Same-sex marriage in Canada
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Same-sex marriages in Canada are currently legal in the three most populous provinces and one territory:
- in the province of Ontario from June 10, 2003;
- in the province of British Columbia from July 8, 2003;
- in the province of Quebec from March 19, 2004;
- in the territory of Yukon from July 14, 2004.
In total, about 75% of Canadians live in provinces and territories where same-sex marriages are allowed.
The decisions came as a result of individual court cases in which the provincial justices ruled the ban on same-sex marriage unconstitutional. Since then, many gay and lesbian couples have been able to obtain marriage licences in these provinces.
The status of gay marriages created in these provinces exist in somewhat of an interim legal capacity. According to the Canadian constitution, the definition of marriage is a responsibility of the federal government, and, at present, the federal government has not yet passed a law redefining marriage to conform to recent court decisions.
A federal bill to formally legalize same-sex marriage in Canada is pending; a draft of the bill was released on July 17, 2003, but it has not been tabled in parliament. Because of the political controversy over this issue, the current administration of Prime Minister Paul Martin is formally asking the Supreme Court of Canada to rule on whether limiting marriage to heterosexual couples is consistent with the Canadian Charter of Rights and Freedoms and if same-sex civil unions are an acceptable alternative. The high court is not expected to rule on this issue until at least the summer of 2004. Many Canadians see this as a political maneuver designed to keep this controversial topic out of the federal election, which was held on June 28 2004.
The right to same-sex common-law marriage in Canada has existed since 1999.
History
Court rulings
Background
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 Quebec: Hendricks v. Quebec (Quebec Superior Court, September 6, 2002)
- in British Columbia: Barbeau v. British Columbia 2003 BCCA 251 (Court of Appeal for BC, May 1, 2003)
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
See also 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. [1]
The B.C. decision
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
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) - text of the ruling (canlii.ca)
The Yukon decision
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. [2]
- Dunbar & Edge v. Yukon & Canada 2004 YKSC 54 (canlii.ca) - text of the ruling.
Proceedings in Nova Scotia
In August 2004, three couples in Nova Scotia brought suit against the provincial government requesting that it issue same-sex marriage licences. (365gay.com)
Proceedings in Manitoba
Also in August 2004, three couples in Manitoba brought suit against the federal and provincial governments requesting to be issued marriage licences. The provincial government announced that it would not oppose the court bid. This followed Federal Justice Minister Cotler's announcement that the federal government would not oppose further court challenges either. 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)
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.
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 Chreiten 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 is now currently in the process of seeking a reference from the Supreme Court of Canada, essentially asking it to review the bill's constitutionality before it is introduced. The bill is expected to be introduced in the next session of Parliament in 2004. The questions on the reference were expanded in January 2004, apparently in a political move to delay parliamentary debate over the issue until well after the next general election.
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. [3]
Other same-sex partner benefits in Canada
As mentioned above, Canadian same-sex couples are entitled to recognition as common-law spouses on an equal basis with opposite-sex couples. Canadians may sponsor their same-sex common-law partners for family-class immigration. [4]
The province of Quebec currently recognizes civil unions. Nova Scotia's Domestic partnerships offer similar benefits.
On December 19, 2003, an Ontario court ruled that Canadians whose same-sex partners died after 1985 are entitled to survivor's benefits. [5]
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. In July of 2004, a lesbian couple filed for divorce. Their application was denied based on the fact that the federal Divorce Act defines spouses as "either of a man or a woman who are married to each other." Their lawyer asked the Ontario Superior Court of Justice to rule on the constitutionality of the Divorce act. In addition, the federal government has been asked not to contest the challenge. The justice department has conceded that to block the divorce would be unconstitutional. [6] [7]
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 Ministers Martin and Chretien were 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.
Rights
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. [8]