptoms shouldn't be lulled into thinking they are now immune, officials said.
The elderly, pregnant women, young children and people with pre-existing health conditions such as diabetes, heart, lung and kidney disease are especially encouraged to get vaccinated.
Officials say vaccination remains the best protection, but Canadians should also be regularly washing their hands, covering their coughs and staying home when ill.
Southern Ontario has been hard hit by the flu in recent weeks.
Toronto-area emergency rooms are already coping with patient loads as much as 40% higher than normal, prompting the province's health minister to urge residents to get the flu shot.
Final tallies for this year's flu shots won't be available until spring, but so far anecdotal evidence suggests attendance at free vaccine clinics is down to about 20-24%, said David Jensen, spokesman for the Ontario health ministry. Usual uptake in Ontario is 30-35%.
Many health officials say the lagging response to this season's vaccine is likely partially related to the frenzy around the swine flu, which prompted a massive H1N1 vaccine program in the fall of 2009.
“I'm not surprised that people feel a little bit cynical,” said Ontario's former chief medical officer Dr. Richard Schabas. “There were some people who oversold the H1N1 vaccine. When you cry wolf, the danger is the next time you cry wolf people aren't going to listen."
While some people may have "vaccine fatigue," others mistakenly think the H1N1 shot is still protecting them for this flu season, said Dr. Jessica
Hopkins, associate medical officer of health in Ontario's Niagara region.
This year's vaccine inoculates against H3N2, which will put most infected people out of commission for 5-10 days, and two other strains. Older people don't have an immunity to this year's flu strain, as they did with H1N1.
The Public Health Agency of Canada estimates an average of 20,000 people are hospitalized and 2,000 to 8,000 die as a result of flu-related complications annually.
But the actual impact of this year's season could be much more significant, said Dr. Anil Chopra, medical director of emergency medicine at University Health Network.
ER staff are dealing with overcrowded conditions, struggling to get patients timely treatment and beds if needed, Chopra said.
A low-level of flu activity was recorded in the fall but it has begun to spike over the past couple weeks — hitting earlier and spiking by up to 40% compared to previous years, according to health officials.
"This is no time to be complacent," said Dr. David Williams, Ontario’s associate chief medical officer of health. "Influenza is a serious, acute respiratory illness that can cause lost time at work or school, a slow recovery, and in some cases, even hospitalization.”
Flu symptoms include fever and chills, coughing, headaches, muscle aches, a runny nose, a sore throat and exhaustion.
Manitoba Health is also still encouraging anyone who hasn't yet got the shot to get vaccinated heading into the second half of the flu season, which typically spans from November to April. The province has also seen a significant spike in reported flu cases, hospital wait times and reported flu-related deaths.
“The more that are vaccinated, the faster the virus comes to an end,” said Dr. Joel Kettner, Manitoba's chief public health officer.
Even people who have already gone through a bout of flu-like symptoms shouldn't be lulled into thinking they are now immune, officials said.
The elderly, pregnant women, young children and people with pre-existing health conditions such as diabetes, heart, lung and kidney disease are especially encouraged to get vaccinated.
Officials say vaccination remains the best protection, but Canadians should also be regularly washing their hands, covering their coughs and staying home when ill.
Friday, January 14, 2011
Alberta’s Information and Privacy commissioner publicly castigated the government of Premier Ed Stelmach
EDMONTON — Alberta’s Information and Privacy commissioner publicly castigated the government of Premier Ed Stelmach Thursday for failing to keep an election promise to foster accountable and transparent government.
Frank Work issued the rebuke in the opening message to his most recent annual report, which was distributed to MLAs on Thursday afternoon.
“People who want our votes . . . espouse accountability and transparency. The first of Premier Stelmach’s five priorities when he ran for election in 2006 was to govern with integrity and transparency,” Mr. Work said in the two-page message.
“I cannot let this occasion pass without commenting on what I see as a lack of leadership at the provincial level with respect to access to information,” he said. “ . . . What I do not see, for the most part, is leadership at the political level in terms of getting information out, being proactive and fostering a culture of openness.”
Mr. Work suggested government employees responsible for releasing information are routinely grilled by deputy ministers who take a long time to sign off on access requests.
In particular, he said, the government delays releasing information requested by journalists.
“If [civil servants] perceive that access to information is frowned upon or that the unwritten rule is to be extra cautious, we will act accordingly,” he said. “It is a matter of leadership. It is a matter of those who promise transparency delivering on the promise and it is as simple as sending the instruction down the ranks. It is the difference between a culture of secrecy and a culture of openness. If you are going to promise transparency then embrace it.”
