Same-sex marriage in Canada

In 1999, same-sex couples in Canada were ruled to be included in common-law marriage in the Supreme Court of Canada's decision in M. v. H. [1999] 2 S.C.R. 3. However this decision stopped short of giving them the right to civil marriages.

Provincial court decisions in three provinces had required the federal government to implement full same-sex marriage within the next two years:

in Ontario: Halpern et. al. v. Canada (Ontario Superior Court, July 12, 2002)
- Text of the ruling
- Summary of the decision from EGALE Canada

in Quebec: Hendricks v. Quebec (Quebec Superior Court, September 6, 2002)
- Text of ruling (in French)

in British Columbia: Barbeau v. British Columbia 2003 BCCA 251 (Court of Appeal for BC, May 1, 2003)
- Text of the ruling

The Federal Liberal government had sought leave to appeal the constitutionality of these rulings to the Supreme Court of Canada, though as above the government in June 2003 indicated that they would stop appealing.

The Ontario decision

Main article: Same sex marriage in Ontario

In 2003, the couples in Halpern appealed the decision, requesting that the decision take effect immediately instead of after a delay. On June 10, 2003, the Ontario Court of Appeal confirmed that current Canadian law on marriage violated the equality provisions in the Canadian Charter of Rights and Freedoms in being restricted to heterosexual couples. The court did not allow the province any grace time to bring its laws in line with the ruling, making Ontario the first jurisdiction in North America to recognize same-sex marriage. Consequently, the City of Toronto announced that the city clerk would begin issuing marriage licences to same-sex couples. The next day, the Ontario attorney general announced that his government would comply with the ruling.

The court also ruled that two couples who had previously attempted to marry using an ancient common-law procedure called reading the banns would be considered legally married.

On September 13, 2004, the Ontario Court of Appeal declared the Divorce Act also unconstitutional for excluding same-sex marriages. It ordered same-sex marriages read into that act, permitting the plaintiffs, a lesbian couple, to divorce. [2]

The B.C. decision

Main article: Same sex marriage in British Columbia

A ruling, quite similar to the Ontario ruling, was issued by the B.C. Court of Appeal on July 8, 2003. Another decision in B.C. in May of that year had required the federal government to change the law to permit same-sex marriages (see above). The July ruling stated that "any further delay... will result in an unequal application of the law between Ontario and British Columbia." A few hours after the announcement, Antony Porcino and Tom Graff became the first two men to be legally wed in British Columbia.

Barbeau v. British Columbia (A.G.) 2003 BCCA 406 (Court of Appeal for BC 2003/07/08) - text of the ruling (canlii.ca)
The Globe and Mail

Unlike the Netherlands, a couple need not reside in Ontario or B.C. or be Canadian citizens in order to be granted a marriage licence there. (However, one must be an Ontario resident for a year in order to divorce.) For this reason, many same-sex couples from the US and other countries have come to Canada to marry. (See Same-sex marriage in the United States.)

The Quebec decision

Main article: Same sex marriage in Quebec

Michael Hendricks and René Leboeuf marry on 1 April 2004

On March 19, 2004, the Quebec Court of Appeals ruled similarly to the Ontario and B.C. courts, upholding Hendricks and Leboeuf v. Quebec and ordering that it take effect immediately. (365gay.com) The couple who brought the suit, Michael Hendricks and René Leboeuf, immediately sought a marriage licence; the usual 20-day waiting period was waived, and they were wed on April 1 at the Palais de justice de Montréal.

The Quebec decision means that more than two-thirds of Canada's population now live in provinces where same-sex marriage is legalized.

Catholic Civil Rights League v. Hendricks (Quebec Court of Appeal, 2004/03/19) - in French
Unofficial English translation, .doc format

The Yukon decision

Main article: Same sex marriage in Yukon

On the 14th of July, 2004, in Dunbar & Edge v. Yukon (Government of) & Canada (A.G.) 2004 YKSC 54, the Yukon Territorial Supreme Court issued another similar ruling, effective immediately. Rather than reproducing the Charter equality arguments used by the other courts, the Court issued an innovative ruling: since the provincial courts of appeal had ruled that the heterosexual definition of marriage was unconstitutional (a position strengthened by the Attorney General's refusal to appeal those rulings), it was unconstitutional across Canada, and to continue to restrict marriages in Yukon to opposite-sex couples would result in an unacceptable state of a provision's being in force in one jurisdiction and not another. This argument could be used in future decisions in other provinces and territories.

