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BILL C-38: THE CIVIL MARRIAGE ACT

Prepared by:
Mary C. Hurley
Law and Government Division
2 February 2005
Revised 14 September 2005


LEGISLATIVE HISTORY OF BILL C-38
HOUSE OF COMMONS
SENATE
Bill Stage
Date
Bill Stage
Date
First Reading:
1 February 2005
First Reading: 29 June 2005
Second Reading: 4 May 2005 Second Reading: 6 July 2005
Committee Report: 16 June 2005 Committee Report: 18 July 2005
Report Stage: 27 June 2005 Report Stage:  
Third Reading: 28 June 2005 Third Reading: 19 July 2005

Royal Assent: 20 July 2005
Statutes of Canada S.C. 2005, c. 33

 

N.B. Any substantive changes in this Legislative Summary which have been made since the preceding issue are indicated in bold print.

 

TABLE OF CONTENTS

BACKGROUND

   A. Overview of Legislative Reforms to Date
   B. Marriage and the Constitution
      1. Division of Powers
      2. Capacity to Marry
   C. Relevant Case Law
      1. Prior to 2001
         a. North v. Matheson
         b. Layland v. Ontario (Minister of Consumer and Commercial Relations)
      2. 2001-2005
      3. Parliamentary Committee Hearings
      4. Supreme Court of Canada Reference

DESCRIPTION AND ANALYSIS

   A. Preamble
   B. Civil Marriage (Clause 2)
      1. Parliament’s Jurisdiction Over Marriage
      2. Charter Compliance
      3. Effect of Legislative Recognition of Same-sex Marriage
   C. Religious Marriage (Clause 3)
   D. Freedom of Conscience and Religion (new clause 3.1)
   E. Certainty Clause (Clause 4)
   F. Consequential Amendments (Clauses 5-15)

COMMENTARY


BILL C-38: THE CIVIL MARRIAGE ACT*

Bill C-38, An Act respecting certain aspects of legal capacity for marriage for civil purposes, or the Civil Marriage Act, received first reading in the House of Commons on 1 February 2005. The bill codifies a definition of marriage for the first time in Canadian law, expanding on the traditional common-law understanding of civil marriage as an exclusively heterosexual institution. Bill C-38 defines civil marriage as “the lawful union of two persons to the exclusion of all others,” thus extending civil marriage to conjugal couples of the same sex.

Second reading debate on Bill C-38 occurred between 16 February and 4 May 2005, followed by Legislative Committee hearings from 11 May through 14 June. The Committee heard fundamentally divided testimony on the merits of the legislation from witnesses representing various religious institutions and affiliated organizations or groups, advocacy groups for lesbians and gay men, spokespersons for traditional marriage, academics and legal experts.

The bill was reported back to the House of Commons on 16 June, with one substantive government amendment and one opposition amendment to the bill’s preamble. Bill C-38 was adopted at report stage on 27 June with one additional substantive opposition amendment, and passed the House of Commons on 28 June by a vote of 158-133, with 32 government Members opposing.

Introduced in the Senate on 29 June, Bill C-38 underwent second reading debate from 4 through 6 July. In hearings before the Standing Senate Committee on Legal and Constitutional Affairs from 11 through 14 July, supportive and opposing witness testimony essentially echoed that given before the House Committee. Bill C-38 was reported back to the Senate on 18 July with no further amendments, and passed the Senate on 19 July by a vote of 47-21.

The Civil Marriage Act came into effect with Royal Assent on 20 July as Chapter 33 of the Statutes of Canada for 2005. With its enactment, Canada became the fourth country to legislate same-sex marriage, the others being the Netherlands (2001), Belgium (2003) and Spain (2005).

BACKGROUND

   A. Overview of Legislative Reforms to Date

Every jurisdiction in Canada prohibits discrimination based on sexual orientation in the provision of services, accommodation and employment.(1) The coming into effect in 1985 of section 15 of the Canadian Charter of Rights and Freedoms, the equality rights provision, influenced legislative reform in this area. Section 15 has also been instrumental in the gradual development, since the early 1990s, of provincial and federal legislation to extend statutory entitlements of heterosexual conjugal couples to same-sex couples. From 1992 through 1999, for example, B.C. legislation amended the definition of “spouse” in numerous statutes to include persons of the same sex living in “marriage-like” relationships. In 1999, Quebec legislators unanimously adopted omnibus legislation that amended the definition of de facto spouse [conjoint de fait] in the affected statutes to include same-sex couples.(2) The same year also saw the enactment of the first federal legislation to provide unambiguously for same-sex benefits, the Public Sector Pension Investment Board Act (Bill C-78), whose amendments to affected statutes included replacing opposite-sex “surviving spouse” benefits with gender-neutral “survivor” entitlements.

