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Attorney General of Canada v Pete Pears, Ben Britten & Ors. [2004] 2 C. of Sh. 1

Fact Pattern

ATTORNEY GENERAL OF CANADA v. PETE PEARS, BEN BRITTEN & ORS.

Matter No.…………2/2003
Hearing Date………4, 6/11/2003

Statement of Agreed Facts

Pete Pears and Ben Britten, joined by seven other gay and lesbian couples (“the Couples”) living in Toronto, applied for civil marriage licenses. The Clerk of the City of Toronto did not deny the licenses but, instead, indicated that she would apply to the court for directions and hold the licenses in abeyance in the interim.

The Couples commenced their own application. By order dated August 22, 2000, Lang J. transferred the Couples’ application to the Divisional Court. The Clerk’s application was stayed on consent.

The Couples’ application was heard by the Divisional Court, which in reasons released on July 12, 2002, unanimously held that the common law definition of marriage as “the lawful and voluntary union of one man and one woman to the exclusion of all others” infringed the Couples’ equality rights under the Canadian Charter of Rights and Freedoms.

The Attorney General of Canada appealed from the judgment of the Divisional Court on the equality issue. The ruling of the lower court was, however, upheld on appeal. On June 10, 2003, the Court of Appeal for Ontario released its judgment, concluding as follows:1

    To remedy the infringement of these constitutional rights, we:
  1. declare the existing common law definition of marriage to be invalid to the extent that it refers to “one man and one woman”;
  2. reformulate the common law definition of marriage as “the voluntary union for life of two persons to the exclusion of all others”;
  3. order the declaration of the invalidity in
    1. and the reformulated definition in
    2. to have immediate effect;
  4. order the Clerk of the City of Toronto to issue marriage licenses to the Couples.

Procedural History

The applicants, representing the Attorney General for Canada, appeal the judgment of the Court of Appeal of Ontario and seek to rescind the order to the Clerk of the City of Toronto to issue marriage licenses to the Couples. The grounds relied upon in the statement of claim, included the following:

  1. The meaning of marriage is not subject to the jurisdiction of the court
  2. Same-sex marriage is contrary to the laws of this jurisdiction
  3. The transformation of the common law definition of marriage is not consistent with the laws of Shakespeare

The respondents, representing the Couples, argue that the laws of this jurisdiction are substantially in accord with the ruling of the Court of Appeal for Ontario with regard to the legality of same-sex marriage.

Rules of Court

The Court of Shakespeare adheres, mutatis mutandis, to the procedure of a final appellate court under the Rules of the McGill Moot Court.2 Written facta will be 12-15 pages in length in the form indicated in the Rules, exchanged no later than Friday, October 17, 2003.

Oral argument will be presented to the Full Court for judgment, in the week beginning November 3, 2003. Each side will have up to 30 minutes to present their case and each counsel must speak for at least 10 minutes. Five minutes rebuttal time may be reserved.

The Court’s sole Institutes, Codex, and Digest, is comprised by the works of William Shakespeare.

In accepting jurisdiction to hear the current case, the Court deems the following plays to be of greatest importance and relevance for the case before it: A Midsummer Night’s Dream, As You Like It, Twelfth Night, The Winter’s Tale. The Court will consider arguments based on other of Shakespeare’s works only where a compelling argument can be made for their special pertinence.

The Court also notes the existence of precedent from within this jurisdiction bearing on the question of the legal and constitutional interpretation of the laws of Shakespeare.3

Literature on the nature and theories of legal interpretation; on the origin and reception of law; and on the particular interpretations of Shakespearian texts or the canon as whole, are relevant in determining how the Court is to understand and apply the laws of Shakespeare. They may be of assistance to the court but they cannot supercede its primary textual duty. Legal material from other jurisdictions may help to inform your understanding of the issues but are neither binding nor influential in this jurisdiction.

Registrar of the Court of Shakespeare
2 September 2003

1. Halpern v. Attorney General of Canada, 2003 Ont. C.A. LEXIS 271.
2. Rules of Practice of the Moot Court at the Law Faculty of McGill University.
3. In Re Attorney General for Canada, ex parte Heinrich, (2003) 1 C. Sh. 1.