The plaintiff couple, Rob Edge and Stephen Dunbar, were married on the 17th of July. [3]

Dunbar & Edge v. Yukon & Canada 2004 YKSC 54 (canlii.ca) - text of the ruling.

The Manitoba decision

Main article: Same sex marriage in Manitoba

On September 16, 2004, Justice Douglas Yard of the Manitoba Court of Queen's Bench declared that the current definition of marriage is unconstitutional. The judge said that his decision had been influenced by the previous decisions in B.C., Ontario and Quebec. [4] This decision followed the suits brought by three couples in Manitoba requesting that they be issued marriage licences. Both the provincial and federal governments had made it known that they would not oppose the court bid. One of the couples, Chris Vogel and Richard North, had legally sought marriage in a high-profile case in 1974 but had been denied. (365gay.com)

The Nova Scotia decision

Main article: Same sex marriage in Nova Scotia

In August 2004, three couples in Nova Scotia brought suit (Boutilier et al. v. Canada (A.G) and Nova Scotia (A.G)) against the provincial government requesting that it issue same-sex marriage licences. (365gay.com) On September 24, 2004, Justice Heather Robertson of the Nova Scotia Supreme Court ruled the current law is unconstitutional. Neither the federal nor the provincial governments opposed the ruling. (CBC)

The Saskatchewan decision

Main article: Same-sex marriage in Saskatchewan

Two couples brought suit in Saskatchewan for the recognition of their marriage in a case that went to trial in mid-October 2004. As with the previous two cases, the provincial government announced that they would not oppose the suit. (CBC Saskatchewan) On November 5, 2004, the judge ruled that a Charter right to same-sex marriage existed and that the common-law definition was discriminatory, thereby bringing same-sex marriage to Saskatchewan. (CBC News)

Proceedings in Newfoundland and Labrador

Main article: Same-sex marriage in Newfoundland and Labrador

Two lesbian couples brought suit on November 4 to have Newfoundland and Labrador recognize same-sex marriage. As before, the federal government will not oppose the lawsuit; the Newfoundland and Labrador Attorney General's office is considering its response. (CBC St. John's)

Parliament

The shift in Canadian attitudes towards acceptance of same-sex marriage, along with recent court rulings have caused the parliament of Canada to make a rather dramatic reversal in recent years.

On June 8, 1999 a resolution was introduced in the Canadian House of Commons to re-affirm the definition of marriage as "the union of one man and one woman to the exclusion of all others." The resolution was overwhelmingly passed, and had the support of Prime Minister Jean Chrétien and his Liberal Party, along with the opposition Canadian Alliance. The following year this definition of marriage was included in the revised Bill C-23, the Modernization of Benefits and Obligations Act, which continued to bar same-sex couples from full marriage rights.

In early 2003 the issue once again resurfaced, and the House of Commons Standing Committee on Justice and Human Rights proceeded to undertake a formal study of same-sex marriage, including a cross-country series of public hearings. Just after the Ontario court decision, they voted to recommend that the federal government not appeal the ruling.

Proceedings of the Standing Committee of Justice and Human Rights during the same-sex unions hearings

Civil status is of provincial jurisdiction in Canada. However, the definition of marriage is a federal law. On June 17, 2003, then Prime Minister Chrétien announced that the government would not appeal the Ontario ruling; instead, his government would introduce legislation to recognize same-sex marriage but protect the rights of churches to decide which marriages they would solemnize.

A draft of the bill was issued on July 17. It read:

1. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.

2. Nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs.

On September 16, 2003 a motion was brought to Parliament by the Canadian Alliance to once again reaffirm the heterosexual definition of marriage. The same language that had been passed in 1999 was brought to a free vote, with members asked to vote for or against the 1999 definition of marriage as "the union of one man and one woman to the exclusion of all others." Free votes are not legislatively binding in Canada, and are mostly done for symbolic purposes. The September vote was extremely divisive, however. Prime Minister Chrétien reversed his previous stance and voted against the bill, as did Paul Martin and many other prominent Liberals. Several Liberals retained their original stance, however and thus the vote was not defined purely along party lines. Controversially, over 30 members of the House did not attend the vote, the majority of whom were Liberals who had had voted against the bill in 1999. It was speculated that they had ignored the vote on the wishes of Chretien, who did not want to have the symbolic importance of the moment undermined by his own party. In the end, the bill was narrowly rejected by a vote of 137-132. See also: How the MPs voted

The Liberal government refered the bill to the Supreme Court of Canada, essentially asking it to review the bill's constitutionality before it is introduced. The reference as originally posed by Prime Minister Chrétien asked three questions:

1. Is the annexed Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes within the exclusive legislative authority of the Parliament of Canada? If not, in what particular or particulars, and to what extent?

