Same-sex marriage is widely anticipated to be legalized across Canada by Bill C-38, introduced by Paul Martin's Liberal government in the federal Parliament on February 1, 2005. At present, seven provinces (including the three most populous) and one territory issue marriage licences to same-sex couples; in total, about 27.9 million Canadians (roughly 87% of the population) live in provinces and territories where same-sex marriages are legal. The right to same-sex common-law marriage has existed nationwide since 1999.
Same-sex marriage has been legal:
The provinces of Alberta, New Brunswick and Prince Edward Island and the territories of Nunavut and the Northwest Territories do not issue marriage licences to same-sex couples.
In each of the eight jurisdictions where it is permitted, same-sex marriage was legalized as a result of court cases in which provincial or territorial justices ruled existing bans on same-sex marriage unconstitutional. Since then, many gay and lesbian couples have been able to obtain marriage licences in these provinces. Couples do not need to be residents of any of these provinces in order to marry there.
The status of marriages for same sex couples created in these provinces exist in somewhat of an interim legal capacity. According to the Constitution of Canada, the definition of marriage is the exclusive responsibility of the federal government—this interpretation was upheld by a December 9, 2004 opinion of the Supreme Court of Canada. At present, the federal government has not yet passed a law redefining marriage to conform to recent provincial court decisions. Until the passage of such a law, the previous definition of marriage is binding in the five jurisdictions where courts have not yet ruled it unconstitutional, but void in the eight jurisdictions where it has been successfully challenged. Given the Supreme Court ruling, the role of precedent in Canadian law, and the overall legal climate, it would be highly unusual for any challenges in the remaining five jurisdictions to not result in the legalization of marriage between same-sex individuals there as well; indeed, federal lawyers have ceased to contest such cases and only the Albertan provincial government remains officially opposed.
Bill C-38 was introduced in Parliament on February 1, 2005, by Justice minister Irwin Cotler to formally legalize the marriage of same sex persons in Canada. Though supported by the Martin government it will be subject to a free vote by backbench MPs. A member-by-member analysis indicates there are probably enough votes for C-38 to pass. Defeat of the bill would simply continue the status quo, with incremental legalization on a jurisidiction-by-jurisdiction basis likely to continue via court challenges. This trend could be reversed only through Parliament passing a new law that explicitly restricts marriage to the traditional definition notwithstanding the Canadian Charter of Rights and Freedoms's protection of equality rights, or by amending the Canadian constitution by inserting the clause "marriage is defined as being between a man and a woman", as has been recommended by several conservative groups and politicians. Given the current composition of the House of Commons, the passage of such a measure would be virtually unfathomable. Alberta Premier Ralph Klein has proposed instead putting the question to the public at large via a national referendum; this idea has been rejected by all four party leaders.
A draft of what would become Bill C-38 was released on July 17, 2003 by then-Justice minister Martin Cauchon; prior to its introduction he submitted the bill as a reference to the Supreme Court, asking the court 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. On December 9, 2004, the Supreme Court of Canada ruled that the marriage of same-sex couples is constitutional, that the federal government has the sole authority to amend the definition of marriage, and the Charter's protection of freedom of religion grants religious institutions the right to choose not to perform the marriage ceremonies of same-sex couples if they see fit.
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.  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:
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. 
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.
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
, 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.
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. 
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. 
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.  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)
The Newfoundland and Labrador decision
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 with the previous decisions, the provincial government did not oppose the suit; moreover, the federal government actually supported it. The case went to trial on December 20 and the next day, Mr. Justice Derek Green ordered the provincial government to begin issuing marriage licences to same-sex couples, an order with which the provincial government announced it would comply.
Discussion in Parliament, 1999-September 2003
The shift in Canadian attitudes towards acceptance of same-sex marriage and recent court rulings have caused the Parliament of Canada to reverse its position on the issue 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 Reform 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.
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.
The draft bill was subsequently referred to the Supreme Court; see below.
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." Motions 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 motion, 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 voted against same-sex marriage 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 motion was narrowly rejected by a vote of 137-132. See also: How the MPs voted
Supreme Court Reference re. Same-Sex Marriage
In 2003, the Liberal government referred a draft bill on same-sex marriage 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.
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)
See also: The full text of the December 9th decision
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 provincial courts to the effect that the change was required. The Court also ruled that religious institutions could not be required to perform same-sex marriages.
Debate prior to C-38's introduction
On December 9, 2004 Prime Minister Paul Martin indicated that the federal government will introduce legislation expanding marriage to same-sex couples. The government's decision was announced immediately following the court's answer in the Reference re: Same-Sex Marriage reference question.
