Same-sex marriage in Canada

Passage of the Civil Marriage Act made same-sex marriage legal in the provinces of Alberta and Prince Edward Island and the territories of Nunavut and the Northwest Territories effective July 20, 2005.

[edit] Overview

Gay rights in Canada

Civil Marriage Act
Re Same-Sex Marriage
38th House · 38th Senate
39th House · 39th Senate
Same-sex marriage in Canada
BC AB SK MB ON QC NB PE NS NL YT NT NU
Civil unions in Quebec

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.

Provinces and territories with same-sex marriage before its nationwide legalization on July 20, 2005 Permitted 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—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 and only the Alberta provincial government remained officially opposed, threatening to invoke the notwithstanding clause of the Canadian Charter of Rights and Freedoms, which many law experts argued would not have actually worked. 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 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 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 notwithstanding the protection of equality rights afforded by the Canadian Charter of Rights and Freedoms, or by amending the Canadian 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. 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, but this was rejected by all four party leaders.

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 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.

[edit] History

[edit] Court rulings

[edit] Background

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)
- Text of ruling (in French)
in British Columbia: Barbeau v. British Columbia 2003 BCCA 251 (Court of Appeal for BC, May 1, 2003)
- 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.

[edit] 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 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 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.

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 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. [2]

[edit] 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." A few hours after the announcement, Antony Porcino and Tom Graff became the first two men to be legally wed in British Columbia.

Barbeau v. British Columbia (A.G.) 2003 BCCA 406 (Court of Appeal for BC 8 July 2003) - text of the ruling (canlii.ca)
The Globe and Mail

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.)

[edit] Quebec decision

Main article: Same-sex marriage in Quebec

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. (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.

After the Quebec decision, more than two-thirds of Canada's population lived in provinces where same-sex marriage had been legalized.

Catholic Civil Rights League v. Hendricks (Quebec Court of Appeal, 19 March 2004) - in French
Unofficial English translation, .doc format

[edit] Yukon decision

Main article: Same-sex marriage in Yukon

On the 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, 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 17 July. [3]

Dunbar & Edge v. Yukon & Canada 2004 YKSC 54 (canlii.ca) - text of the ruling.

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.^{[citation needed]}

[edit] 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. [4] 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. (365gay.com)

[edit] 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 then-current law unconstitutional. Neither the federal nor the provincial governments opposed the ruling. (CBC)

[edit] 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 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. (CBC News)

[edit] 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.

[edit] 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, had previously said that his government would not recognize same-sex marriage until required to do so by the courts or by Parliament.

[edit] 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.(CBC North)

[edit] 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 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, it voted to recommend that the federal government not appeal the ruling.

Proceedings of the 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. 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. In the end, the motion was narrowly rejected by a vote of 137-132. See also: How the MPs voted

[edit] Supreme Court Reference re Same-Sex Marriage

Main article: 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 19 December 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 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.

[edit] 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.^[1]

The Parliamentary bill 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 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[5] to define marriage as being between a man and a woman. The law included a notwithstanding clause in an attempt to protect the amendment from being invalidated under the Charter. However, the amendment was invalid since, under the 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. This would probably have been useless as well, for the courts would likely rule that the Alberta government was acting ultra vires, or beyond its jurisdiction. Many political observers saw the Klein statement as mere political posturing.

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 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. (CBC)

On 14 December, federal Justice Minister Cotler attempted 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. (365gay.com) Saskatchewan terminated the employment of one civic official who declined to perform same-sex marriage ceremonies on religious grounds.

[edit] 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 Senate, and received its first reading on June 29. Debate was launched on July 4, and a Liberal 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), on July 20, 2005 (Hansard).

See [6] for the entire legislative process of this bill.

[edit] Same-sex marriage in the 39th Parliament

Main article: Members of the 39th Canadian Parliament and same-sex marriage

In the 2006 federal election, the Conservative Party, led by Stephen Harper won a minority government. Harper had campaigned on the promise of holding a 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-dominated 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. 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. 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.

