Same-sex marriage in Canada

Same-sex marriages were legalized in the Canadian province of Ontario on June 10, 2003, and in the province of British Columbia on July 8, 2003.

A federal bill to extend that right in all provinces and territories is pending; a draft of the bill was released on July 17, 2003.

The right to same-sex common-law marriage had already existed since 1999.

Table of contents

1 History 1.1 Court rulings 1.1.1 Background 1.1.2 The Ontario decision 1.1.3 The B.C. decision 1.2 Parliament 2 Civil unions

History

Court rulings

Background

• EGALE: A chronological listing of court documents

In 1999, same-sex couples in Canada were ruled to be included in common-law relationships, 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 undertake same-sex civil marriages.

• Text of the landmark case M. v. H. (1999) 2 S.C.R. 3
• Article about the M. v. H. case

Provincial appellate 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 (July 12, 2002)
  • Text of the ruling
  • Summary of the decision from EGALE Canada

• in Quebec: Hendricks and Leboeuf v. Quebec (September 6, 2002)
  • Text of ruling (.pdf, in French)

• in British Columbia: Barbeau v. British Columbia (May 1, 2003)
  • Text of the ruling in Barbeau v. British Columbia (A. G.), 2003 B.C.C.A. 251 (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

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.

• The Globe and Mail

The B.C. decision

A ruling, quite similar to the Ontario ruling, was issued by the B.C. Court of Appeals 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 below). 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.

• 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.)

Parliament

The Canadian House of Commons Standing Committee on Justice and Human Rights undertook to study same-sex marriage, including a cross-country series of public hearings, during the first part of 2003. 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, Prime Minister Jean 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.

The government will seek 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 premier of Alberta, Ralph Klein, had indicated that his province would use the notwithstanding clause to prevent gay marriages from being celebrated there.

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 Canadian Alliance is unanimously against the bill; the NDP and Bloc Québécois are almost unanimously in favour of it; and the Tories are also divided, with most being opposed.)

A motion brought to Parliament by the Canadian Alliance to reaffirm the heterosexual definition of marriage was narrowly defeated on September 16, 2003. How the MPs voted

Civil unions

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