2. If the answer to question 1 is yes, is section 1 of the proposal, which extends capacity to marry to persons of the same sex, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars, and to what extent?

3. Does the freedom of religion guaranteed by paragraph 2(a) of the Canadian Charter of Rights and Freedoms protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs? (Department of Justice)

Prime Minister Paul Martin later added a fourth in January 2004:

4. Is the opposite-sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in s. 5 of the Federal Law-Civil Law Harmonization Act, No. 1, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent?

The addition of a fourth question considerably delayed the opening of the court reference until well after the June 2004 general election, raising accusations of stalling. The consultative process was held in the autumn of 2004.

The Supreme Court of Canada ruled that the government has the authority to amend the definition of marriage, but did not rule on whether or not such a change is required by the equality provisions of the Canadian Charter of Rights and Freedoms. The Court stated that such a ruling is not necessary because the federal government had accepted the rulings of lower courts. The COurt also ruled that religious institutions could not be required to perform same-sex marriages. The government has indicated that it will propose the amendments in the Canadian House of Commons shortly.

The upcoming Parliamentary bill has caused rifts in the House of Commons, especially among the governing Liberals. Many Liberal MPs indicated that they would oppose the government's position in favour of same-sex marriage at a free vote. The Conservative Party is almost unanimously against the bill; the NDP and Bloc Québécois are almost unanimously in favour of it.

The premier of Alberta, Ralph Klein, had indicated that his province would use the notwithstanding clause to prevent same-sex marriages from being performed there. However, under the Canadian constitution, the definition of marriage is a federal right. The Chrétien government's submission to the Supreme Court explicitly asks the court to confirm this. If the court confirms Ottawa's right to define what a marriage is and Martin's government passes the legislation then every law and regulation in Canada the uses the word 'marriage' will include same-sex marriages. This change could probably not be overridden by using the notwithstanding clause. To achieve his goal, Klein would have to pass legislation explicitly discriminating against same-sex marriages and then use the notwithstanding clause to defend it against legal challenges. The chances of passing legislation that discriminates a specific group of citizens is small anywhere in Canada, even Alberta. Many see the Klein statement as mere political posturing.

Complicating matters, Conservative Party leader Stephen Harper has indicated that he would be willing to invoke the notwithstanding clause federally, if the Conservative Party achieves a majority in a general election. Paul Martin has stated that he would only invoke the notwithstanding clause to reconcile a potential conflict with freedom of religion if the Supreme Court rules that churches must perform same-sex marriages if asked. Most observers regard such a provision as highly unlikely, since churches are permitted to choose whom they will marry in other circumstances, for example restricting marriage to those of certain religions or those who have not been divorced.

On August 16, 2004, federal justice minister Irwin Cotler indicated that the federal government would no longer resist court cases to implement same-sex marriage in provinces or territories. [5]

On October 2, 2004, the Toronto Star reported that the government is planning to stall the legislation permitting same-sex marriage until the fall of 2005. [6]

The Toronto Star reported that Justice Minister Irwin Colter plans to introduce same-sex marriage legislation as soon as the Supreme Court of Canada issues it's decision on December 9 provided that it is in the government's favour, which will be released on December 7, 2004. [7]

Supreme Court of Canada

In its hearings that began in October, 2004, the Supreme Court of Canada accused the government of using the court for other goals when the Government declined to appeal rulings that altered the definition of marriage in several provinces.

"Justice Ian Binnie said it 'may not fulfill any useful purpose' to examine traditional marriage all over again, 'given the policy decision of the government.'"(Toronto Star)

On December 9th, 2004, the Supreme Court released it's decision on the four questions posed to them by the Liberal Government. The court ruled that the Federal Government has the authority to change marriage laws to include same-sex couples. However, the court also noted that the Charter of Rights and Freedoms protected religious officials from being forced into performing these marriages if they conflicted with their beliefs.

In an unexpected move, the Supreme Court refused to rule on whether the traditional view of marriage - that of one man and one woman - was constitutional. The court noted that the federal government had already accepted the rulings of the lower courts on this issue, which stated that excluding gays and lesbians from marrying was unconstitutional.[8]

See also: The full text of the December 9th decision

Other same-sex partner benefits in Canada

Other kinds of partnership

As mentioned above, Canadian same-sex couples are entitled to recognition as common-law spouses on an equal basis with opposite-sex couples.

