The Saskatchewan Court of Appeal has issued a decision in the case of Marriage Commissioners Appointed Under The Marriage Act (Re), 2011 SKCA 3. I have only had a brief opportunity to read the judgment and will comment on it detail later but in general terms it appears to follow the same logic as the English case of Ladele v London Borough of Islington  EWCA Civ 1357
The Court has decided that proposed legislative amendments to the Saskatchewan Marriage Act 1995 which would have allowed Saskatchewan’s marriage commissioners to refuse to perform same-sex marriages on religious grounds are contrary to Saskatchewan Anti Discrimination Law and the Canadian Charter of Rights and Freedoms. As I blogged back in October 2009 the Ontario Canadian Supreme Court in the 2004 case of Halpern et al. v. Canada had decided that the Common Law definition of marriage as between one man and one woman was not consistent with the Charter and subsequently Same Sex Marriage had become legal throughout Canada though the specific legislation remains the responsibility of the individual provinces in Canada.
The Saskatchewan government had proposed two potential legislative amendments to the Marriage Act in order to deal with situations where some marriage commissioners were called before the Saskatchewan Human Rights Commission or the Courts for refusing to perform same-sex marriages: one amendment would have permitted marriage commissioners appointed before November 5, 2004 to refuse to solemnize a marriage contrary to their religious beliefs, and a second would have allowed any marriage commissioner, no matter when they were appointed, the same right.
The court said that its decision was based on section 15(1) of the Charter of Rights and Freedoms which prohibits discrimination based on characteristics such as race and sex. Though the Charter makes no mention of sexual orientation, the courts have nevertheless read sexual orientation into this section. The court said that a law empowering marriage commissioners to deny their services to homosexual individuals would 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 Court claimed 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.
What that judgment however seems to ignore, as did Ladele, the possibility of allowing individual government employees a right of conscientious objection so long as the "service" was provided by someone. On a personal note I find it somewhat Orwellian to use a "Charter of Rights and Freedoms" in order to justify forcing people to do something against their conscience and to say that that even a Democratically elected Legislature does not have the right to give people freedom to refuse to perform an action. That is not a Charter of Rights and Freedom so much as a Charter of Coercion and is an object lesson in Judicial activism exercising a corrosive influence on democracy and freedom.