Same-sex marriage in Canada 249620 225339836 2008-07-13T04:38:47Z Kotra 600804 /* Quebec decision */ no reason for this picture to be larger than standard size {{Same-sex unions}} On [[July 20]], [[2005]], Canada became the fourth country in the world to legalize '''same-sex marriage''' nationwide with the approval of the [[Civil Marriage Act]]. Court decisions, starting in 2003, each already legalized [[same-sex marriage]] in eight out of ten [[Provinces and territories of Canada|provinces]] and one of three territories, whose residents comprised about 90% of [[Canada]]'s population. Before passage of the Act, more than 3,000 same-sex couples had already married in these areas.<ref>{{cite web |url=http://www.365gay.com/newscon05/06/062805CanMarr.htm |title=Canadian Commons Passes Gay Marriage Bill}}</ref> Most legal benefits commonly associated with [[marriage]] had been extended to cohabiting same-sex couples since 1999. The [[Civil Marriage Act]] was introduced by [[Paul Martin|Paul Martin's]] [[Liberal Party of Canada|Liberal]] government in the [[Canadian House of Commons]] on [[February 1]], [[2005]] as Bill C-38. It was passed by the House of Commons on [[June 28]], [[2005]], by the [[Canadian Senate|Senate]] on [[July 19]], [[2005]], and it received [[Royal Assent]] the following day. On [[December 7]], [[2006]], the House of Commons effectively reaffirmed the legislation by a vote of 175 to 123, defeating a Conservative motion to examine the matter again. This was the third vote supporting same-sex marriage taken by three Parliaments under three Prime Ministers in three different years. ==Same-sex marriage by province== Same-sex marriage became legal in the provinces and territories as of the following dates: *[[12 June]] [[2003]]: [[Same-sex marriage in Ontario|Ontario]] *[[8 July]] [[2003]]: [[Same-sex marriage in British Columbia|British Columbia]] *[[16 March]] [[2004]]: [[Same-sex marriage in Quebec|Quebec]] *[[14 July]] [[2004]]: [[Same-sex marriage in Yukon|Yukon]] territory *[[16 September]] [[2004]]: [[Same-sex marriage in Manitoba|Manitoba]] *[[24 September]] [[2004]]: [[Same-sex marriage in Nova Scotia|Nova Scotia]] *[[5 November]] [[2004]]: [[Same-sex marriage in Saskatchewan|Saskatchewan]] *[[21 December]] [[2004]]: [[Same-sex marriage in Newfoundland and Labrador|Newfoundland and Labrador]] *[[23 June]] [[2005]]: [[Same-sex marriage in New Brunswick|New Brunswick]] *[[20 July]] [[2005]] (Civil Marriage Act): [[Same-sex marriage in Alberta|Alberta]], [[Same-sex marriage in Prince Edward Island|Prince Edward Island]], [[Same-sex marriage in Nunavut|Nunavut]] territory, and the [[Same-sex marriage in the Northwest Territories|Northwest Territories]] ==Overview== Same-sex marriage was originally legalized as a result of court cases in which provincial or territorial justices ruled existing bans on same-sex marriage unconstitutional. Thereafter, many gay and lesbian couples obtained marriage licences in those provinces; like opposite-sex couples, they did not need to be residents of any of those provinces in order to marry there. [[Image:Map of Canada, same-sex marriage, pre July 2005.svg|240px|thumb|left|Provinces and territories with same-sex marriage before its nationwide legalization on [[July 20]], [[2005]] {{legend|#aec78f|Permitted}} {{legend|#d1d7b8|Did not permit}}]] The status of marriages for same-sex couples created in these jurisdictions existed 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&mdash;this interpretation was upheld by a [[December 9]], [[2004]] opinion of the [[Supreme Court of Canada]] (''[[Re Same-Sex Marriage]]''). Until [[July 20]], [[2005]], the federal government had not yet passed a law redefining marriage to conform to recent provincial court decisions. Until the passage of Bill C-38, the previous definition of marriage was binding in the four jurisdictions where courts had not yet ruled it unconstitutional, but void in the nine jurisdictions where it had been successfully challenged. Given the Supreme Court ruling, the role of precedent in Canadian law, and the overall legal climate, it would have been highly unusual for any challenges in the remaining four jurisdictions not to result in the legalization of marriage between same-sex individuals there as well. Indeed, federal lawyers had ceased to contest such cases<ref name="Nova Scotia" /> and only the [[Alberta]] provincial government remained officially opposed,<ref>{{cite web |url=http://writ.news.findlaw.com/grossman/20041214.html |title=The Canadian Supreme Court's Same-Sex Marriage Decision: An Interesting Contrast to the United States's Law |publisher=Findlaw |accessdate=2008-07-11}}</ref> threatening to invoke the [[Section Thirty-three of the Canadian Charter of Rights and Freedoms|notwithstanding clause]] of the [[Canadian Charter of Rights and Freedoms]],<ref>{{cite web |url=http://www.cbc.ca/news/background/klein-ralph/ |title=CBC News In Depth: Ralph Klein |accessdate=2008-07-11}}</ref> which many law experts argued would not have actually worked.