Same Sex Marriage - Backgrounder

The institution of marriage has always held a central role in Canada. Many believe that because of its role in creating and nurturing families, it is the backbone of our society. Until recently, homosexual couples were excluded from this important institution. Starting in 2002, three historic court decisions dramatically changed the legal definition of marriage.

Pierre Trudeau, as Justice Minister in 1967, said “there is no place for the state in the bedrooms of the nation”. He said that what is done in private between adults does not concern the criminal law, and in 1969 a set of extensive revisions removed the prohibition on homosexuality from the Criminal Code.

As a result, Everett Klippert was released from prison in 1971, where he spent four years after admitting that he had been having sex with men for twenty-four years and was unlikely to change. He was deemed a “dangerous sexual offender” in a decision that was upheld by the Supreme Court of Canada.

The movement for gay rights has achieved a great deal in the four decades since these laws abrogating from the basic rights of homosexuals were abolished in Canadian law.

On February 1, 2005, the Civil Marriage Act was introduced as Bill C-38 in the first session of the 38th Parliament of Canada. It passed in the House of Commons on June 28, 2021 and the Senate on July 19, 2005. The bill then became law when it received Royal Assent on July 20, 2005. Now, not only would the expression of Mr. Klippert’s sexuality be allowed under Canadian law, he would have access to the most significant institution available for two people wishing to make a life commitment to one another: marriage.

The official legislative summary of Bill C-38 is as follows:
This enactment extends the legal capacity for marriage for civil purposes to same-sex couples in order to reflect values of tolerance, respect and equality, consistent with the Canadian Charter of Rights and Freedoms. It also makes consequential amendments to other Acts to ensure equal access for same-sex couples to the civil effects of marriage and divorce.[1]

Looking back, let’s review the history of events that led to Canada becoming the third nation to legalize same-sex marriage, behind the similarly liberal and secular Netherlands and Belgium.

In his second term as Prime Minister, beginning in 1980, Trudeau was largely responsible for bringing the Charter of Rights and Freedoms into force as part of the nation’s constitutional makeup. It was the Charter itself that has been used to develop changes in the law regarding same-sex marriage.

Social and Legal Change
Gay people sought truly equal access to the social institutions enjoyed by heterosexual citizens. The right to marry was seen by many as an integral step in the public acknowledgement of that equality.

Even though many homosexuals may not care to marry, just as many heterosexuals do not, the presence of a choice has an important impact on the way gay people are seen and treated in Canadian society. Further, other minorities stand to benefit from a legal, political and social culture that insists on true substantive equality.

On July 12, 2002, a Canadian court held for the first time that the prohibition of gay couples from marrying is unconstitutional and violates the Charter. On June 10, 2003, that ruling of the Ontario Superior Court of Justice was upheld by the Ontario Court of Appeal, on the basis that the current common law definition of marriage violates equality rights protected by section 15 of the Charter on the basis of sexual orientation. Within hours, the key participants in the case, Michael Leshner and Michael Stark, were married in Toronto.

In a decision released on May 1, 2003, the B.C. Court of Appeal followed the Ontario lead in the decision of Barbeau v. British Columbia (Attorney General) by holding that the common law bar to same-sex marriage violated the appellants’ right to equality under section 15 of the Charter.[2]

Madam Justice Prowse was very careful in her reasons to acknowledge the interests and arguments of all of the concerned parties. The court emphasized that the issue concerned civil marriage only, and that the conclusion would not displace the rights of religious groups to refuse to solemnize same-sex marriages.

An important point from the judgment was that the legal meaning of marriage from the Constitution Act 1867 was not fixed. This meant that the definition of marriage as involving a man and a woman was not entrenched in the constitution.

This finding was in line with the principle in Canadian law that the constitution is a ‘living tree’ that can respond to changes in Canadian society. The result was that Parliament did not have to seek a constitutional amendment to change the definition of marriage.

The court also noted that procreation was no longer the essential objective of marriage constituting a sufficiently pressing and substantial objective that could justify the breach of section 15 under the section 1 analysis. This finding acknowledges new reproductive technologies and evolving notions of family.

In separate concurring reasons, Mr. Justice Mackenzie said the following:
“In my respectful view, the trial judge's reasons fail to give adequate weight to the evolution of societal views with respect to homosexuality. Until relatively recently, homosexual relations were subject to criminal sanctions and the idea of same-sex marriage was not a possibility that could be seriously considered.

Since the de-criminalization of homosexual relationships in Canada in 1969, there has been a steady expansion of the rights of gay, lesbian and bi-sexual persons reflected in human rights legislation and Charter jurisprudence. These developments have substantial public support, although the matter remains controversial. In my view, this evolution cannot be ignored.

Civil marriage should adapt to contemporary notions of marriage as an institution in a society which recognizes the rights of homosexual persons to non-discriminatory treatment.”

The court’s declaration that the common law bar to same-sex marriage was of no force and effect was suspended until July 12, 2004. This was done in order to give the federal government the opportunity to revise the relevant legislation in order to include same-sex couples in the definition of marriage.

Madam Justice Prowse said this was “the only road to true equality for same-sex couples”. That suspension was ultimately lifted on July 8, effectively giving couples the right to marry in B.C. immediately. These developments did not occur uniformly across the nation.

The Alberta government responded by stating that it would pass laws to explicitly ban same-sex marriages. It also said it would use the notwithstanding clause in the Charter to avoid recognizing same-sex marriages if the proposed laws were passed by the federal government. This means that it planned to have laws that deny same-sex marriages “notwithstanding” any breaches of the Charter.