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."[7]

[edit] 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, according to a study by Canadians for Equal Marriage. [8]

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

[edit] Other same-sex partner benefits in Canada

[edit] 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 partners must also be extended the rights and benefits of common-law relationships.

Further information: Common-law marriage#Canada

The province of Quebec also offers civil unions to same-sex partners. Nova Scotia's Domestic partnerships 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 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."

[edit] Recognition in other provinces and territories

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. (The Globe and Mail) See Same-sex marriage in Alberta. 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.

[edit] 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. 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 MP Bill Siksay introduced a motion in Parliament 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 Standing Committee on Citizenship and Immigration voted to recommend that the government do this.[9] In late January 2007, Citizenship and Immigration Minister Diane Finley informed the committee that this would be done.[10] In February 2007, the CIC website was updated to reflect the fact that the policy has been updated. See Sponsoring your same-sex partner as a spouse.

[edit] Military

Since September 2003, military chaplains have been allowed to bless same-sex unions and to perform these ceremonies on a military base.[11] The military have also granted spousal benefits to same-sex couples.[12]

On June 15, 2005, the first same-sex marriage in the Canadian military was announced, having been presided over in May by a United Church minister at CFB Greenwood in Nova Scotia.[13]

[edit] 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 this decision.[14]

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.[15] 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. [16] [17] [18]

[edit] 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; her reasons for the decision have yet to be released. [19] [20] [21]

In June 2005, a lesbian couple in British Columbia, whose names cannot be released, obtained a similar ruling. [22]

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. Canoë (in French) Section 8 of the Civil Marriage Act amended the Divorce Act to permit same-sex divorce.

[edit] Acceptance among population

While there has been a dramatic increase of acceptance of same-sex marriage in Canada preceding the enactment of The Civil Marriage Act in 2005; it should be noted that the then Prime Minister, Paul Martin, stated to Parliament that:

"The Charter was enshrined to ensure that the rights of minorities are not subjected, are never subjected, to the will of the majority. The rights of Canadians who belong to a minority group must always be protected by virtue of their status as citizens, regardless of their numbers. These rights must never be left vulnerable to the impulses of the majority." — Paul Martin, Prime Minister, 2005-02-16 Paul Martin's speech on same-sex marriage

[edit] Opinion polls, pre-enactment

Public opinion polls in Canada have been generally split regarding support for same-sex couples. This can be seen as far back as 1996 when an Angus-Reid/Southam News poll reached the conclusion that 49% of Canadians favoured same-sex marriage, while 51% were opposed. In May 1999, a Globe&Mail/CTV/Angus-Reid poll had public support at 53% for gay marriage, and 44% opposed. In an April 2005 poll, "[s]lightly more than half – 52 per cent – of the 1,203 respondents said they disagreed with the Liberal government's plan to change the definition of marriage to include same-sex couples."[23]

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. 46% of respondents said they supported same-sex marriage while 46% said they did not.

In other 2003 polls, the percentage of support had risen to slightly over 50%, and two thirds of Canadians believed 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. This is evident in a Canadian Press/Leger Marketing poll in 2001, whereby only 18.6% of the public felt gays and lesbians shouldn't have the same tax breaks. This poll also showed 81% of those between 18-34 support same-sex marriages.

In October 2004, an Ipsos-Reid/CTV/Globe&Mail poll found 54% of Canadians agreed with same-sex marriages, while 43% disagreed. These exact numbers were replicated in an Environics/CBC poll conducted in January the following year, 54%-43%.

"March of Hearts" rally for same-sex marriage on Parliament Hill in Ottawa in 2004

According to the majority of polls, 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 strongest support is concentrated in the largest metropolitan areas, particularly in and around the three largest urban areas of Toronto, Montreal and Vancouver. The strongest opposition is found in the Prairie Provinces, the interior of British Columbia, much of southern Ontario outside the Greater Toronto Area and in southern and western New Brunswick.^{[citation needed]} Polls show that more highly educated Canadians are more likely to support same-sex marriage.