<ref>{{cite web |url=http://www.parl.gc.ca/information/library/PRBpubs/bp194-e.htm#Section |title=Notwithstanding Clause of the Charter - Section 33 Invocation |publisher=Parliament of Canada |accessdate=2008-07-11}}</ref> [[Ralph Klein]], former premier of Alberta, later recanted, and Alberta now allows same-sex marriage providing no government officials or marriage commissioners who oppose same-sex marriage are forced to perform them. Bill C-38, introduced on [[February 1]], [[2005]], by [[Minister of Justice (Canada)|Justice Minister]] [[Irwin Cotler]], legalized across Canada marriage between persons of the same sex. Although supported by the Martin government, it was subjected to a [[free vote]] by [[backbencher|backbench]] MPs in the House of Commons. Defeat of the bill in Parliament would have continued the status quo, and incremental legalization on a jurisdiction-by-jurisdiction basis would likely have continued via court challenges. This trend could have been reversed only through Parliament passing a new law that explicitly restricted marriage to opposite sex couples [[Section Thirty-three of the Canadian Charter of Rights and Freedoms|notwithstanding]] the protection of equality rights afforded by the [[Canadian Charter of Rights and Freedoms]], or by amending the Canadian [[Constitution of Canada|constitution]] by inserting the clause "marriage is defined as being between a man and a woman", as was recommended by several conservative groups and politicians.<ref>{{cite web |url=http://www.ccrl.ca/index.php?id=205 |title=Majority support keeping traditional definition of marriage |publisher=Catholic Civil Rights League |accessdate=2008-07-11}}</ref> Given the composition of the House of Commons at the time, the passage of such a measure would have been very unlikely. Alberta Premier [[Ralph Klein]] proposed putting the question to the public at large via a national referendum,<ref>{{cite web |url=http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/1102683323055_177/?hub=Canada |title=Klein urges same-sex marriage referendum |date=2004-12-11 |accessdate=2008-06-27}}</ref> but this was rejected by all four party leaders.<ref>{{cite web |url=http://www.theglobeandmail.com/servlet/story/RTGAM.20041213.wsames1213/BNStory/National/ |title=Liberal MP still pushing gay marriage referendum}}</ref> A draft of what would become Bill C-38 was released on [[July 17]], [[2003]], by the Minister of Justice, [[Martin Cauchon]]. Prior to its introduction, he submitted the bill as a [[Reference question|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 union]]s 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. ==History== {{GR-C}} ===Court rulings=== ====Background==== *[http://www.egale.ca/index.asp?menu=22 EGALE: A chronological listing of court documents] In 1999, same-sex couples in Canada were entitled to receive many of the financial and legal benefits commonly associated with 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 full legal marriage. Most laws which affect couples are within provincial rather than federal jurisdiction. As a result, rights varied somewhat from province to province. In 2002 and 2003, court decisions in the federal courts of three provinces then required the federal government to implement full same-sex marriage within the next two years: *in [[Ontario]]: ''[[Halpern et. al. v. Canada]]'' (Ontario Superior Court, [[July 12]], [[2002]]) *in [[Quebec]]: ''Hendricks v. Quebec'' (Quebec Superior Court, [[September 6]], [[2002]]) **[http://www.canlii.org/qc/jug/qccs/2002/2002qccs14544.html Text of ruling (in French)] * in [[British Columbia]]: ''Barbeau v. British Columbia'' 2003 BCCA 251 (Court of Appeal for BC, [[May 1]], [[2003]]) **[http://www.courts.gov.bc.ca/../../../../jdb-txt/ca/03/02/2003BCCA0251.htm Text of the ruling] 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. ====Ontario decision==== ''Main article: [[Same-sex marriage in Ontario]]'' In 2003, the couples in ''[[Halpern v. Canada]]'' appealed the decision, requesting that the decision take effect immediately instead of after a delay. On [[10 June]] [[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. The first homosexual couple married after the decision were [[The Michaels|Michael Leshner and Michael Stark]]. 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.<ref name="Halpern">{{cite web |url=http://www.canlii.org/en/on/onscdc/doc/2002/2002canlii42749/2002canlii42749.html |title=Text of decision in ''Halpern v. Canada''}}</ref> The court also ruled that two couples who had previously had a wedding ceremony in the [[Metropolitan Community Church of Toronto]] using an ancient common-law procedure called the reading of the [[Banns of marriage|bann]]s would be considered legally married.<ref name="Halpern" /> 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]].