The pace of legislative reform accelerated significantly following the Supreme Court of Canada’s decision in the Ontario case of M. v. H., the first high court ruling to allow a section 15 Charter challenge to the legislated opposite-sex definition of “spouse.”(3) Although the Court’s decision was immediately concerned only with Ontario laws, its longer-term effects are apparent in virtually every jurisdiction.

Legislators in British Columbia, Saskatchewan, Manitoba, Ontario, Newfoundland and Labrador, and Nova Scotia have since enacted a wide but non-uniform range of legislative measures providing for various same-sex entitlements; initiatives in New Brunswick, the Northwest Territories and Prince Edward Island were fewer and narrower in scope. In Nova Scotia and Manitoba, civil registration schemes for unmarried heterosexual and homosexual couples are also now in place. In Quebec, a civil union regime governed by the same rules as apply to solemnization of marriage, entailing the rights and obligations of marriage and subject to formal dissolution rules, mirrors marriage. In Alberta, the newly legislated status of “adult interdependent partner” for purposes of several family-related provincial statutes provides for rights and obligations of persons in a variety of non-married but not necessarily conjugal relationships involving interdependency.(4)

In the result, a patchwork of entitlements is in effect across the country.(5) In addition, some provincial schemes reserve the term “spouse” for married partners, some for married and unmarried opposite-sex couples, and some extend the meaning of spouse to include same-sex partners.

Federally, the Modernization of Benefits and Obligations Act (Bill C-23) enacted by Parliament in 2000 amended 68 statutes to effect equal application of federal laws to unmarried heterosexual and same-sex couples, and to extend to them some benefits and obligations previously limited to married couples. Although the then Minister of Justice emphasized that Bill C-23 did not affect the institution of marriage, critics urged the government to define marriage in the bill. Accordingly, the government inserted an interpretive amendment under which, “[f]or greater certainty, the amendments made by this Act do not affect the meaning of the word ‘marriage,’ that is, the lawful union of one man and one woman to the exclusion of all others.”

   B. Marriage and the Constitution

Judicial, political and legislative activity has clarified the legal rights of lesbians and gay men in Canada. In recent years, there have been increasing calls for extending the institution of marriage to same-sex couples on the basis of constitutional equality rights. These have now been sanctioned by the courts of eight provinces and one territory. The following paragraphs review fundamental constitutional principles of marriage law in Canada, as well as the relevant case law.

      1. Division of Powers

The Constitution Act, 1867 divides legislative jurisdiction over family law. Under the subsection 92(13) umbrella head of power, “Property and Civil Rights in the Province,” the bulk of family-related matters falls under provincial authority. These matters include, among others, matrimonial property, spousal and child support other than under Divorce Act proceedings, adoption, succession and guardianship.(6)

Marriage itself is subject to more explicit constitutional treatment. Subsection 91(26) of the Constitution Act, 1867 authorizes Parliament to legislate in relation to “Marriage and Divorce,” while subsection 92(12) gives provincial legislatures the power to enact laws in respect of “The Solemnization of Marriage in the Province.”

      2. Capacity to Marry

It is, by now, well-settled law that Parliament has exclusive jurisdiction to regulate the legal capacity to enter into marriage, or matters of its essential validity. By the same token, the provinces enjoy exclusive competence over matters of formal validity.