Read more: http://www.nationalpost.com/news/canada/Stelmach+rebuked+over+Alberta+government+secrecy/4105392/story.html#ixzz1Az1so2IE
Frank Work issued the rebuke in the opening message to his most recent annual report, which was distributed to MLAs on Thursday afternoon.
“People who want our votes . . . espouse accountability and transparency. The first of Premier Stelmach’s five priorities when he ran for election in 2006 was to govern with integrity and transparency,” Mr. Work said in the two-page message.
“I cannot let this occasion pass without commenting on what I see as a lack of leadership at the provincial level with respect to access to information,” he said. “ . . . What I do not see, for the most part, is leadership at the political level in terms of getting information out, being proactive and fostering a culture of openness.”
Mr. Work suggested government employees responsible for releasing information are routinely grilled by deputy ministers who take a long time to sign off on access requests.
In particular, he said, the government delays releasing information requested by journalists.
“If [civil servants] perceive that access to information is frowned upon or that the unwritten rule is to be extra cautious, we will act accordingly,” he said. “It is a matter of leadership. It is a matter of those who promise transparency delivering on the promise and it is as simple as sending the instruction down the ranks. It is the difference between a culture of secrecy and a culture of openness. If you are going to promise transparency then embrace it.”
Read more: http://www.nationalpost.com/news/canada/Stelmach+rebuked+over+Alberta+government+secrecy/4105392/story.html#ixzz1Az1so2IE
Thursday, January 13, 2011
Supreme Court of Canada has a busy calendar in 2011.
• Ross Barros v. Her Majesty the Queen: The private investigator from Alberta is appealing his obstruction of justice and extortion charges for trying to identify an informant outside of court who helped police lay drug and gun charges against Barros’s client. To be heard on Jan. 25.
• Bernard Gerardus, Maria Berendsen et. al v. Her Majesty the Queen in Right of Ontario: A farming family is taking the Ontario government to court for dumping waste asphalt on an area that, 20 years later, the family claims contaminated drinking water for their cows, and for which the provincial government claims it is not responsible. To be heard on Jan. 28.
• Robert Katigbak v. Her Majesty the Queen: Mr. Katigbak was convicted on child pornography charges, but he claims he kept over 650 photos and videos of child pornography — some depicting actual abuse — on the basis of “artistic merit” because they were background information for an art gallery exhibit. To be heard on Feb. 21.
• Richard C. Breeden, et al. v. Conrad Black: The case raises the issue of jurisdiction when it comes to Internet defamation. Lord Black claims he was libelled online and his reputation was subsequently damaged in Ontario, which is where he has brought forward his lawsuit. To be heard on March 22.
• Gilles Doré v. Pierre Bernard and Barreau du Quebec: Mr. Doré was disbarred for 21 days after he wrote a strongly-worded letter to a case judge — which effectively translates into Dore calling him arrogant, hateful, mean and an “odious being” — but said it was a personal, not professional, opinion. How does the code of ethics limit what a lawyer can do? To be heard Jan. 26.
Read more: http://www.nationalpost.com/news/Social+costs+smoking+busy+Supreme+Court+calendar/4087748/story.html#ixzz1AtEJdXt2
• Bernard Gerardus, Maria Berendsen et. al v. Her Majesty the Queen in Right of Ontario: A farming family is taking the Ontario government to court for dumping waste asphalt on an area that, 20 years later, the family claims contaminated drinking water for their cows, and for which the provincial government claims it is not responsible. To be heard on Jan. 28.
• Robert Katigbak v. Her Majesty the Queen: Mr. Katigbak was convicted on child pornography charges, but he claims he kept over 650 photos and videos of child pornography — some depicting actual abuse — on the basis of “artistic merit” because they were background information for an art gallery exhibit. To be heard on Feb. 21.
• Richard C. Breeden, et al. v. Conrad Black: The case raises the issue of jurisdiction when it comes to Internet defamation. Lord Black claims he was libelled online and his reputation was subsequently damaged in Ontario, which is where he has brought forward his lawsuit. To be heard on March 22.
• Gilles Doré v. Pierre Bernard and Barreau du Quebec: Mr. Doré was disbarred for 21 days after he wrote a strongly-worded letter to a case judge — which effectively translates into Dore calling him arrogant, hateful, mean and an “odious being” — but said it was a personal, not professional, opinion. How does the code of ethics limit what a lawyer can do? To be heard Jan. 26.
Read more: http://www.nationalpost.com/news/Social+costs+smoking+busy+Supreme+Court+calendar/4087748/story.html#ixzz1AtEJdXt2
Tuesday, January 11, 2011
RCMP slash its air marshals program providing security on airplanes ! : This is NOT GOOD
The RCMP is expecting international criticism in the wake of its decision to dramatically slash its air marshals program providing security on airplanes and it has already been warned by pilots that the move will jeopardize the safety of passengers from radical terrorists, Postmedia News has learned.