<ref>{{cite web |url=http://www.theglobeandmail.com/servlet/story/RTGAM.20040913.wdivor0913/BNStory/National/ |title=Ontario court approves first same-sex divorce |publisher=Globe and Mail |date=2004-09-13 |accessdate=2008-06-27}}</ref> ====British Columbia 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 [[8 July]] [[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".<ref>{{cite web |url=http://www.canlii.org/bc/cas/bcca/2003/2003bca406.html |title=Text of Barbeau v. British Columbia (A.G.), 2003 BCCA 406 |date=2003-07-08}}</ref> A few hours after the announcement, Antony Porcino and Tom Graff became the first two men to be legally wed in British Columbia.<ref>{{cite web |url=http://www.globeandmail.com/servlet/story/RTGAM.20030708.wmarr0708/BNStory/National/ |title=B.C. court ruling allows same-sex marriages |date=2003-07-08 |accessdate=2008-07-11 |publisher=The Globe and Mail}}</ref> ====Quebec decision==== {{main|Same-sex marriage in Quebec}} [[Image:Hendricks-leboeuf2.jpg|right|thumb|Michael Hendricks and René Leboeuf, the first same-sex couple to legally marry in Quebec]] 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.<ref>{{cite web |url=http://www.samesexmarriage.ca/legal/quebec_case/QuebecSept62002.pdf |title=Text of the decision in ''Hendricks and Leboeuf v. Quebec''}}</ref> 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.<ref>{{cite web |url=http://archives.xtra.ca/Story.aspx?s=3128172 |title=Quebec legalizes gay marriage |date=2004-08-04}}</ref> Given the populations of Ontario, British Columbia, and Quebec, more than two-thirds of Canada's population lived in provinces where same-sex marriage had been legalized after the Quebec decision. ====Yukon decision==== ''Main article: [[Same-sex marriage in Yukon]]'' On [[July 14]], [[2004]], in ''Dunbar & Edge v. Yukon (Government of) & Canada (A.G.)'', 2004 YKSC 54, the Yukon Territorial Supreme Court issued another similar ruling with immediate effect.<ref>{{cite web |url=http://www.canlii.org/yk/cas/yksc/2004/2004yksc54.html |title=Text of''Dunbar & Edge v. Yukon & Canada'' decision}}</ref> Rather than reproducing the Charter equality arguments used by the other courts, the Court ruled that since the provincial courts of appeal had ruled that the heterosexual definition of marriage was unconstitutional, it was unconstitutional across Canada. The position was strengthened by the Attorney General's refusal to appeal those rulings. It further ruled that 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. On [[August 16]], [[2004]], federal justice minister Irwin Cotler indicated that federal government would no longer resist court cases to implement same-sex marriage in the provinces or territories.<ref>{{cite web |url=http://www.qrd.org/qrd/media/radio/thiswayout/summary/newswrap/2004/N856-08.23.2004 |title=NewsWrap for the week ending August 21, 2004 (As broadcast on ''This Way Out'' program #856) |publisher=Queer Resources Directory |date=2004-08-23 |accessdate=2008-07-11}}</ref> ====Manitoba decision==== ''Main article: [[Same-sex marriage in Manitoba]]'' {{see also|Common-law relationships in Manitoba}} On [[September 16]], [[2004]], Justice Douglas Yard of the Manitoba Court of Queen's Bench declared the then-current definition of marriage unconstitutional. The judge said that his decision had been influenced by the previous decisions in B.C., Ontario, and Quebec.<ref>{{cite web |url=http://www.cbc.ca/story/canada/national/2004/09/16/manitobasamesex040916.html |title=Manitoba recognizes same-sex marriages |date=2004-09-16 |accessdate=2008-06-27}}</ref> This decision followed 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.<ref>{{cite web |url=http://archives.cbc.ca/politics/rights_freedoms/clips/3229/ |title=Winnipeg couple marries |publisher=CBC Archive |date=1974-02-21}}</ref> ====Nova Scotia decision==== ''Main article: [[Same-sex marriage in Nova Scotia]]'' In August 2004, three couples in [[Nova Scotia]] brought suit in ''Boutilier v. Canada (A.G) and Nova Scotia (A.G)'' against the provincial government requesting that it issue same-sex marriage licences. On [[September 24]], [[2004]], Justice Heather Robertson of the [[Nova Scotia Supreme Court]] ruled the then-current law unconstitutional. Neither the federal nor the provincial governments opposed the ruling.<ref name="Nova Scotia">{{cite web |title=Nova Scotia legalizes same-sex marriages |url=http://www.cbc.ca/story/canada/national/2004/09/24/samesex_ns040924.html |publisher=CBC |date=2004-09-24 |accessdate=2008-06-27}}</ref> ====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.<ref name="Sask case">{{cite web |url=http://www.cbc.ca/canada/story/2004/11/05/same-sex_marriage_041105.html |title=Sask. court approves same-sex marriage |publisher=CBC News}}</ref> On [[5 November]] [[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.