There has always been a paucity of federal legislation relating to marriage. In the Marriage (Prohibited Degrees) Act(7) – prior to Bill C-38, the sole statute in effect under Parliament’s section 91(26) authority over marriage – two substantive provisions define prohibited degrees of “relatedness” or consanguinity. A third section provides that the Act “contains all of the prohibitions in law against marriage by reason of the parties being related.” Marriage itself is not defined.(8)

Provincial and territorial “solemnization of marriage” statutes are concerned primarily with conditions precedent to marriage of a ceremonial nature such as the issuance of licences, the publication of banns, the qualifications of celebrants and similar “formal” rules. On occasion, the courts have sanctioned other provincial rules less clearly associated with the marriage ceremony, leading to some concern that, in the absence of national standards, requirements for entering into a valid marriage would become a matter of concurrent jurisdiction.(9) According to the more widely held view, although Parliament has not, in the past, fully “exercised its jurisdiction to set out explicit criteria regarding the capacity to marry … [a]ny attempt by the provinces to do so would likely be unconstitutional and of no force and effect.”(10)

   C. Relevant Case Law

      1. Prior to 2001

In the absence of a statutory definition of marriage, or of any statutory provisions barring same-sex marriage, the two leading cases in Canadian law to have considered the same sex marriage issue over this period turned to British precedents.

         a. North v. Matheson(11)

This pre-Charter case concerned an administrative refusal to register the Manitoba “marriage” of a same-sex couple. In upholding this decision, the judge considered, most notably, the 1866 British ruling in Hyde v. Hyde and Woodmansee on the lawfulness in Britain of a polygamous marriage, which defined the institution of marriage, “as understood in Christendom, … as the voluntary union for life of one man and one woman, to the exclusion of all others.”(12) The Hyde decision is often cited as the source of the Canadian common-law requirement that a valid marriage be heterosexual.

Further authority was found in a 1970 British decision concerning the validity of a marriage between a man and a person who had undergone a male to female sex change. It observed that “sex is clearly an essential determinant of the relationship called marriage, because it is and always has been recognized as the union of man and woman. … [T]he characteristics which distinguish [marriage] from all other relationships can only be met by two persons of opposite sex.”(13)

         b. Layland v. Ontario (Minister of Consumer and Commercial Relations)(14)

In this unsuccessful Charter challenge to the common-law rule restricting marriage to persons of the opposite sex, the majority ruling relied heavily on the North decision and its judicial antecedents.(15) It concluded that “under the common law of Canada applicable to Ontario a valid marriage can take place only between a man and a woman and that persons of the same sex do not have the capacity to marry one another.”(16) Furthermore, the federal common law did not violate section 15 of the Charter. The question of whether same-sex unions “should receive the same benefits as parties to a marriage, without discrimination because of the nature of their unions, is another question.”(17)

The dissenting judge took the position that precedents relied upon by the majority should not be applied, “given what has taken place since the Charter was passed, and given the body of law which has applied s. 15 of the Charter.”(18) She disagreed that the federal common law restricts valid marriages to those between different-sex couples, observing that “the common law must grow to meet society’s expanding needs,”(19) and that, if such a prohibition did exist, it was unlikely to survive Charter scrutiny.

      2. 2001-2005

Over this period, 11 of 12 provincial and territorial courts to have considered the Charter challenges of gay and lesbian couples invalidated the traditional common-law opposite-sex definition of marriage and replaced it by a redefinition based on equality rights grounds under section 15 of the Charter. Only the British Columbia Supreme Court, in October 2001, dismissed a challenge to the province’s refusal to issue marriage licences to same-sex couples. In May 2003, the British Columbia Court of Appeal overturned this ruling.(20)

In July 2002, three judges of the Ontario Superior Court of Justice (Divisional Court) dealing with a similar challenge found unanimously that the existing common-law rule defining marriage in opposite-sex terms represented an unjustified infringement of section 15 of the Charter. The ruling was unprecedented in Canada. In September 2002, the Cour supérieure du Québec became the second Canadian court to allow a same-sex marriage application.(21) It declared the opposite-sex language in section 5 of the 2001 Federal Law-Civil Law Harmonization Act, No. 1 contrary to section 15 and of no force and effect(22) and extended the declaration to the interpretive provision in the federal Modernization of Benefits and Obligations Act and to the Code civil provision that also characterized marriage as a heterosexual institution. Both courts suspended their declarations of invalidity for a two-year period.

In June 2003, the Ontario Court of Appeal’s unanimous decision upheld the Divisional Court’s conclusions.(23) In per curiam reasons, the Court asserted, in part:

The Court invalidated the existing common-law definition of marriage and reformulated it to refer to the “voluntary union for life of two persons” with immediate effect in Ontario. In July 2003, the British Columbia Court of Appeal and, in March 2004, the Cour d’appel du Québec(24) also enabled same-sex couples to marry legally in their respective provinces immediately.

