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
2 Other same-sex partner benefits in Canada
3 NFO CF Group Survey
4 Related links

History

Court rulings

Background

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.

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

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 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.

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.

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. 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.

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

Other same-sex partner benefits in Canada

As mentioned above, Canadian same-sex couples are entitled to recognition as common-law unions on an equal basis with opposite-sex couples. Canadians may sponsor their same-sex common-law partners for family-class immigration. [1]

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. [1]

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. A PDF file of the full text of the survey is available from an external site.

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

General Acceptance

Two thirds of Canadians believe that gay and lesbian couples in a committed relationship should have the same 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.

This breakdown has significant political implications. Like western European countries, Canada does not produce enough people to maintain its population. It has a total fertility rate of only 1.64 live births per women (2000 est). So Canada depends upon immigration to maintain and increase its population. Immigrants almost always settle in a large urban area. Toronto alone receives about half the immigrants to Canada. Population growth occurs mainly in urban areas while the rural areas tend to have a static or falling population.

Thus the future belongs to those who support the change – the young and urban dwellers. A political party interested in its own future would adopt policies favoured by this group. It is not surprising the Liberal party should support the change. Many Canadians believe that the only principle and policy of the Liberals is to remain in power.

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. The attack culminated with Bishop Fred Henry of Calgary threatening Jean Chrétien with purgatory. Since then, the churchmen apparently have gotten the word that Canadians do feel that this debate is any of their business and have 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.

Related links