The program, established in 2002 after the 9/11 attacks, involves specially trained covert Mounties who blend in with regular passengers on selected domestic and international flights.
Known as "inflight security officers," they carry semi-automatic handguns, are trained for fighting in closed quarters, and are seen as the last line of defence against suicidal hijackers or bombers.
The plainclothes air marshals are part of the Canadian Air Carrier Protective Program, and news leaked out through the RCMP's union last October that the program was about to be hit with a 25% budget cut in the wake of a "strategic review" by the government's Treasury Board.
Documents obtained by Postmedia News through the Access to Information Act reveal internal memos describing how the cuts will occur, how the Mounties are briefing Public Safety Minister Vic Toews, and how the police and cabinet ministers are receiving some dire warnings about the consequences of the cutbacks.
The Mounties' briefing note to Toews explains that the air marshals program is seen as a "world leader" of its type and that it has been successful through a "combination of operation, intelligence and analysis activities."
"International partners were made aware of the funding reduction to the Canadian Air Carrier Protective Program," Toews was advised. "The RCMP anticipates a negative response from American and international partners."
In late October, RCMP Commissioner William Elliott received a strongly worded letter from the Air Line Pilots Association (International), urging him to halt the cuts to the air marshals program. The pilots wrote that since its inception, the program has proven to be one of Canada's most effective deterrents in countering the threat posed by "radical terrorists."
They added that the cuts are "difficult to comprehend" because global intelligence reports continue to indicate that aviation remains a primary target for terrorists.
"Because terrorists are intelligent, adaptive adversaries who are known to repeat their success and to be persistent in correcting their failures, the decision is even more puzzling," says the letter, also sent to Toews and Transport Minister Chuck Strahl.
"It is our opinion that the decision to make these CACPP staffing reductions is not only highly inadvisable, but is, in fact, a serious mistake that significantly jeopardizes the security and safety of airline travellers in particular and public safety in general, not only in Canada, but in other countries as well."
According to the documents obtained by Postmedia News, Greg Browning, the RCMP officer in charge of the program, informed fellow staff of the change through an e-mail last September that acknowledged the cuts would have an effect on the "morale" of those within the program, which was being cut by $12.1 million as of April 1, 2011.
Read more: http://www.canada.com/news/RCMP+expects+criticism+marshal+cuts/4091982/story.html#ixzz1Al2Fm8IO
The program, established in 2002 after the 9/11 attacks, involves specially trained covert Mounties who blend in with regular passengers on selected domestic and international flights.
Known as "inflight security officers," they carry semi-automatic handguns, are trained for fighting in closed quarters, and are seen as the last line of defence against suicidal hijackers or bombers.
The plainclothes air marshals are part of the Canadian Air Carrier Protective Program, and news leaked out through the RCMP's union last October that the program was about to be hit with a 25% budget cut in the wake of a "strategic review" by the government's Treasury Board.
Documents obtained by Postmedia News through the Access to Information Act reveal internal memos describing how the cuts will occur, how the Mounties are briefing Public Safety Minister Vic Toews, and how the police and cabinet ministers are receiving some dire warnings about the consequences of the cutbacks.
The Mounties' briefing note to Toews explains that the air marshals program is seen as a "world leader" of its type and that it has been successful through a "combination of operation, intelligence and analysis activities."
"International partners were made aware of the funding reduction to the Canadian Air Carrier Protective Program," Toews was advised. "The RCMP anticipates a negative response from American and international partners."
In late October, RCMP Commissioner William Elliott received a strongly worded letter from the Air Line Pilots Association (International), urging him to halt the cuts to the air marshals program. The pilots wrote that since its inception, the program has proven to be one of Canada's most effective deterrents in countering the threat posed by "radical terrorists."
They added that the cuts are "difficult to comprehend" because global intelligence reports continue to indicate that aviation remains a primary target for terrorists.
"Because terrorists are intelligent, adaptive adversaries who are known to repeat their success and to be persistent in correcting their failures, the decision is even more puzzling," says the letter, also sent to Toews and Transport Minister Chuck Strahl.
"It is our opinion that the decision to make these CACPP staffing reductions is not only highly inadvisable, but is, in fact, a serious mistake that significantly jeopardizes the security and safety of airline travellers in particular and public safety in general, not only in Canada, but in other countries as well."
According to the documents obtained by Postmedia News, Greg Browning, the RCMP officer in charge of the program, informed fellow staff of the change through an e-mail last September that acknowledged the cuts would have an effect on the "morale" of those within the program, which was being cut by $12.1 million as of April 1, 2011.