There has been some debate over the need for a national referendum on the issue, although all party leaders have previously rejected this idea. In 2002, an EKOS Research poll showed that if there was a national referendum on the issue, either side could win: 47% would vote to oppose same-sex marriage, while 45% would vote in favour. However, in 2005, Liberal Prime Minister Paul Martin threatened Conservative leader Stephen Harper, to go to the polls over same-sex marriage and the Charter of Rights. A poll commissioned by Ipsos-Reid in January 2005, showed the Liberals would win if the public were forced to vote on the issue. Firstly, 71% felt an election call over same-sex marriage "is unjustifiable." If forced, however, the Liberals would garner 41% of the decided vote, the Conservatives 29%, the NDP 13%, 36% for the Bloc Québécois (in Quebec), and 4% for the Green Party.

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 split nearly evenly among the three main options of allowing the word "marriage" to apply irrespective of gender; allowing full legal rights to same-sex couples but reserving the name "marriage" for heterosexual couples (the "separate but equal" option); and extending no legal status at all to same-sex couples. It concluded that although the public embraced gay rights, 66% opposed same-sex marriage. The poll was discredited by many as the poll purportedly asked respondents how many sexual partners they had, and in the COMPAS report, it stated those in favour of same-sex marriage "had 5 or more sexual partners" and "belonged to the small minority that favour polygamy."

Over the past decade, Canadian public opinion on legalizing same-sex marriage has undergone a dramatic shift: moving from minority-support to majority-support between 1997 and 2004. A recent study by Mark W. Lehman [24] suggests that, contrary to public opinion polls, the factors that influence this opinion are not demographic in origin but attitudinal. Specifically, the research indicates that between 1997 and 2004 there was a large decrease in the influence of traditional moral values, and very large increase in the influence of one's feelings towards gays and lesbians. Over this period, not only did a large proportion of Canadians come to hold more positive feelings towards gays and lesbians, but the influence that these positive feelings had on opinions to legalizing same-sex marriage grew eightfold. This particular change was found to be the fundamental factor in the majority of Canadian citizens coming to support same-sex marriage prior to its legalization.

[edit] Opinion polls, post-enactment

After Bill C-38 passed the House of Commons in June 2005, a poll taken by Strategic Counsel for CTV/Globe&Mail asked "Do you think Bill C-38 should stand or be repealed by the next government?" 55% of respondents said "Bill C-38 should stand" while 39% said "Bill C-38 should be repealed." [25][26]

In November 2005, a poll taken by Environics Research said 66% of Canadians considered the issue of same-sex marriage "settled and it's time to move on." 32% favoured reopening the debate. [27] Another Environics poll taken January 2006 said 66% of Canadians were against bringing the issue of same-sex marriage back to Parliament, and this time 30% wanted the issue brought back.[28]

A Leger Marketing poll conducted for Sun Media in December 2005 and which asked "In your opinion, should Parliament have a free vote on gay marriage or not?" gave 55% of public support for a free vote. [29]. An issue raised by some in this poll was that the poll didn't clarify if another free vote was backed on the issue, or if this is the way the issue should be ultimately settled.

In a pre-election survey report by CBC/Radio-Canada, only 2% of Canadians listed same-sex marriage in response to the question: "Thinking about all the issues in the current federal election, which one is the most important in influencing your vote?".

The most recent public opinion poll on same-sex marriages became available on June 19th, 2006. The poll, conducted by Environics, showed that support for the law increased, as Canadians accept gay marriage by a 59-33 majority. An Environics poll taken in January 2005, showed the majority favoured the law, but by a tighter margin: 54-43. The poll also asked respondents if they favoured reopening the issue, as Stephen Harper promised to do that autumn. 62% responded that the issue is settled, 27% felt the issue should be reopened. An Environics poll taken in January, 2006, showed a margin of 66-30 against reopening the debate. Thus, although opposition to reopening the debate fell by 4 points, support for raising it again fell by 3. Finally, only a slim majority of conservative voters felt the issue should be reopened. Strong opponents have fallen from 46% per cent to 35%.

