Nullity ruling before the courts

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This article was published 13/04/2021 (1781 days ago), so information in it may no longer be current.

It’s been almost 50 years since Richard North and Chris Vogel were married, surrounded by friends and family, in a Winnipeg church.

However, the couple is still waiting on the courts to have their union recognized by the province.

Vogel and North were married in a Unitarian church in 1974, decades before Manitoba eventually legalized gay marriage in 2004.

When they attempted to register their marriage with the Vital Statistics Agency in the ’70s, a judge denied it, declaring it a “nullity.”

That declaration has continued to follow the spouses through the years; the pair attempted again to register the marriage in 2004 and 2015, but both attempts were unsuccessful.

North filed a human rights complaint in 2015, which ended three years later, when an adjudicator decided the Manitoba Human Rights Commission could not overturn the 1974 nullity ruling, and the province had not discriminated against the pair in refusing to certify the union.

“We are used to this; we’ve being doing it for 50 years,” Vogel said in a phone interview outside of court Monday.

“It is nightmarish, but after a while you get used to it. You’re not going to stand for it, but you’re not surprised when it happens.”

In what Vogel hopes is the “last” battle, the commission is hoping to see the marriage registered, and is asking the court to find the adjudicator was wrong to decide the province did not discriminate against North by refusing to certify the marriage in 2015.

Both the province and commission presented arguments at an all-day hearing before Manitoba Court of Queen’s Bench Justice Gerald Chartier.

The province’s lawyer, Charles Murray, argued the adjudicator was simply “following the rule of law,” and did not have the authority to overrule the original 1974 nullity, adding he believes the couple deserves to have their marriage registered.

“Manitoba acknowledges Mr. North and Mr. Vogel, and recognizes that they were pioneers in the same-sex marriage movement in Canada,” Murray said in court Monday.

“Manitoba believes and continues to believe that Mr. North’s union to Mr. Vogel is worthy of being recognized as a marriage. We want to recognize it as a marriage.”

Murray argued because the adjudicator did not have the power to reverse the 1974 legal decision, the couple’s sexual orientation was not a factor in the decision to deny the marriage registration decades later.

“Everyone has to follow court orders until they’re declared wrong,” Murray told the judge. “Was Manitoba discriminating based on sexual orientation or was it following the rule of law?”

Miranda Grayson, speaking on behalf of the human rights commission, responded previous court rulings need not be followed in situations where the rule of law is unfair or unjust.

“What we’re talking about is an outdated version of the law that continues to prohibit two men from having their completely legal marriage registered,” Grayson said.

“The reason that this marriage has been declared a nullity is because it was two men who were married in 1974.”

Grayson countered the province was continuing to rely on a decision that would be considered “wrong today in law,” as it was based in a legal definition of marriage that has since changed.

For his part, Vogel remains hopeful things will change this time around, and the province will recognize the couple has been subject to ongoing discrimination through the years.

“We’re doing the right thing, it makes no difference to anybody else. Altogether there’s very little reason except they’ve got this stuck in their heads and I think the province… they’re embarrassed by it, they’re trying to pretend they never did it,” Vogel said.

“They start off all their presentations saying the province of Manitoba doesn’t discriminate, well maybe it doesn’t now, but it sure did then — and they continue to do it in this respect, every single day.”

The judge is expected to present a decision in the coming days.

julia-simone.rutgers@freepress.mb.ca

Twitter: @jsrutgers