Judge to decide if gay couple who tied the knot in 1974 will have marriage validated

Nearly five decades after they tied the knot, a gay Winnipeg couple is still fighting to have their marriage registered by the Manitoba government.

"We're dealing with irrational prejudice here," said Chris Vogel, who married his love Richard North in 1974.

"I mean, we fell in love. We settled down. We've lived happily ever after."

The two became the first gay couple to get married in a Canadian church, and had the only same-sex marriage before 2004, according to court documents. That year, Manitoba became the fourth province to legalize gay marriage.

That year, a judge called their marriage a "nullity," and in 2018, a human rights adjudicator ruled he was bound by the 1974 ruling, which found there was nothing to be registered because there had been no marriage.

The Manitoba Human Rights Commission is seeking a judicial review of that decision Monday in a Winnipeg courtroom.

"Mr. North shouldn't be punished for being a pioneer in the LGBTQ community. He should be celebrated for that and have his marriage registered," said Sacha Paul, a lawyer for the Manitoba Human Rights Commission.

North, 69, filed a complaint with the commission in 2015 after another failed attempt at registering his marriage with Vital Statistics.

The commission wants North's marriage registered, and to find the province discriminated against him because of his sexual orientation, which is a protected ground under Manitoba's human rights code.

"The issue of same-sex marriage was never about marriage for us, it was about equality," said North in an email.

Vogel, 73, admits he gave up on the fight to have his marriage certified years ago, but North kept it going.

"It's all kind of surreal. You know, it's like Animal Farm or something," Vogel said.

He remains optimistic that a court will register their marriage.

"We're always hopeful that for once it will suddenly dawn on everybody. What we've been saying is that, OK, if you treat gay couples at any time differently than heterosexual couples, then it's discrimination that's illegal under the code and it has to be rectified."

A court document filed by the commission said there is no dispute between it and the province that North's marriage "ought to be worthy of recognition and registration."

The disagreement is whether the adjudicator erred in finding North had not suffered discrimination by relying upon the judge's 1974 decision.

Manitoba's position is the rule of law requires tribunals to follow courts, Paul said, and "they feel bound by the decision of the court and that an adjudicator, a human rights adjudicator, simply can't go over and above a decision of a court."

But Paul said the commission wants a judge to rule that this is a rare and unique circumstance that could allow an adjudicator to overturn a decision of a court.

A provincial spokesperson declined to comment on the judicial review but said generally speaking, marriage is a matter of shared jurisdiction under Canada's constitution.

"The federal parliament has jurisdiction over who can lawfully marry and the provinces have jurisdiction over the process to solemnize a marriage. Because capacity to marry falls within federal jurisdiction, Manitoba cannot act unilaterally."

Manitoba Court of Queen's Bench Justice ​Gerald Chartier is overseeing the case, and testimony from both sides is expected to go on all day Monday.