Lower courts in Yukon, Manitoba, Nova Scotia, Saskatchewan, Newfoundland and Labrador and New Brunswick subsequently followed suit. The federal government either did not oppose or did not intervene in the last four cases.

      3. Parliamentary Committee Hearings

In 2002, the federal Department of Justice released a paper entitled Marriage and Legal Recognition of Same-Sex Unions: A Discussion Paper. The document was intended to enable focused debate by the then House of Commons Standing Committee on Justice and Human Rights, and others, around the question of how federal policy and legislation might address the same-sex marriage issue. Accordingly, the then Minister of Justice asked the Justice Committee to study the question of whether, in the context of Canada’s constitutional framework and the traditional definition of marriage, Parliament should take steps to recognize same-sex unions, and if so, how. Following approximately three months of hearings on this issue, the Committee was in the process of preparing its report to the House when, on 10 June 2003, the Ontario Court of Appeal released its ruling giving immediate effect to same-sex marriage in Ontario. The Committee subsequently adopted a motion to support “the recent Ontario Court of Appeal decision which redefines the common-law definition of ‘marriage’ as ‘the voluntary union for life of two persons, to the exclusion of all others,’ while fully respecting freedom of religion, as guaranteed under the Charter of Rights.” In light of these developments, the Committee report was not completed.

      4. Supreme Court of Canada Reference

In June 2003, then Prime Minister Chrétien announced that the federal government would not appeal Ontario and B.C. appellate decisions, and would discontinue the federal appeal in the Quebec case. In July, the government referred draft marriage legislation to the Supreme Court of Canada in a constitutional reference. The draft bill proposed a definition under which “Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.” It addressed the issue of religious freedom, affirming that “nothing in this Act affects the freedom of officials of religious groups to refuse to conduct marriage ceremonies that are not in accordance with their religious beliefs.”

The government requested that the Court consider whether: (1) the draft bill fell within Parliament’s exclusive legislative authority; (2) the bill’s extension of the capacity to marry to persons of the same sex was consistent with the Charter; and (3) the Charter’s freedom of religion guarantee shielded religious officials from being forced to perform same-sex marriages contrary to their religious beliefs. In January 2004, the Minister of Justice, citing the importance of a full and informed debate, added a fourth question to the Supreme Court reference, asking whether the current opposite-sex requirement for civil marriage was consistent with the Charter.

The Supreme Court of Canada heard arguments in the Reference on 6 and 7 October 2004, and issued its ruling on 9 December 2004.(25) It found, in part, that:

The Court declined to answer the fourth question concerning whether the opposite-sex requirement for marriage was consistent with the Charter. In its view, the federal government intended to proceed with legislation irrespective of the Court’s opinion, while married same-sex couples relying on the finality of judicial decisions in jurisdictions where such marriages were now legal had acquired rights that deserved protection.

DESCRIPTION AND ANALYSIS

Bill C-38 consists of a lengthy preamble and 15 clauses, 11 of which represent consequential amendments to 8 federal statutes. The following paragraphs focus on the bill’s primary subject matter. Amendments are included.

   A. Preamble

The 11-paragraph preamble that precedes Bill C-38’s substantive provisions will enter the statute book as an integral part of the legislation. In recent years, statutory preambles seem to be employed more frequently as a means of establishing a context and rationale for legislation and of underscoring parliamentary intent in enacting it. Preambles are considered interpretive rather than substantive, and may be relied upon by courts seeking to resolve ambiguity in the statute they introduce.

The preamble to Bill C-38 includes statements of principle and fact,

   B. Civil Marriage (Clause 2)

Bill C-38’s key provision defines civil marriage as “the lawful union of two persons to the exclusion of all others.” It is worth stressing that the legislation is concerned exclusively with civil marriage, and does not affect gender-neutral survivor or common-law partner entitlements in federal legislation.

The terms of clause 2 are identical to those of the draft provision considered by the Supreme Court of Canada (the Court) in the December 2004 Reference decision, and reflect the substance of reformulations of the traditional common-law definition effected in provincial court rulings outlined above. The following paragraphs set out the Court’s views on this provision.

