''Layland v Ontario (Minister of Consumer and Commercial Relations)'' was a 1993

case Case or CASE may refer to: Containers * Case (goods), a package of related merchandise * Cartridge case or casing, a firearm cartridge component * Bookcase, a piece of furniture used to store books * Briefcase or attaché case, a narrow box to c ...

brought towards the Ontario Divisional Court (

Superior Court In common law systems, a superior court is a court of general jurisdiction over civil and criminal legal cases. A superior court is "superior" in relation to a court with limited jurisdiction (see small claims court), which is restricted to civil ...

) after a

same-sex couple A same-sex relationship is a romantic or sexual relationship between people of the same sex. ''Same-sex marriage'' refers to the institutionalized recognition of such relationships in the form of a marriage; civil unions may exist in countries w ...

was denied a

marriage license A marriage license (or marriage licence in Commonwealth spelling) is a document issued, either by a religious organization or state authority, authorizing a couple to marry. The procedure for obtaining a license varies between jurisdiction ...

at Ottawa City Hall. The two applicants sued the Ontario Minister responsible for the issuing of marriage licenses and the

federal government A federation (also known as a federal state) is a political entity characterized by a union of partially self-governing provinces, states, or other regions under a central federal government (federalism). In a federation, the self-governin ...

on the grounds that the acknowledged

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...

prohibition of same-sex couples from marriage violated their rights under the

Canadian Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...

at section 15 which prohibits discrimination based on "sex". In a 2-1 decision, judges of the Ontario Divisional Court dismissed the application for an order requiring the issue of a marriage licence, ruling "that under the common law of Canada applicable to Ontario a valid marriage can take place only between a man and a woman." In the 2002 decision of the same Divisional Court, one judge referenced this previous decision, arguing it wasn't persuasive and was non-binding on the Court: In ''Layland'', the court described the position of the province and the

Attorney General of Canada The asterisk ( ), from Late Latin , from Ancient Greek , ''asteriskos'', "little star", is a typographical symbol. It is so called because it resembles a conventional image of a heraldic star. Computer scientists and mathematicians often voc ...

as follows:

The respondent Minister opposes the application on the ground that the applicants lack the capacity at common law to marry one another for the reason given by the City Clerk's Office. The Minister takes no position on the alleged Charter violation, because capacity to marry is a matter within the exclusive legislative authority of the
Parliament of Canada The Parliament of Canada (french: Parlement du Canada) is the federal legislature of Canada, seated at Parliament Hill in Ottawa, and is composed of three parts: the King, the Senate, and the House of Commons. By constitutional convention, the ...
under Class 26 of s. 91 of the Constitution Act, 1867. The Attorney General of Canada (the "Attorney General") opposes the application on the ground that the concept of marriage at common law is limited to persons of opposite sex and denies that such limitation violates s. 15 of the Charter. The majority ruled that "persons of the same sex do not have the capacity to marry one another". With respect, the decisions to which I have referred assumed, without analysis, that the inability of persons of the same sex to marry was a question of capacity. The decisions are not binding on this court and, with respect, I do not find them persuasive. In my opinion, the fact that persons of the same sex may not legally marry is not a question of capacity. Rather the inability of same-sex couples to marry results from the fact that, by its legal nature, marriage is a relationship which only persons of opposite sex may formalize. The requirement that parties to a legal marriage be of opposite sex goes to the core of the relationship and has nothing to do with capacity.

References

{{italic title, all=yes, noerror Section Fifteen Charter case law 1993 in Canadian case law Canadian LGBT rights case law Ontario case law 1993 in Ontario 1993 in LGBT history