<ref name="Sask case" /> ====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. ====New Brunswick decision==== ''Main article: [[Same-sex marriage in New Brunswick]]'' Two same-sex couples brought suit in April 2005 to request an order requiring the government of New Brunswick to issue same-sex marriage licences. This was granted in June 2005. The Progressive Conservative premier of New Brunswick, [[Bernard Lord]], who personally opposed same-sex marriage, pledged to follow a directive to provide for same-sex marriages from the courts or from Parliament.<ref>{{cite web |url=http://www.cbc.ca/story/canada/national/2005/06/23/nb-marriage-050623.html |title=New Brunswick ruling clears way for gay marriage |date=2005-06-23 |accessdate=2008-07-11}}</ref> ====Proceedings in the Northwest Territories==== ''Main article: [[Same-sex marriage in the Northwest Territories]]'' On [[May 20]], [[2005]], a gay male couple with a daughter brought suit in the Northwest Territories for the right to marry. The territorial justice minister, [[Charles Dent]], had previously said that the government would not contest such a lawsuit. The case was to be heard on [[May 27]] but ended when the federal government legalized same-sex marriage. ===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. In 1999, the House of Commons overwhelmingly passed a resolution to re-affirm the definition of marriage as "the union of one man and one woman to the exclusion of all others".<ref>{{cite web |url=http://www.mapleleafweb.com/features/same-sex-marriage-canada |title=Same-sex Marriage in Canada |date=2007-01-01 |accessdate=2008-06-27}}</ref> The following year this definition of marriage was included in the revised Bill C-23, the Modernization of Benefits and Obligations Act 2000, which continued to bar same-sex couples from full marriage rights.<ref>{{cite web |url=http://www.canlii.org/ca/as/2000/c12/part3274.html |title=Modernization of Benefits Act, 2000 (Section 1.1)}}</ref> 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, it voted to recommend that the federal government not appeal the ruling. *[http://www.parl.gc.ca/InfoCom/CommitteeMinute.asp?Language=E&Parliament=9&Joint=0&CommitteeID=287 Proceedings of the [[Canadian House of Commons Standing Committee on Justice and Human Rights|Standing Committee on 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]], then Prime Minister Chrétien announced that the government would not appeal the Ontario ruling, and that 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 [[17 July]]. 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 [[16 September]] [[2003]], a motion was brought to Parliament by the [[Canadian Alliance]] (now the Conservative Party) 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]] (who later became Prime Minister) 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 legalizing same-sex marriage in 1999.<ref name="2003 vote">{{cite web |url=http://www.lifesitenews.com/ldn/2003/sep/03091601.html |title=Alliance Motion to Reaffirm Traditional Definition of Marriage Defeated 137-132 |date=2003-09-16 |accessdate=2008-06-27}}</ref> It was speculated that they had ignored the vote on the wishes of Chrétien, who did not want to have the symbolic importance of the moment undermined by his own party.<ref name="2003 vote" /> In the end, the motion was narrowly rejected by a vote of 137-132.<ref>{{cite web |url=http://www.cbc.ca/news/background/samesexrights/mpvotes.html |title=How the MPs voted |date=2003-09-17 |accessdate=2008-06-27}}</ref> === Supreme Court ''Reference re Same-Sex Marriage'' === {{main|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 question|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?'' Prime Minister [[Paul Martin]] later added a fourth in January 2004<ref>{{cite news |url=http://www.religioustolerance.org/hom_marb9.htm |title=Same-sex Marriage (SSM) in Canada - Past Predictions of the Fate of SSM Legislation}}</ref>: :''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.<ref>{{cite web |url=http://www.samesexmarriage.ca/legal/reference.htm |title=Martin's machinations move marriage Supreme Court Reference to Oct. 2004 |date=2004-02-20}}</ref> 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 [[William Ian Corneil Binnie|Ian Binnie]] said it 'may not fulfill any useful purpose' to examine traditional marriage all over again, 'given the policy decision of the government'".<ref>{{cite web |url=http://csc.lexum.umontreal.ca/en/2004/2004scc79/2004scc79.html |title=Text of the decision in ''Reference re Same-Sex Marriage''}}</ref> 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 given freedom of religion in the Charter of Rights, and wording of provincial human rights codes, it was highly unlikely that religious institutions could be compelled to perform same-sex marriages, though because solemnization of marriage is a matter for provincial governments, the proposed Bill could not actually guarantee such a protection. ===Debate prior to C-38's introduction=== On [[December 9]], [[2004]], Prime Minister Paul Martin indicated that the federal government would 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.