Another poll on same-sex marriage was released one week earlier. This poll, conducted by Leger Marketing, was only conducted within the province of Ontario. Out of 1,000 respondents, 49% supported same-sex marriage, and 40% were opposed. 11% provided tacit support by volunteering an "it's none of my business/I don't care" response, thus bringing support for gay marriage up to 60% in the province. The poll showed that 21% of Ontarians say that a free vote on the definition of marriage should be a top (10%) or major (11%) priority for the federal government.

A poll conducted by COMPAS in October 2006 shows that 57% of Canadians believe that "so long as there are enough marriage commissioners available for gay marriages," marriage commissioners should be "allowed not to officiate at gay marriages if this is against their religious beliefs." The poll also discovered that 49% of Canadians supported revisiting the same-sex marriage law to make sure that "freedom of speech and freedom of religion are fully protected."[30]

[edit] Groups for and against

Notable groups advocating in favour of same-sex marriage include Egale Canada, the United Church of Canada, Canadian Labour Congress, Canadians for Equal Marriage, YWCA-Toronto, Canadian Bar Association, Elementary Teachers Federation of Ontario, Muslim Canadian Congress, Canadian Friends Service Committee (Quakers), Canadian Auto Workers, COLAGE-Toronto, COLAGE-Winnipeg, United Steelworkers of America in Canada, International Association of Machinists and Aerospace Workers, National Union of Public and General Employees, PFLAG Canada, Canadian Federation of Students, Canadian Psychological Association, Canadian Association of University Teachers, Canadian Association of Social Workers, Communications, Energy and Paperworkers Union of Canada, Ontario Federation of Labour, Canadian Union of Postal Workers, Liberal Party of Canada, Canadian Human Rights Commission, British Columbia Civil Liberties Association, Canadian Civil Liberties Association, Manitoba Human Rights Commission, The Humanist Association of Canada, and Unitarian Universalist congregations.

Groups opposed include REAL Women of Canada, Focus on the Family Canada, Catholic Civil Rights League, Canada Family Action Coalition, Vote Marriage Canada, Convention of Atlantic Baptist Churches, Conservative Party of Canada, Enshrine Marriage Canada, defendMARRIAGE.ca, Christian Heritage Party of Canada, Mennonite Church Canada, and the Roman Catholic Church in Canada.

After the vote, opponents seemed to have divergent ideas about how to counter same-sex marriage next. REAL Women of Canada advocated a national referendum, while Enshrine Marriage Canada advocated a constitutional amendment akin to the twice-defeated US Federal Marriage Amendment, Canada Family Action Coalition threatened that Canadian social conservative voters would vote against Conservative Party of Canada election candidates at the next general election, and Vote Marriage Canada advocated voting for candidates that supported social conservative definitions of marriage as a heterosexual institution only [31]. The Institute of Marriage and Family Canada, an initiative of Focus on the Family Canada, endorses a royal commission on the future of the family.

[edit] Church and State

Based on the 2001 census, three main Abrahamic religions (Judaism, Islam, and Christianity) represent 80% of the Canadian population.^[2] 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 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% of the population identifying themselves as Catholic. 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, in a pastoral letter urged Catholics to fight against the legalization same-sex marriage, calling homosexuality "an evil act." [32] 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."^[3] 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 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.[33]. 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. Local affiliate groups of The Humanist Association of Canada offer officiancy (marriage commissioner) services across Canada.

[edit] See also

[edit] References

^ Liberals to introduce same-sex marriage bill in January, CBC News, 10 December 2004
^ Statistics Canada website, Population by religion, by province and territory (2001 Census), URL accessed May 14, 2006
^ "Complaints before the Alberta Human Rights Commission concerning Bishop Henry's pastoral letter", religioustolerance.org, Ontario Consultants on Religious Tolerance, 2005-11-03. Retrieved on 2007-07-30.

[edit] Bibliography

Larocque, Sylvain (2006). Gay Marriage: The Story of a Canadian Social Revolution. Toronto: James Lorimer & Company. ISBN 1-55028-927-6.

[edit] External links

Wikinews has related news:

Canadian PM vows to push ahead with same-sex marriage bill