Same-sex marriage in Canada
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- 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.
Presently, 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 to keep this controversial topic out of a federal election expected in the spring.
The right to same-sex common-law marriage in Canada has existed since 1999.
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2 Other same-sex partner benefits in Canada 3 NFO CF Group survey 4 See also |
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.
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.
Michael Hendricks and RenÃÂé Leboeuf marry on 1 April 2004
The Quebec decision means that more than two-thirds of Canada's population now live in provinces where same-sex marriage is legalized.
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 ChrÃÂétien and his Liberal Party, along with the opposition Alliance Party. 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.
A draft of the bill was issued on July 17. It read:
History
Court rulings
Background
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
The B.C. decision
The Quebec decision
Parliament
On September 16, 2003 a motion was brought to Parliament by the Canadian Alliance to 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 prominant 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 Canadian Conservative Party is almost unanimously against the bill; the NDP and Bloc QuÃÂébÃÂécois 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 ChrÃÂétien 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.
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. [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]
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.
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.
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.
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 ChrÃÂétien 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 ChrÃÂétien with purgatory. Since then, the church has apparently decided that Canadians do not 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.
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.Other same-sex partner benefits in Canada
NFO CF Group survey
General Acceptance
Pro and anti groups
Church and State