<ref>[http://www.cbc.ca/story/canada/national/2004/12/09/martin-samesex041209.html Liberals to introduce same-sex marriage bill in January], ''CBC News'', 10 December 2004</ref> The Parliamentary bill caused rifts in the House of Commons, especially among the governing [[Liberal Party of Canada|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 of Canada|Conservative Party]] was almost unanimously against the bill; the [[New Democratic Party]] and [[Bloc Québécois]] was almost unanimously in favour of it. In 2000, [[Alberta]] had amended its Marriage Act[http://www.canlii.org/ab/laws/sta/m-5/20060115/whole.html] to define marriage as being between a man and a woman. The law included a [[Section Thirty-three of the Canadian Charter of Rights and Freedoms|notwithstanding clause]] in an attempt to protect the amendment from being invalidated under the Charter. However, the amendment was invalid since, under the [[Constitution of Canada|Canadian constitution]], the definition of marriage is a federal right. To achieve his goal, Klein could have attempted to pass legislation explicitly discriminating against same-sex marriages and then used the notwithstanding clause to defend it against legal challenges. Complicating matters, Conservative Party leader [[Stephen Harper]] indicated that he would be willing to re-examine the legislation, if the Conservative Party achieved a majority in a general election. Paul Martin had stated that he would only invoke the notwithstanding clause to reconcile a potential conflict with [[freedom of religion]]. However in the ''[[Re: Same-Sex Marriage|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. Following the court decision on [[December 9]], Premier Klein suggested that a national [[referendum]] be held on same-sex marriage, a measure Prime Minister Martin rejected.<ref>{{cite web |url=http://www.cbc.ca/story/canada/national/2004/12/12/marriage-referendum041212.html |title=Ottawa won't have referendum on same-sex marriage |publisher=CBC |date=2004-12-12 |accessdate=2008-06-27}}</ref> On [[14 December]], federal Justice Minister Cotler attempted to make a concession to those opposed to same-sex marriage by indicating that the bill would allow civic officials to refuse to perform same-sex marriages; however, this was beyond the reach of federal legislation because civic officials who perform marriages are regulated by the provinces, not by the federal government. Saskatchewan terminated the employment of one civic official who declined to perform same-sex marriage ceremonies on religious grounds. ===Legislative progress of the Civil Marriage Act=== ''Main article: [[Civil Marriage Act]]'' Bill C-38, the Civil Marriage Act, was introduced to Parliament for its [[first reading]] in the House on [[February 1]], [[2005]]. Prime Minister Martin launched the debate on [[February 16]]. The bill passed [[second reading]] on [[May 4]] and [[third reading]] on [[June 28]], with votes of 164-137 and 158-133, respectively. It then moved to the [[Canadian Senate|Senate]], and received its first reading on [[June 29]]. Debate was launched on [[July 4]], and a Liberal [[cloture|closure]] motion limited debate on the bill to only four hours. Second reading and committing the bill occurred on [[July 6]], with a vote of 43-12. The Senate passed Bill C-38 on third reading by a margin of 47 to 21 on [[July 19]], [[2005]]. It received Royal Assent, at the hand of the Rt. Hon. [[Beverley McLachlin]] (in her capacity as the [[Deputy Governor General of Canada|Deputy Governor General]]), on [[July 20]], [[2005]].<ref>{{cite web |url=http://www.parl.gc.ca/legisinfo/index.asp?Lang=E&Chamber=N&StartList=A&EndList=Z&Session=13&Type=0&Scope=I&query=4381&List=stat |title=Progress of C-38 through Parliament}}</ref> ===Same-sex marriage in the 39th Parliament=== {{main|Members of the 39th Canadian Parliament and same-sex marriage}} The [[Conservative Party of Canada|Conservative Party]], led by [[Stephen Harper]], won a [[minority government]] in the [[Canadian federal election, 2006|2006 federal election]]. Harper had campaigned on the promise of holding a [[Conscience vote|free vote]] on a motion regarding restoring the traditional definition of marriage. If the motion were to pass, the government would draft a bill to restore the "traditional" definition of marriage. This bill would then have to be passed by the House of Commons and the [[Liberal Party of Canada|Liberal]]-dominated [[Canadian Senate|Senate]]. The Senate traditionally does not vote against bills that have been approved by the House of Commons. A news report from CTV on [[May 31]], [[2006]], showed that a growing number of Conservatives were wary about re-opening the debate over same-sex marriage. One cabinet minister stated he just wanted the issue "to go away", while others including Chuck Strahl and Bill Casey were undecided, instead of directly opposed.