Reference Re Marriage Commissioners: Single-Entry System

In a previous blog post I discussed the recent Saskatchewan Court of Appeal decision on whether marriage commissioners—as civil servants—can opt out of performing same-sex marriages. The Court found that legislative amendments, which would have allowed Saskatchewan’s marriage commissioners to refuse to perform same-sex marriages on religious grounds, were discriminatory and unconstitutional. A discussion from the post ensued, and John Gregory’s comments into how civil marriage ceremonies are provided in Ontario required me to delve deeper into the issue.

After some research, I found out that the following statement I made is not quite accurate:

Saskatchewan Justice Minister Don Morgan says the government is accepting the Court’s decision (the government concluded there are no grounds for appeal) but is looking at a roundabout way to allow civil servants to refuse to perform same-sex civil marriages and avoid future litigation. To accommodate the religious beliefs of marriage commissioners, the province is considering implementing a system similar to the one in Ontario where couples go to a central office instead of contacting an individual commissioner. Commissioners who don’t want to perform same-sex ceremonies can be accommodated “behind the scenes” (i.e., they’ll never be called on to perform a same-sex wedding) and couples don’t risk being denied services.

The Saskatchewan government did look into how other provinces and territories dealt with the issue. Suneil Sarai, of the Family Justice Services Branch of the Saskatchewan Ministry of Justice and Attorney General undertook a cross-country survey, contacting the various provincial and territorial ministries responsible for the administration of marriage laws in each jurisdiction. As a result of his research, he prepared an affidavit and submitted it to the government. The affidavit was entered into the record before the Court jointly by counsel appointed to argue for and against the proposed bills.

This affidavit provides a clear picture of how each jurisdiction provides civil marriage services and how they accommodate same-sex marriages.

Clause 8 of the affidavit deals with Ontario stating, “while there is no class of persons known as ‘marriage commissioners’, marriages may be solemnized by religious officials, judges, justices of the peace and municipal clerks and any person authorized to perform a marriage in Ontario is under no obligation to perform any marriage and can refuse to do so without disclosing their reason”.

Thus, my comment on my previous post referring to Ontario as having marriage commissioners or an established single-entry system is not quite accurate. If there is a “behind the scenes” system to accommodate those called to perform same-sex marriages, there is no record of it, and the people I have talked to will not confirm or go on record.

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