Tutorial Workshop Preparation Exercise (Mandatory): Case Law Analysis Halpern v Canada, 2003 TASK: Read the case of Halpern v Attorney General, posted in the TUTORIALS material on cuLearn. Read through the Halpern case with an eye to the ‘framing question’ given and write a short sample Case Brief of the decision. Your sample should be no longer than 1750 words. You do not need to focus too much upon literary polish. This is a reading and drafting exercise for the purposes of review and discussion in your tutorial. You will learn from one another about what you think is required for a Case Brief and compare how you have read the case. BRING 5 COPIES OF YOUR CASE BRIEF TO THE TUTORIAL as you will be reading each other’s work and giving a copy to the TA. FRAMING QUESTION: Thinking back to our notional class research question, read this case with a view to answering one of the subsidiary questions: what shift occurred in judicial decision-making on same sex marriage in the Halpern case? BRIEFING HALPERN 1. What is the correct, complete citation for the Halpern case? 2. Draft a case brief of the Halpern case containing the following elements: 2.1 Cause of Action · Identify the parties to the case and the nature of the claim 2.2 Facts · Summarize the relevant and material facts that are necessary to understand what the dispute and legal case was about. 2.3 Legal Issues · What were the legal issues for resolution in the case were identified by the Court of Appeal? 2.4 Applicable (or Governing) Rules · In approaching resolution of the case and consideration of the legal issues, what main legal principles (case law) or legislative provisions were identified by the judges as forming the legal framework for the case? (Note: Generally judges set this information out near the beginning of their judgments. Your statement here should be quite short – you do not need to set out the details. You don’t need to include what they thought about this governing law in this short section.) 2.5 Decision · What was the decision in the case? · What remedy did the court order, if any? 2.6 Judicial Reasoning · Outline the reasoning of the judges with respect to the following points: · Common law definition of marriage · Approach to constitutional interpretation as it relates to defining marriage · Equality law and s15 of the Charter · Reasonable limits in s1 of the Charter 2.7 Ratio Decidendi · Identify and state the ratiodecidendi arising from the majority decision in the case 3 In summary and conclusion, based on a reading of the case, what shift(s) occurred in judicial decision-making on same sex marriage in the Halpern case? Notes: In preparing your summary, you may find it helpful to review the following references: · Class Powerpoints and Lectures on Cases· University of British Columbia, Faculty of Law, “Introduction to Reading and Briefing a Case” [Jarvis v Swan Tours], posted on cuLearn with permission. Also linked at: http://www.law ...

1. Tutorial Workshop Preparation Exercise (Mandatory):
Case Law Analysis
Halpern v Canada, 2003
TASK:
Read the case of Halpern v Attorney General, posted in the
TUTORIALS material on cuLearn.
Read through the Halpern case with an eye to the ‘framing
question’ given and write a short sample Case Brief of the
decision. Your sample should be no longer than 1750 words.
You do not need to focus too much upon literary polish.
This is a reading and drafting exercise for the purposes of
review and discussion in your tutorial. You will learn from one
another about what you think is required for a Case Brief and
compare how you have read the case.
BRING 5 COPIES OF YOUR CASE BRIEF TO THE
TUTORIAL as you will be reading each other’s work and giving
a copy to the TA.
FRAMING QUESTION:
Thinking back to our notional class research question, read this
case with a view to answering one of the subsidiary questions:
what shift occurred in judicial decision-making on same sex
marriage in the Halpern case?
BRIEFING HALPERN
1. What is the correct, complete citation for the Halpern case?
2. Draft a case brief of the Halpern case containing the
following elements:
2.1 Cause of Action
· Identify the parties to the case and the nature of the claim
2.2 Facts
· Summarize the relevant and material facts that are necessary
to understand what the dispute and legal case was about.

2. 2.3 Legal Issues
· What were the legal issues for resolution in the case were
identified by the Court of Appeal?
2.4 Applicable (or Governing) Rules
· In approaching resolution of the case and consideration of the
legal issues, what main legal principles (case law) or legislative
provisions were identified by the judges as forming the legal
framework for the case?
(Note: Generally judges set this information out near the
beginning of their judgments. Your statement here should be
quite short – you do not need to set out the details. You don’t
need to include what they thought about this governing law in
this short section.)
2.5 Decision
· What was the decision in the case?
· What remedy did the court order, if any?
2.6 Judicial Reasoning
· Outline the reasoning of the judges with respect to the
following points:
· Common law definition of marriage
· Approach to constitutional interpretation as it relates to
defining marriage
· Equality law and s15 of the Charter
· Reasonable limits in s1 of the Charter
2.7 Ratio Decidendi
· Identify and state the ratiodecidendi arising from the majority
decision in the case
3 In summary and conclusion, based on a reading of the case,
what shift(s) occurred in judicial decision-making on same sex
marriage in the Halpern case?