<ref name="wary Tories">{{cite web |url=http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20060531/conservatives_samesex_060531?s_name=&no_ads= |title=Many Tories wary about 2nd gay-marriage vote |date=2006-05-31 |accessdate=2008-06-27}}</ref> Peter MacKay noted that not a single constituent had approached him on the issue, and Tory Cabinet Minister Conservative MP Loyola Hearn was against re-opening the debate.<ref name="wary Tories" /> On [[June 2]], [[2006]], Prime Minister Stephen Harper was asked by a reporter about the issue while he was in Montreal. He responded that the vote on whether or not to open up debate over same-sex marriage would take place sometime in the fall.<ref>{{cite web |url=http://itam.novopress.info/?p=242 |title=Harper promises marriage vote this fall |date=2006-06-09 |accessdate=2008-06-27}}</ref> On [[December 6]], [[2006]], the government brought in a motion asking if the issue of same-sex marriage should be re-opened to support the traditional definition of marriage. This motion was defeated the next day in a vote of 175 (nays) to 123 (yeas). Prime Minister [[Stephen Harper]] afterwards told reporters that he "[didn't] see reopening this question in the future".<ref>{{cite web |url=http://www.theglobeandmail.com/servlet/story/RTGAM.20061208.wxsamesex08/BNStory/National/home |title=Same-sex marriage file closed for good, PM says |date=2006-08-12 |accessdate=2008-06-27}}</ref> ===Statistics on same-sex marriage=== From June 2003 (date of the first legal same-sex marriages in Ontario) to October 2006, there were 12,438 same-sex marriages contracted in Canada.<ref>{{cite web |url=http://www.equal-marriage.ca/resource.php?id=532 |title=Over 12,000 Married Same-sex Couples}}</ref> {| class="wikitable" |- ! Province ! Date of legalization ! Number of same-sex marriages |- ! Ontario | [[June 10]], [[2003]] | 6,524 |- ! British Columbia | [[July 8]], [[2003]] | 3,927 |- ! Quebec | [[March 19]], [[2004]] | 947 |- ! Alberta | [[July 20]], [[2005]] | 409 |- ! Nova Scotia | [[September 24]], [[2004]] | 273 |- ! Manitoba | [[September 16]], [[2004]] | 193 |- ! Saskatchewan | [[November 5]], [[2004]] | 83 |- ! New Brunswick | [[June 23]], [[2005]] | 44 |- ! Newfoundland and Labrador | [[December 21]], [[2004]] | 14 |- ! Yukon | [[July 14]], [[2004]] | 13 |- ! Prince Edward Island | [[July 20]], [[2005]] | 8 |- ! Northwest Territories | [[July 20]], [[2005]] | 2 |- ! Nunavut | [[July 20]], [[2005]] | 1 |} == Other same-sex partner benefits in Canada == ===Other kinds of partnership=== As mentioned above, Canadian cohabiting same-sex couples are entitled to many of the same legal and financial benefits as married opposite-sex couples. In [[1999]], after the court case ''[[M. v. H.]]'', the [[Supreme Court of Canada]] declared that [[same-sex marriage|same-sex partners]] must also be extended the rights and benefits of common-law relationships. {{see|Common-law marriage#Canada}} The province of [[Quebec]] also offers [[civil union]]s to same-sex partners. [[Nova Scotia]]'s [[Domestic partnership]]s offer similar benefits. Legislative changes in 2001-2004 extended the benefits of [[common-law relationships in Manitoba]] to same-sex couples as well as those of different sex. In 2003, Alberta passed a law that recognized [[Adult interdependent relationship in Alberta|Adult Interdependent Relationships]]. They are similar to common-law marriage, but provide fewer benefits than regular marriage and are available to any adults who are in a "relation of interdependence." ===Recognition in other provinces and territories=== {{main|Same-sex marriage in Alberta}} The legal status of same-sex marriages in provinces and territories that did not perform them was uncertain prior to the passage of the Civil Marriage Act. One of the couples who brought suit in Nova Scotia did so in order that their Ontario marriage would be recognized. The [[Premier of Alberta]], [[Ralph Klein]], wanted to prevent same-sex marriages from being performed or recognized in [[Alberta]], but eventually admitted that the province's chances of doing so were slim to none, and said Alberta would obey the legislation.<ref>{{cite web |url=http://www.theglobeandmail.com/servlet/story/RTGAM.20050712.wgaymarriage0712/BNStory/National/ |title=Alberta to recognize same-sex marriage |publisher=The Globe and Mail}}</ref> By contrast, the other remaining province without SSM, [[Prince Edward Island]], announced that it would voluntarily bring its laws into compliance with the federal legislation. ===Immigration=== The Department of [[Citizenship and Immigration Canada]] (CIC) acknowledges same-sex marriages contracted in Canada 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]], provided they meet various requirements, including proof of legitimacy, and co-habitation for at least one year. After the enactment of the [[Civil Marriage Act]], CIC adopted an interim immigration policy which did not recognize same-sex marriages which took place outside Canada.