On February 12, 2018, the Manitoba Court of Appeal released its decision in Kisilowsky v Her Majesty the Queen in Right of the Province of Manitoba. In this case, an evangelical marriage commissioner by the name of Kevin Kisilowsky had his civil marriage commissioner license revoked in 2005 after refusing to perform civil unions for same-sex couples as per provincial requirements. He brought the issue to court, claiming that being required to marry same-sex couples infringed on his freedom of religion guaranteed under the Canadian Charter of Rights and Freedoms. He further argued that the courts were creating a “hierarchy of rights” by requiring him to choose between his license and performing same-sex civil unions.
At the Court of Queen’s Bench in 2016, it was held that Kisilowsky was required to perform same-sex civil unions, but it was also explicitly pointed out to him that he was allowed to register as a religious official if he wished to circumvent this requirement. Unlike religious officials, civil marriage commissioners can only perform civil unions and are required to follow provincial anti-discrimination laws in doing so. Religious officials, however, are allowed to perform religious marriage ceremonies in accordance with their own personal beliefs and at their own personal discretion. In the alternative, Kisilowsky was also allowed to apply for a temporary marriage commissioner appointment to perform individual weddings; although this requires a delay which typically takes six weeks, it can also be done within two days if required. The Court of Queen’s Bench wrote that “if the applicant were allowed to refuse to [marry same-sex couples], other marriage commissioners may follow suit … This difficulty could be compounded in remote or small communities where the number of marriage commissioners is small.” She went on to say that Kisilowsky “may practice his faith as he chooses but is simply not permitted to use his faith as a basis to refuse to marry couples whose weddings, due to religious or moral views, offend his. He may marry who he wishes by applying for a temporary marriage commissioner’s appointment.”
The Court of Appeal upheld the ruling in the Court of Queen’s Bench. The Court of Appeal found that a reasonable balancing of rights had occurred in the initial ruling. The Court noted that although Kisilowsky’s freedom of religion had indeed been infringed upon, conduct which impacts upon the rights of others is not necessarily protected under the Charter. Since Kisilowsky appeared eligible to be registered as a religious official, or in the alternative was certainly able to obtain a temporary marriage commissioner appointment for any specific weddings he wished to perform, the impact on his freedom of religion was a small and reasonable one. In closing, the Court stated that “the fundamental issue in this case concerns the applicant’s ability to exercise his section 2(a) rights by solemnizing marriages for persons of his choice. He continues to be able to do that.”
This blog post was written by a CCLA-PBSC RightsWatch student. Opinions expressed do not necessarily reflect the views of the CCLA or PBSC.