3. Notes:
In preparing your summary, you may find it helpful to review
the following references: · Class Powerpoints and Lectures on
Cases· University of British Columbia, Faculty of Law,
“Introduction to Reading and Briefing a Case” [Jarvis v Swan
Tours], posted on cuLearn with permission. Also linked at:
http://www.law.ubc.ca/files/pdf/current/jd/lrw/Case_Brief_exam
ple.pdf.· Australian Law Postgraduate Network, “Ratio
Decidendi and Obiter Dicta”, Online at
http://alpn.edu.au/node/60.
Questions are based on readings from attached PDF. Its from
the book “Risks, Controls And Security - Concepts and
Applications. Chapter 10)
Question 1.
Select a company whose success hinges primarily upon its
communication infrastructure, including publicly available
networks, such as the Internet. You may consider using, for
example, Skype (Vonage, Netflix, Dish Network might be other
possibilities). Download the most recent 10K filing of the
company with the SEC and review the risk factors disclosed by
the company. Determine if any risks they should have included
are missing from the list.
Question 2.
What are fundamental differences, from the risk management
perspective, between Public switched telephone network
(PSTN) and VoIP communication infrastructures? The term
“fundamental” is used here to denote intrinsic differences that
cause you to change or modify your risk perspective. Would
you recommend your employer (or former employer) to switch
to the VoIP infrastructure at this time? Why or why not?

4. Questions are based on readings from attached PDF
. Its from the book
“
Risks, Controls And Security
-
Concepts and Applications
. Chapter 10)
Question 1.
Select a company whose success hinges primarily upon its
communication infrastructure, including
publicly available networks, such as the Internet. You may
consider using, for example, Skype
(Vonage,
Netflix, Dish Network might be other possibilities). Download
the most recent 10K filing of the company
with the SEC and review the risk factors disclosed by the
company. Determine if any risks they should
have included are missing from the lis
t.
Question 2.
What are fundamental differences, from the risk management
perspective, between
Public switched
telephone network

5. (
PSTN
)
and VoIP communication infrastructures? The term
“fundamental” is used
here to denote intrinsic differences that caus
e you to change or modify your risk perspective. Would
you recommend your employer (or former employer) to switch
to the VoIP infrastructure at this time?
Why or why not?
Questions are based on readings from attached PDF. Its from
the book “Risks, Controls And Security -
Concepts and Applications. Chapter 10)
Question 1.
Select a company whose success hinges primarily upon its
communication infrastructure, including
publicly available networks, such as the Internet. You may
consider using, for example, Skype (Vonage,
Netflix, Dish Network might be other possibilities). Download
the most recent 10K filing of the company
with the SEC and review the risk factors disclosed by the
company. Determine if any risks they should
have included are missing from the list.
Question 2.
What are fundamental differences, from the risk management
perspective, between Public switched
telephone network (PSTN) and VoIP communication
infrastructures? The term “fundamental” is used
here to denote intrinsic differences that cause you to change or
modify your risk perspective. Would

6. you recommend your employer (or former employer) to switch
to the VoIP infrastructure at this time?
Why or why not?
Name:
Student ID:
TA:
Tutorial Workshop Prep Exercise - Analyzing Cases (Halpern)
Cause of Action and Procedural History
The case is a consolidation of two appeals to the Ontario Court
of Appeal. The first appeal is between seven couples namely
Hedy Halpern and Colleen Rogers, Michael Leshner and
Michael Stark, Aloysius Pittman and Thomas Allworth, Dawn
Onishenko and Julie Erbland, Carolyn Rowe and Carolyn
Moffatt, Barbara Mcdowall and Gail Donnelly, Alison Kemper
and Joyce Barnett on the one hand and the Attorney Generals of
Canada and Ontario respectively as well as Novina Wong as the

7. Clerk of the City of Toronto on the other hand. A number of
other parties were also allowed to intervene in this appeal
(p.1).The second appeal was between Metropolitan Community
Church of Toronto (MCCT) as applicant and the two Attorney
Generals of Canada and Ontario as respondents on the one hand
and a considerable number of parties appearing as interveners
on the other hand.
All parties in the case base their respective claims on
dissatisfaction with the certain aspects of the decision of the
Ontario Divisional Court. With respect to the appeals by the
Attorney General, they are simply challenging the finding by
the Divisional Court to the effect that the common law
definition of marriage infringes equality rights as enshrined in
s.15(1) of the Charter. On their part, the couples challenge the
decision of the Divisional Court on remedy to the effect that
Parliament should be given two years to reformulate the
common law definition of marriage. They instead want the
reformulation to take effect immediately.
Facts
Gay and lesbian couples had applied to the Toronto City Clerk
for marriage licenses which applications the clerk did not deny
but instead indicated to the couples that she would first have to
apply to court to seek clarification on the matter before acting
on such applications. Such clarification would not have been
sought had the couples in question been heterosexuals. This
prompted the couples to lodge their own application to the same
court. This prompted the couples to file their own applications
to the court. At the same time, a church had conducted marriage
ceremonies to two gay and lesbian couples and even issued them
with marriage certificates. The relevant law required church
marriages to be formalized by lodging the necessary documents
with the Regi strar General which documents were refused by
the later on the ground that the federal prohibited same-sex
marriages. Just as the couples, the church appealed this decision
to the Divisional Court. The court decided to consolidate the
two related applications pending before it.