<!--Confirmed by inspection of CIC's web site October 2005--> For example, a Canadian citizen, legally married in [[The Netherlands]] to his same-sex Dutch partner, might not sponsor his Dutch partner for immigration as a spouse, despite the fact that both Dutch law and Canadian law made no distinction between opposite-sex and same-sex civil marriages, and despite the fact that CIC did recognise a Dutch opposite-sex marriage. On [[December 12]], [[2006]], [[New Democratic Party]] [[Member of Parliament|MP]] [[Bill Siksay]] introduced a motion in the [[Canadian House of Commons|House of Commons]] Standing Committee on Citizenship and Immigration calling on the CIC to immediately rescind the interim policy and "recognize legal marriages of gay and lesbian couples performed in jurisdictions outside Canada for purposes of immigration in exactly the same way as the legal marriages of heterosexual couples are recognized"; the committee voted to recommend that the government do this.[http://www.samesexmarriage.ca/advocacy/sik131206.htm] In late January 2007, Citizenship and Immigration Minister [[Diane Finley]] informed the committee that this would be done.[http://www.ndp.ca/page/4816] In February 2007, the CIC website was updated to reflect the fact that the policy has been updated.<ref>{{cite web |url=http://www.cic.gc.ca/english/immigrate/sponsor/spouse-apply-who.asp |title=Sponsoring your same-sex partner as a spouse}}</ref> ===Military=== Since September 2003, military [[chaplain]]s have been allowed to bless same-sex unions and to perform these ceremonies on a military base.<ref>{{cite web |url=http://www.forces.gc.ca/chapgen/engraph/same_sex_marriage_e.asp?cat=7 |title=Interfaith Committee on Canadian Military Chaplaincy Interim Guidelines for Canadian Forces Chaplains}}</ref> ===Survivor benefits=== On [[December 19]], [[2003]], an Ontario court ruled that survivor benefits for Canadians whose same-sex partners died should be retroactive to April 1985, the date the Charter of Rights came into effect. The federal government appealed. On [[March 1]], [[2007]], the [[Supreme Court of Canada]] ruled that the federal government must pay [[Canada Pension Plan]] benefits to surviving same-sex spouses.<ref>{{cite web |url=http://scc.lexum.umontreal.ca/en/2007/2007scc10/2007scc10.html |title=Text of decision in ''Hislop v. Canada''}}</ref> Initial news reports indicated that the court limited retroactive benefits to only 12 months' worth, but in fact, some survivors may be entitled to benefits dating back to 2000.<ref>{{cite web |url=http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20070228/survivor_samesex_ruling_070301/20070301?hub=Canada |title=Top court limits retroactive survivor benefits}}</ref><ref>{{cite web |url=http://www.smith-hughes.com/CPP-class-action.htm |title=Smith & Hughes working on Same Sex Benefits Case}}</ref> == Same-sex divorce in Canada == 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 of Justice]] ruled that the definition of "spouse" in the Divorce Act was unconstitutional.<ref>{{cite web |url=http://www.cbc.ca/story/canada/national/2004/07/21/samesex_divorce040621.html |title=Lesbian couple seeking country's first same-sex divorce |date=2004-07-21 |accessdate=2008-07-11}}</ref> In June 2005, a lesbian couple in [[British Columbia]], whose names cannot be released, obtained a similar ruling.<ref>{{cite web |title=B.C.'s first gay divorce granted |url=http://www.cbc.ca/canada/british-columbia/story/2005/06/15/bc_gay-divorce20050615.html}}</ref> [[Bloc Québécois]] MP [[Richard Marceau]], who has advocated in favour of same-sex marriage, requested that Justice Minister Irwin Cotler add a provision to the same-sex marriage bill altering the Divorce Act to permit same-sex divorce. Section 8 of the Civil Marriage Act amended the Divorce Act to permit same-sex divorce. ==Church and State== Based on the 2001 census, three main [[Abrahamic]] religions ([[Judaism]], [[Islam]], and [[Christianity]]) represent 80% of the Canadian population.<ref name=statcan>Statistics Canada website, [http://www40.statcan.ca/l01/cst01/demo30b.htm Population by religion, by province and territory (2001 Census)], URL accessed May 14, 2006</ref> All three have sacred texts that have sections interpreted to declare sexual relations between people of the same sex as forbidden and sinful. For example, the Koran (7:80-81, 26:165) and the Bible (Leviticus 18:22, Romans 1:26-27, I Timothy 1:9-10, etc.) are frequently interpreted to explicitly forbid [[homosexuality]] (see related article, ''[[Homosexuality and religion]]''). In July 2003, the hierarchy of the [[Catholicism|Catholic Church]] in Canada protested the Chrétien government's plans to include same-sex couples in [[civil marriage]]. This is significant because Catholicism has a larger number of adherents in Canada than any other religion or denomination, with 43.6% of the population identifying themselves as Catholic.