      1. Parliament’s Jurisdiction Over Marriage

In the Reference case, the Court noted, first, historic rulings recognizing that “s. 91(26) confers on Parliament legislative competence in respect of the capacity to marry, whereas s. 92(12) confers authority on the provinces in respect of the performance of marriage once that capacity has been recognized” (par. 18). The Court determined that the draft clause in question, “in pith and substance, … pertains to legal capacity for civil marriage. Prima facie, therefore, it falls within a subject matter allocated exclusively to Parliament (s. 91(26))” (par. 19). It further noted that “[l]egislative competence over same-sex marriage must be vested in either Parliament or the legislatures. Neither s. 92(12) nor s. 92(13) can accommodate this matter. Given that a legislative void is precluded, s. 91(26) most aptly subsumes it” (par. 34).

      2. Charter Compliance

The Court also concluded that the draft provision, the predecessor to clause 2, complied with the Charter. It observed that the provision represented a direct response to the findings of provincial courts, and “embodies the government’s policy stance in relation to the s. 15(1) equality concerns of same-sex couples. This, combined with the circumstances giving rise to the [draft legislation] …, points unequivocally to a purpose which, far from violating the Charter, flows from it” (par. 43).

      3. Effect of Legislative Recognition of Same-sex Marriage

The Court considered arguments that legislating same-sex marriage discriminates against religious groups opposed to it and/or would result in a collision of equality rights with freedom of religion guarantees. It found, on the first point, that the draft legislation reflected in clause 2 “withholds no benefits, nor does it impose burdens on a differential basis. It therefore fails to meet the threshold requirements of … s. 15(1) analysis” (par. 45). In the Court’s view, “[t]he mere recognition of the equality rights of one group cannot, in itself, constitute a violation of the rights of another” (par. 46).

On the second point, the Court declined to deal with an alleged collision of rights in the abstract, in the absence of a factual context. It did not rule out the possibility that such a collision could occur should legislation recognizing same-sex marriage become law, adding that “[c]onflicts of rights do not imply conflict with the Charter; rather, the resolution of such conflicts generally occurs within the ambit of the Charter itself” (par. 52). The Court noted that:

The protection of freedom of religion afforded by s. 2(a) of the Charter is broad and jealously guarded in our Charter jurisprudence. We note that should impermissible conflicts occur, the provision at issue will by definition fail the justification test under s. 1 of the Charter and will be of no force or effect under s. 52 of the Constitution Act, 1982. In this case the conflict will cease to exist. (par. 53)

In the result, the Court concluded that the “potential for collision of rights raised by [the clause 2 predecessor provision] has not been shown on this reference to violate the Charter. It has not been shown that impermissible conflicts – conflicts incapable of resolution under s. 2(a) – will arise” (par. 54).

   C. Religious Marriage (Clause 3)

Clause 3 recognizes that officials of religious denominations may refuse to perform marriages that are at odds with their religious beliefs. It is worth noting that the Court’s reference decision considered a differently worded provision of the draft legislation under which “[n]othing in this Act affects” religious officials’ freedom not to officiate at same-sex marriages. The Court found that provision ultra vires Parliament’s constitutional authority, in that it related to those who may perform marriages, a matter over which provincial legislatures have exclusive competence under subsection 92(12) of the Constitution.(27) A revised version of that provision’s terms is set out in the preamble’s seventh paragraph where, as noted, it serves to provide context and rationale for the legislation.

Ultimately, the Court observed, “it would be for the Provinces, in the exercise of their power over the solemnization of marriage, to legislate in a way that protects the rights of religious officials while providing for solemnization of same-sex marriage” (par. 55). In this regard, the Court added, “[i]t should also be noted that human rights codes must be interpreted and applied in a manner that respects the broad protection granted to religious freedom under the Charter” (par. 55). In the Court’s view, “it … seems clear that state compulsion on religious officials to perform same-sex marriages contrary to their religious beliefs would violate the guarantee of freedom of religion under s. 2(a) of the Charter” (par. 58).

Throughout the Bill C-38 legislative process, questions were raised as to whether the recognition language set out at clause 3 is sufficiently distinct from that of the more declaratory language of the former draft provision to pass constitutional muster. The matter may not arise, in the absence of a legal challenge to the provision.

   D. Freedom of Conscience and Religion (new clause 3.1)

The House of Commons Legislative Committee heard from a number of witnesses opposing Bill C-38 that a primary concern from their perspective related to the bill’s inadequate protection of religious freedom, and of expressive freedom based on religious belief, for both religious institutions and officials as well as individuals. The absence of parliamentary authority to remedy this perceived failing owing to the constitutional division of powers was seen by these witnesses as particularly problematic. Acknowledging that the solemnization of marriage and other practical contexts in which the guarantee of freedom of religion is engaged largely fall under provincial jurisdiction, some were of the view that the bill could and should enhance the level of protection available in respect of areas of federal jurisdiction. To address this perceived deficiency, the government proposed, and the Committee adopted, a new provision under which,

For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.