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 suggested 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. On December 9, 2004 the court confirmed the federal government's right to define marriage. If Martin's government passes the legislation then every law and regulation in Canada that uses the word marriage will include same-sex marriages. This change could 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. This would likely be useless as well as the courts would likely rule that the Alberta government is acting ultra vires or beyond its jurisdiction. Besides that, the chances of passing legislation that discriminates against a specific group of citizens is relatively small anywhere in Canada, even Alberta. Many political observers 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. However in the Reference re: Same-Sex Marriage reference question decision the Supreme Court ruled that churches have the right to set their own criteria for marriage. Most observers regarded such a ruling as highly likely, since churches are permitted to choose whom they will marry in other circumstances; for example, some churches restrict marriage to those of certain religions, or those who have not previously been divorced.
In December, Premier Klein suggested that a national plebiscite be held on same-sex marriage, a measure Prime Minister Martin rejected. (CBC)
On December 14, Minister Cotler made a major concession to those opposed to same-sex marriage by indicating that the bill would allow civic officials to refuse to perform same-sex marriages. (365gay.com)
Debate over legislation
Main article: Bill C-38
Bill C-38, the Civil Marriage Act, was introduced to Parliament for its first reading in the House on February 1, 2005. The Prime Minister launched the debate on February 16. 
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 Prince Edward Island, and Same-sex marriage in New Brunswick.
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. 
Canadians may also sponsor their same-sex common-law or civil union partners for family-class immigration. 
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
On December 19, 2003, an Ontario court ruled that Canadians whose same-sex partners died after 1985 are entitled to survivor's benefits. 
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 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.   
Bloc Québécois MP Richard Marceau , who has advocated in favour of same-sex marriage, has requested that Justice Minister Irwin Cotler add a provision to the same-sex marriage bill altering the Divorce Act to permit same-sex divorce. Canoë (in French)
Bill C-38 introduced on February 1, 2005, includes within its draft text at section 8 the redefinition of spouse to mean "either of two persons who are married to each other".
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.
Public opinion on same-sex marriage in Canada has fluctuated greatly in recent years. In 2001, only 30% of Canadians surveyed were said to support same-sex marriage.
In 2003, that 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 about giving legal recognition to same-sex couples.
However, a February 2005 poll by the National Post and COMPAS showed that 68% were in favour of a referendum deciding the issue of same-sex marriage, and the population was nearly a three-way split between changing the definition of marriage, allowing "separate but equal" (civil unions) and no legal status at all for same-sex couples.
Support for same-sex marriage is greatest (by far) in Quebec, where polls have consistently shown support running 60% or higher. Opposition is greatest in the Prairie Provinces, where opposition has been running at about 2-to-1.
Pro and anti groups
Those who support or oppose the change in the definition of marriage can generally fall into distinct demographic groups. Supporters tend to be younger and live in urban areas. Opponents tend to be older and live in rural areas. The Prairie Provinces is the main region supporting the traditional definition of marriage with Ontario not far behind. Quebec is the main region supporting same-sex marriage, with support far higher than in any other region. Atlantic Canada and British Columbia are in between.
Notable groups advocating in favour of same-sex marriage include Egale Canada and the United Church of Canada. Groups opposed include REAL Women of Canada, Canada Family Action Coalition and all other religious organizations.
The Famous Players movie theatre chain received death threats after it allowed 15-second advertisements sponsored by Canadians for Equal Marriage, a pro–same-sex marriage group, to air in its theatres. The boycotting group believed the ads were free, and refused to air their own ad once they learned it was a paid advertisement. The theatre chain removed the ads in response to the threats.
Church and State
The survey shows that a strong majority of Canadians reject the idea that the churches have any role in what they see as a political, not religious, debate.
In July 2003, the hierarchy of the Catholic Church in Canada launched an attack 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 Frederick Henry of Calgary threatening Jean Chrétien, a Catholic himself, with purgatory.
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 Chrétien are Catholic and have often stated that they have felt "conflicted" by the issue of same-sex marriage. To this day, Prime Minister Martin does not openly proclaim the issue of same-sex marriage to be something he passionately stands for, but instead usually acknowledges it as a "equality issue" that has to be dealt with.
Amid a subsequent backlash in opinion, the Church remained remarkably quiet on the subject, at least in public, until late 2004, when two Catholic bishops stated their opposition to same-sex marriage in no uncertain terms. The Bishop of Calgary, Frederick Henry, even called on the government to outlaw homosexuality altogether. 
The largest Protestant denomination in the country, the United Church of Canada, is in favour of legalising same-sex marriages and testified to this effect during the cross-country Justice Committee hearings.
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