The province of Quebec currently recognizes civil unions. Nova Scotia's Domestic partnerships offer similar benefits.

Recognition in other provinces and territories

The legal status of same-sex marriages in provinces and territories that do not perform them is not certain. One of the couples who brought suit in Nova Scotia did so in order that their Ontario marriage would be recognized.

On 30 October, 2003, Nunavut Premier Paul Okalik stated that the territory will indeed recognize marriages performed in other juristictions. It is not certain if the situation has come up or whether the premier's declaration will be respected. See Same-sex marriage in Nunavut.

The Premier of Alberta Ralph Klein is trying to prevent same-sex marriages from being performed or recognized in Alberta. See Same-sex marriage in Alberta.

For futher reading on this topic, see Same-sex marriage in Saskatchewan, Same-sex marriage in Newfoundland and Labrador, and Same-sex marriage in New Brunswick.

Immigration

Immigration Canada has begun acknowledging same-sex marriages contracted in the provinces and territories where same-sex marriage is legal between immigration applicants and Canadian citizens or permanent residents. [9]

Canadians may also sponsor their same-sex common-law or civil union partners for family-class immigration. [10]

The Canadian federal government says it recognizes same-sex spouses for immigration sponsorship (temporarily, pending a Supreme Court decision): http://www.cic.gc.ca/english/sponsor/index.html

Survivor benefits

On December 19, 2003, an Ontario court ruled that Canadians whose same-sex partners died after 1985 are entitled to survivor's benefits. [11]

Same-sex divorce in Canada

Interestingly enough, with all the debate on same-sex marriage that has occurred in recent years in Canada, little attention has been given to the (equally) important issue of same-sex divorce.

On September 13, 2004, a lesbian couple known as M.M. and J.H. in Ontario were granted Canada's first same-sex divorce. Their initial divorce application had been denied based on the fact that the federal Divorce Act defines spouse as "either of a man or a woman who are married to each other." However Madam Justice Ruth Mesbur of the Ontario Superior Court ruled that the definition of "spouse" in the Divorce Act was unconstitutional; her reasons for the decision have yet to be released. [12] [13] [14]

NFO CF Group survey

On September 5, 2003, the NFO CF Group released the results of a survey that they had done on Canadian attitudes toward same-sex marriage during late August.

The following sections discuss some of the highlights of the survey.

General Acceptance

Public opinion on gay marriage in Canada has fluctuated greatly in recent years. In 2001 only 30% of Canadians were said to support gay marriage.

Today, the percentage has risen to slightly over 50%, and two thirds of Canadians now believe that gay and lesbian couples in a committed relationship should have the same legal rights as heterosexual couples. This includes almost 40% of those who oppose the change in the definition of marriage. The debate in Canada is more about the use of the word "marriage" than giving legal recognition to same-sex couples.

Pro and anti groups

Those that support and oppose the change in the definition of marriage form into distinct groups. Supporters tend to be younger, female, live in urban areas and are better educated. Opponents tend to be older, male, live in rural areas and in the Prairie Provinces.

Church and State

The survey shows that a strong majority of Canadians reject the idea that the churches have a role in what they see as a political, not religious, debate.

During July 2003, the hierarchy of the Catholic Church in Canada launched a broadside against the Chrétien government's plans to change the definition of marriage. This is significant because Catholicism is the most popular religion in Canada with 43% of the population being followers. The attack culminated with Bishop Fred Henry of Calgary threatening Jean Chrétien with purgatory. Amid a subsequent backlash in opinion, the Church has remained remarkably quiet on the subject, at least in public.

The church assault was made more unpalatable because it was accompanied by Vatican claim that Catholic politicians should promote its policies rather than those desired by the electorate. This may cause future problems for Catholic politicians in Canada. Both Prime Minister Martin and former Prime Minister Chretien are Catholic and have often stated that they have felt "conflicted" by the issue of gay marriage. To this day, Prime Minister Martin does not openly proclaim the issue of gay marriage to be something he passionately stands for, but instead usually acknowledges it as a "equality issue" that has to be dealt with.

The largest Protestant denomination in the country, the United Church of Canada, is in favour of legalizing same-sex marriages and testified to this effect during the cross-country Justice Committee hearings.

General external links

es:Matrimonio del mismo sexo en Canadá fr:Mariage homosexuel au Canada zh:加拿大同性婚姻