   E. Certainty Clause (Clause 4)

This self-explanatory provision stipulates, for greater certainty, that a marriage is not voidable on the sole basis that the spouses are of the same sex. It is understood that same sex marriages will be voidable on the same grounds as apply to heterosexual marriages.

   F. Consequential Amendments (Clauses 5-15)

Clauses 8, 9 and 15 set out the most obviously consequential amendments to legislation directly affected by Bill C-38,

Bill C-38 changes to the definition of “personal body corporate” in both the Canada Business Corporations Act and the Canada Cooperatives Act provide for control by individuals connected by a “legal parent-child relationship,” as opposed to the previous requirement for connection by blood relationship or adoption (clauses 5 and 6). Connection by way of “common-law partnership” is also added, together with its gender-neutral definition, as effected in other federal statutes by the 2000 Modernization of Benefits and Obligations Act.

Clause 7 repeals a section of the Civilian War-related Benefits Act that refers to pension payments to a “husband” or “wife” in a pensioner couple. The provision in question applied to World War II volunteer air raid precaution workers.

Bill C-38’s amendments to provisions of the Income Tax Act replace existing references to “natural parent” with “legal parent” and remove the reference to an individual “of the opposite sex” from a provision related to the extended meaning of “spouse” and “former spouse” (clauses 10-12). By unanimous consent, a further amendment to the tax law was adopted at report stage in the House of Commons. It seeks to respond to critics’ concerns that the charitable status of religious institutions or organizations opposed to same-sex marriage on religious grounds was at risk of revocation owing to that opposition. Under new clause 11.1, amending section 149.1 of the Income Tax Act,

(6.2.1) For greater certainty, subject to subsections (6.1) and (6.2), a registered charity with stated purposes that include the advancement of religion shall not have its registration revoked or be subject to any other penalty under Part V solely because it or any of its members, officials, supporters or adherents exercises, in relation to marriage between persons of the same sex, the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms.

Finally, the bill’s technical amendments to the drafting of subsections 2(2) and 3(2) of the Marriage (Prohibited Degrees) Act prohibit marriage between closely related persons of the same sex (clauses 13 and 14).

COMMENTARY

As anticipated, reaction to Bill C-38 throughout the legislative process was mixed, both within and outside Parliament.

Bill C-38 critics focused on perceived threats to the institution of heterosexual marriage itself as a stabilizing force in society, to the family unit, and to the religious and expressive freedom of those opposed to same-sex marriage. It was argued that the legislation fails to adequately protect clergy and other public officials, such as civil marriage commissioners, who do not wish to recognize or officiate at same-sex marriages. Opponents pointed to provincial jurisdiction over solemnization of marriage, as confirmed in the Supreme Court of Canada Reference decision, as evidence that federal guarantees in this area lack substance. Fears of harm to children raised by same-sex parents were also expressed. Advocacy groups for gay and lesbian rights and human rights organizations, on the other hand, welcomed the bill as landmark equality rights legislation that would end exclusion of and discrimination against gay and lesbian conjugal couples. In this view, Bill C-38 represents final endorsement of long-standing claims to equal access to the institution of civil marriage in a manner that does not undermine religious freedom guaranteed by the Charter.

At the political level, the federal Conservative Party of Canada initially expressed an intention to amend the bill to restore the traditional common-law definition of marriage and establish a parallel regime for gay and lesbian couples.(28) In their view, such a scheme would withstand Charter scrutiny,(29) despite broad legal opinion to the contrary.(30) Following passage of Bill C-38 by the Commons, Conservative spokespersons voiced doubt about the bill’s effectiveness in protecting religious freedoms, and indicated the same-sex marriage issue could be revisited as an election issue or by a future Parliament.(31) Immediate provincial response to Bill C-38 emanated largely from Alberta, with reports of the government’s political determination to defend the traditional definition of marriage, and its intention to weigh options toward that end. The Premier subsequently acknowledged his government lacked legal avenues to prevent the bill’s application in the province, and announced plans to introduce legislation to provide legal protection for religious officials and marriage commissioners who decline to perform same-sex marriages on religious grounds.(32)

Op-ed comment also offered a range of views. On the one hand, the criticisms of some religious groups and politicians were said to be deliberately misleading in light of the Supreme Court of Canada’s clear message that the Charter’s guarantee of freedom of religion prevails. The position of the Conservative opposition was criticized as less than forthcoming, among other things, about the use of the notwithstanding clause in legislation to restore the opposite-sex definition of marriage, and the constitutionality of its civil union proposal for gays and lesbians.