8. Legal Issues
The Court of Appeal identified six issues for determination:
i. What is the common law definition of marriage and whether
that definition prohibits same-sex marriages?
ii. Whether there must be a constitutional amendment in order
to change the common law definition of marriage or the change
can be achieved by less demanding alternatives such as
parliament or courts?
iii. Whether the common law definition of marriage infringed on
MCCTs rights under ss. 2(a) and 15(1) of the Canadian Charter
of Rights?
iv. Whether the common law definitions of marriage infringe on
the couples’ equality rights in s. 15(1) of the Charter?
v. In the event that the answers to questions (iii) and (iv) are in
the affirmative, is the infringement saved by s. 1 of the Charter?
vi. In the event of a finding to the effect that the common law
definition of marriage is unconstitutional, then what is the
appropriate remedy and should such a remedy be suspended for
any period of time?
Applicable (or Governing) Rules
In dispensing of the appeal, the court identified a number of
legal authorities as constituting the necessary legal framework.
Some of the main authorities are as below:
i. Modernization of Benefits and Obligations Act, S.C.
2000.c.12.
ii. Hendricks v. Quebec (Attorney General),[2002] J.Q.No.
3816(S.C.).
iii. EGALE Canada Inc. v. Canada (Attorney General)[2003]
B.C.J. No.994, released May 1,2003.
iv. Hyde v. Hyde and Woodmansee
v. Hyde and Corbett v. Corbett [1970]2 All E.R. 33(P.D.A).
vi. Iantis v. Papatheodorou,[1971]1 O.R. 245.
vii. The Constitution Act of 1867
viii. Edwards v. A.G.(Canada,[1930] A.C.124(P.C).
Decision
For each of the six issues set out for determination, the court

9. gave the following decision:
i. The common law definition of marriage is the voluntary union
for life of one man and one woman to the exclusion of all others
which definition prohibits same-sex marriages.
ii. There is no need for a constitutional amendment in order to
change the common law definition of marriage as the courts can
alter that meaning.
iii. The decision as to issue (iii) was in the negative.
iv. Yes.
v. S. 1 of the Charter does not save the infringement of the
Couples’ equality rights under s. 15(1) of the Charter.
vi. The court then proceeded to make certain orders as to
remedies:
a. A declaration that the common law definition of marriage is
invalid to the extent that it precludes same-sex marriages.
b. A reformulation of the common law definition of marriage to
read thus, “the voluntary union for life of two persons to the
exclusion of all others.”
c. That orders (a) and (b) were to have immediate effect.
d. The court directed the Clerk to the City of Toronto to issue
marriage certificates to the seven gay and lesbian couples who
had earlier applied for the same.
e. The court directed the Registrar General of the Province of
Ontario to accept the marriage certificates of the two gay and
lesbian couples whose marriages were solemnized by MCCT.
Judicial Reasoning
Common law definition of marriage
In establishing the existence of such a definition, the court cited
both judicial precedent binding it to accept such a finding and a
statute reinforcing the same conclusion.
Approach to constitutional interpretation as it relates to
defining marriage
Here, the court adopted a progressive approach, which allows
the definition to change without necessarily amending the
constitution.
Equality law and s15 of the Charter

10. Here, the court sought the aid of earlier precedent, which
outlined a three-stage approach to analysis s. 15(1). Relevant to
the present analysis is the second stage of that inquiry which
asks whether a respective claimant falls in the enumerated or
analogous categories in s. 15(1). The court concluded that the
couples here were in the latter category.
Reasonable Limits and s.1 of the Charter
In deciding that the common law definition of marriage
infringed on s. 15(1), the court noted that an enquiry into this
matter would not have been necessary had there been no statute
confirming that meaning.
Remedy
In giving appropriate remedy, the court sought to strike a
balance between correcting the anomaly in the law and
providing something that was relevant to the immediate
circumstances of the affected people. This explains why the
remedies were to have immediate effect.
Ratio Decidendi and Obiter Dicta
The court formulated a ratio to the effect that the constitution
should be interpreted to accord with the changing times and
circumstances.
Note Up
1- The case has been considered eleven times in later decisions.
2- The case has been distinguished once, followed five times,
and referred to 10 times.
Summary and Conclusion
In view of the foregoing, one can conclude that Halpern was a
major shift in judicial decision-making regarding same-sex
marriages. Prior decisions had tended to show deference to the
legislature. Halpern instead saw same-sex marriages as matters
to which the courts needed not show such deference in
circumstances where the issues was mostly to do with
interpretation.

11. Reference
Halpern v. Canada, [2003] O.J. No. 2268
8