The reality is, however, that the definition of marriage is a federal domain over which Alberta has no legislative control. Legislation On June 17, 2003, Prime Minister Jean Chretien announced that the federal government would not appeal the rulings of the various courts of appeal that had effectively struck down the marriage laws, and stated his intention to legalize same-sex unions.

Draft legislation was proposed to change the definition of marriage from strictly concerning a man and a woman. The legislation would allow religious groups to sanctify marriage as they see fit. Mr. Chretien also announced that he would refer the legislation to the Supreme Court of Canada to ensure its constitutionality.

The reference process allows the government to obtain an opinion from Canada’s highest court on laws that are under consideration, in advance of them being passed. There have been 76 federal references since 1892. Two of the most well known reference decisions are the Manitoba Language Rights Reference from 1984 and Quebec Secession Reference from 1998.

The draft bill, called a ‘Proposal for an Act Respecting Certain Aspects of Legal Capacity for Marriage for Civil Purposes’, contained the following language:

WHEREAS marriage is a fundamental institution in Canadian society and the Parliament of Canada has a responsibility to support that institution because it strengthens commitment in relationships and represents the foundation of family life for many Canadians; WHEREAS, in order to reflect values of tolerance, respect and equality consistent with the Canadian Charter of Rights and Freedoms, access to marriage for civil purposes should be extended to couples of the same sex; AND WHEREAS everyone has the freedom of conscience and religion under the Canadian Charter of Rights and Freedoms and officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

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.

On December 9, 2004, a ruling handed down from the Supreme Court of Canada in Reference Re Same-Sex Marriage responded to the following three questions posed by the government regarding the draft legislation:

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?[3]
4. A fourth question was also added when Paul Martin became Prime Minister: 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? [4]

The Attorney General of Canada, in material filed with the Supreme Court of Canada in support of the draft legislation, said that the opposite sex requirement:

• excludes same-sex couples from the full range of benefits, protections and obligations that are available immediately to other couples who marry,
• denies same-sex couples access to the social institution of marriage and the value and worth of their unions that is bestowed by marriage,
• reinforces inaccurate understandings of the merits, capabilities and worth of lesbian and gay relationships within Canadian society, perpetuating their disadvantage, and
• does not serve a purpose that is sufficiently important to warrant overriding a constitutionally protected right.

Question one was answered in the affirmative with respect to section 1 of the proposed legislation, meaning that the definition of marriage was within the exclusive power of the federal government to decide. The government did not, however, have the exclusive power to legislate with respect to the freedom of officials of religious groups to refuse to perform marriages in violation of their religious beliefs.

Both question two and question three were answered in the affirmative, meaning that the proposal was consistent with the Charter, but also that the freedom of religion guaranteed by section 2(a) protects religious officials from being compelled to marry two persons of the same sex.

The final steps in the passage of the Civil Marriage Act led to a great deal of political controversy, as Canadian Members of Parliament struggled to balance their own opinions, those of their constituents, and the proper interpretation of Charter rights as incontrovertibly established by the judiciary.

Along the way, this issue became as divisive in Canadian law and politics as the separation of Quebec abortion, public health care and the legalization of marijuana. There was much discussion about whether Parliament should have a ‘free vote’, where party members are free to vote according to their own opinion instead of along party lines.

As UBC law professor Margot Young pointed out in a discussion with then Justice Minister Irwin Cotler in 2003, a free vote may be inappropriate on an issue that the government has stated involves a fundamental and universal human right. This would accord with Mr. Martin’s comments that the vote is about the Charter, and that in a nation of minorities you don’t cherry-pick rights.

The reasoning of Professor Young, which was ultimately followed in the policy of NDP Leader Jack Layton, seemed to be that if the government votes strictly according to party lines as a matter of course on laws involving taxes, transportation, education, and other less controversial matters, then party members should also vote uniformly on the most significant human rights issue of its day.

At the end of the day, Liberal cabinet members were expected to support the bill. Backbenchers, on the other hand, were allowed to vote freely. Liberal MP Joe Comuzzi, a long time friend of the Prime Minister, resigned from cabinet just hours before the vote in order to vote against. The NDP party ‘whipped’ its members in favour of the bill, and after Bev Desjarlais opposed the motion she was moved to a lower position in the party. The majority of the Bloc Quebecois voted in favour of the bill, while the Conservatives stood firmly against. The vote ultimately passed by a 158-133 majority.

After being passed by the Senate, the same-sex marriage legislation received royal assent when Chief Justice Beverley McLachlin, acting in her role as deputy governor general, signed it into law on July 20, 2005.

Conservative leader Stephen Harper has said that if his party forms the next government, the issue regarding same-sex marriage will be revisited. He argues that while the Supreme Court of Canada reference said that same-sex marriage is constitutional, it did not say that prohibition was unconstitutional. Yet it is hard to conceive of a law that will deny access to the institution of marriage for some members of society without violating the equality provision of the Charter.

Mr. Harper may use the issue as a platform for gaining political support from likeminded voters, but the Canadian courts have established sound jurisprudence that would appear to ensure access to same-sex marriage for many governments to come. [5]

Footnotes

[1] Bill C-38

[2] 2003 BCCA 251.

[3] [2004] 3 S.C.R. 298, 2004 SCC 79.

[4] The addition of the fourth question was not without controversy. Some say it was intended to delay the question until after the Liberal election campaign. The Toronto Star reported in January 29, 2021 that by adding the fourth question Justice Minister Irwin Cotler “has ensured that the case that had been slated to be heard in April — potentially in the middle of an election campaign — will now be pushed off to the fall, with no ruling until sometime in 2005."

[5] This article was prepared with extensive assistance from the CBC Backgrounder on Same-Sex marriage.