Read more: http://www.canada.com/news/RCMP+expects+criticism+marshal+cuts/4091982/story.html#ixzz1Al2Fm8IO
Marriage Commissioners Reference, 2011 SKCA 3 : The Court of Appeal for Saskatchewan has released its decision in the “Marriage Commissioners Reference”.
Case commentaries provided by the Saskatchewan Courts]
January 10, 2011
Marriage Commissioners Reference, 2011 SKCA 3
The Court of Appeal for Saskatchewan has released its decision in the “Marriage Commissioners Reference”. The case concerns the constitutional validity of possible legislative amendments that would allow marriage commissioners to refuse to perform same-sex marriage ceremonies.
In 2005, Parliament enacted a law redefining marriage to include same-sex unions. This led some marriage commissioners in Saskatchewan to refuse to solemnize such marriages on religious grounds. As a result, there were various proceedings under The Saskatchewan Human Rights Code and a civil action in the Court of Queen’s Bench. Against this background, the provincial government requested the Court of Appeal’s opinion on the constitutional validity of two possible amendments to The Marriage Act, 1995. Both would allow a commissioner to decline to solemnize a marriage if performing the ceremony would be contrary to his or her religious beliefs. In its reasons for decision, the Court said either option, if enacted, would be unconstitutional because it would violate the equality rights of gay and lesbian individuals and would not be a reasonable and justifiable breach of those rights.
The reasoning of the Court is grounded in section 15(1) of the Charter. This provision prohibits discrimination based on various characteristics including sexual orientation. The Court ruled that a law empowering marriage commissioners to deny their services to gay and lesbian individuals would clearly violate section 15(1) as it would treat them differently than other people and would do so in a discriminatory fashion based on their sexual orientation.
The key issue in the case, according to the Court, was whether this violation of rights could be justified as being reasonable within the special meaning of that term as it is used in section 1 of the Charter. In this regard, the Court held that accommodating the religious beliefs of marriage commissioners could not justify discrimination against gay and lesbian couples. The Court emphasized that marriage commissioners act as government officials, not private individuals, when they perform marriage ceremonies. It also pointed out that the obligation to solemnize same-sex marriages does not affect or interfere with the core elements of a commissioner’s religious freedom: the freedom to hold beliefs and the freedom to worship. In addition, the Court underlined that allowing marriage commissioners to withhold their services because of personal religious convictions would undercut the fundamental principle that government services must be provided to all members of the public on an impartial and non-discriminatory basis.
For further information contact Lian Schwann, Q.C., Registrar of the Court of Appeal at (306) 787-5382.
January 10, 2011
Marriage Commissioners Reference, 2011 SKCA 3
The Court of Appeal for Saskatchewan has released its decision in the “Marriage Commissioners Reference”. The case concerns the constitutional validity of possible legislative amendments that would allow marriage commissioners to refuse to perform same-sex marriage ceremonies.
In 2005, Parliament enacted a law redefining marriage to include same-sex unions. This led some marriage commissioners in Saskatchewan to refuse to solemnize such marriages on religious grounds. As a result, there were various proceedings under The Saskatchewan Human Rights Code and a civil action in the Court of Queen’s Bench. Against this background, the provincial government requested the Court of Appeal’s opinion on the constitutional validity of two possible amendments to The Marriage Act, 1995. Both would allow a commissioner to decline to solemnize a marriage if performing the ceremony would be contrary to his or her religious beliefs. In its reasons for decision, the Court said either option, if enacted, would be unconstitutional because it would violate the equality rights of gay and lesbian individuals and would not be a reasonable and justifiable breach of those rights.
The reasoning of the Court is grounded in section 15(1) of the Charter. This provision prohibits discrimination based on various characteristics including sexual orientation. The Court ruled that a law empowering marriage commissioners to deny their services to gay and lesbian individuals would clearly violate section 15(1) as it would treat them differently than other people and would do so in a discriminatory fashion based on their sexual orientation.
The key issue in the case, according to the Court, was whether this violation of rights could be justified as being reasonable within the special meaning of that term as it is used in section 1 of the Charter. In this regard, the Court held that accommodating the religious beliefs of marriage commissioners could not justify discrimination against gay and lesbian couples. The Court emphasized that marriage commissioners act as government officials, not private individuals, when they perform marriage ceremonies. It also pointed out that the obligation to solemnize same-sex marriages does not affect or interfere with the core elements of a commissioner’s religious freedom: the freedom to hold beliefs and the freedom to worship. In addition, the Court underlined that allowing marriage commissioners to withhold their services because of personal religious convictions would undercut the fundamental principle that government services must be provided to all members of the public on an impartial and non-discriminatory basis.
For further information contact Lian Schwann, Q.C., Registrar of the Court of Appeal at (306) 787-5382.
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