<ref>{{cite web |author=Statistics Canada |authorlink=Statistics Canada |publisher= Statistics Canada |url=http://www40.statcan.ca/l01/cst01/demo30a.htm |title=Population by religion, by provinces, and territories|date=[[2005-01-25]]|accessdate=2006-05-14}}</ref> The church criticisms were accompanied by Vatican claims that Catholic politicians should vote according to their personal beliefs rather than the policy of the government. 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 (bishop)|Frederick Henry]], in a pastoral letter urged Catholics to fight against the legalization same-sex marriage, calling homosexuality "an evil act." [http://www.cbc.ca/story/canada/national/2005/01/16/calgary-bishop050116.html] Bishop Henry's letter also seemed to urge the outlawing of homosexual acts, saying "Since homosexuality, adultery, prostitution and pornography undermine the foundations of the family, the basis of society, then the State must use its coercive power to proscribe or curtail them in the interests of the common good."<ref name='rt110305'>{{cite news | first= | last= | coauthors= | title=Complaints before the Alberta Human Rights Commission concerning Bishop Henry's pastoral letter | date=2005-11-03 | publisher=Ontario Consultants on Religious Tolerance | url =http://www.religioustolerance.org/hom_marb45.htm | work =religioustolerance.org | pages = | accessdate = 2007-07-30 | language = }}</ref> Two human rights complaints were filed against Henry soon afterwards under the Alberta Human Rights act, one of which was dropped at the conciliation stage. The largest [[Protestant]] denomination in the country, the [[United Church of Canada]], offers church weddings to same-sex couples and is in favour of legalizing same-sex marriages, testifying to this effect during the cross-country Justice Committee hearings. [[Unitarian Universalist]] congregations also solemnize same-sex marriages, as do the [[Religious Society of Friends]] (Quakers) and the [[Metropolitan Community Church]]. Some progressive Jewish congregations and some within the [[Anglican Church of Canada|Anglican Church]] have also supported same-sex marriage. The [[Hutterite]] Brethren spoke out against same-sex marriage in a letter written to Prime Minister Martin in February 2005.[http://www.cbc.ca/story/canada/national/2005/02/17/hutterite-050217.html]. The sect has historically not involved themselves with politics. The [[Humanist Association of Canada]], which endorses a non-theistic, non-religious ethical philosophy to life and full separation of church and state, has been supportive of same-sex marriage. [http://whs.humanists.ca/ Local affiliate groups] of The Humanist Association of Canada offer officiancy (marriage commissioner) services across Canada. ==See also== * [[Gay rights in Canada]] * [[Timeline of LGBT history]] **[[2005 in gay rights]] * [[Marriage in Canada]] * [[Members of the 38th Canadian Parliament and same-sex marriage]] * [[Members of the 39th Canadian Parliament and same-sex marriage]] * [[Religion in Canada]] ==References== {{reflist}} == Bibliography == *{{cite book | last = Larocque | first = Sylvain | authorlink = Sylvain Larocque | year = 2006 | title = [[Gay Marriage|Gay Marriage: The Story of a Canadian Social Revolution]] | publisher = James Lorimer & Company | location = Toronto | id = ISBN 1-55028-927-6}} ==External links== {{wikinews|Canadian PM vows to push ahead with same-sex marriage bill}} {{wikinews|Canadian House of Commons approves same-sex marriage}} *[http://www.egale.ca/ Egale Canada Inc.] *[http://www.equal-marriage.ca/ Canadians for Equal Marriage] *[http://www.samesexmarriage.ca/ Same-Sex Marriage Canada] *[http://www.marriagevote.ca/ Marriage Vote Canada] *[http://www.defendmarriage.ca/ Defend Marriage Canada] *[http://www.marriageinstitute.ca/images/cere.pdf Redefining Marriage? A Case for Caution] Brief to the Parliamentary Justice Committee *[http://www.cbc.ca/news/background/samesexrights/index.html CBC News Indepth: Same-Sex Marriage in Canada] *[http://www.cbc.ca/news/background/samesexrights/gay_rights_poll2003b.pdf Full text of NFO CF Group survey (PDF)] *[http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/1096026665122_19/?hub=TopStories CTV news item] *[http://www.cbc.ca/story/canada/national/2004/12/09/scoc-gaymarriage041209.html Supreme Court OK's same-sex marriage] *[http://www.cflln.ca/ Canadian Family Law Network] *[http://www.imfcanada.org/ Institute of Marriage and Family Canada] {{Same-sex marriage}} [[Category:Same-sex marriage in Canada| ]] [[de:Gleichgeschlechtliche Ehe in Kanada]] [[es:Matrimonio entre personas del mismo sexo en Canadá]] [[fr:Mariage homosexuel au Canada]] [[nl:Homohuwelijk in Canada]] [[pl:Małżeństwo osób tej samej płci w Kanadzie]] [[ro:Căsătorii între persoane de acelaşi sex în Canada]] [[zh:加拿大同性婚姻]]