On the other hand, the government was said to be less than truthful because, despite its present stance on religious freedom, a future Parliament or court could remove the right of a religious group to refuse to perform same-sex marriage. There was a suggestion that Bill C-38 would eventually pit the rights of religious freedom and freedom of speech against minority rights. According to another view, the failure of the Supreme Court of Canada’s Reference ruling to determine whether the opposite-sex definition of marriage is consistent with the Charter represented a missed opportunity to mitigate legal uncertainty and introduce order into the debate.

As the legislative process progressed, editorial opinion seemed to take the position that the issue of same-sex marriage and Bill C-38 had been sufficiently debated, calling for the legislation to be put to a final vote to allow Parliament to address other pressing matters.


* Notice: For clarity of exposition, the legislative proposals set out in the bill described in this legislative summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both Houses of Parliament, receive Royal Assent, and come into force.

(1) Alberta is the only jurisdiction in which this ban was effected by the courts rather than legislation: Vriend v. Alberta, [1998] 1 S.C.R. 493.

(2) Loi modifiant diverses dispositions législatives concernant les conjoints de fait (Bill 32).

(3) [1999] 2 S.C.R. 3, affirming (1996), 142 D.L.R. (4th) 1, 31 O.R. (3d) 417 (Ont. C.A.). The case concerned a section of the province’s Family Law Act that prevented same-sex partners from applying for spousal support upon relationship breakdown. In its 1995 decision in Egan v. Canada ([1995] 2 S.C.R. 513), the Supreme Court of Canada had unanimously found sexual orientation to be an analogous ground that triggers section 15 protection. A majority of the Court had ruled that the opposite-sex spousal definition in the Old Age Security Act discriminated on the basis of sexual orientation, in violation of section 15 of the Charter. However, a majority also found the discrimination justified under section 1 of the Charter and upheld the legislation’s constitutionality.

(4) Under the 2002 Adult Interdependent Relationships Act, a “relationship of interdependence” is one outside marriage involving two persons of the same or of the opposite sex, including non-minor relatives.

(5) For a more detailed discussion of these developments, see Mary C. Hurley, Sexual Orientation and Legal Rights, CIR 92-1E, Parliamentary Information and Research Service, Library of Parliament, Ottawa, revised July 2005.

(6) See Peter Hogg, Constitutional Law of Canada, 3rd ed. (Supplemented), Carswell, Toronto, 1992, Vol. 1, chapters 21 and 26.

(7) S.C. 1990, c. 46 (R.S.C. 1985, c. M-2.1).

(8) Bill C-38 amendments to this legislation are outlined under the heading “Consequential Amendments.”

(9) Leslie Katz, “The Scope of the Federal Legislative Authority in Relation to Marriage,” Ottawa Law Review, Vol. 7, 1975, p. 396.

(10) Bruce Ryder, “Becoming Spouses: The Rights of Lesbian and Gay Couples,” in Family Law: Roles, Fairness and Equality, Special Lectures of the Law Society of Upper Canada, Carswell, Toronto, 1993, p. 432.

(11) (1974), 24 R.F.L. 112 (Man. Co. Ct.).

(12) (1866), L.R. 1 P & D 130, p. 133, cited in ibid., p. 116.

(13) Corbett v. Corbett (otherwise Ashley), [1970] 2 All E.R. 33, p. 48 (P.D.A.), cited in ibid.

(14) (1993), 104 D.L.R. (4th) 214 (Ont. Ct. Gen. Div.).

(15) The majority also cited a 1992 Ontario ruling which, following North, declared null a marriage between two women, one of whom planned to undergo a sex change. In C.(L.) v. C.(C.) (1992), 10 O.R. (3d) 254, p. 256, the judge concluded that “[t]he law as it presently exists does not provide for marriages between members of the same sex.” See ibid., pp. 218-219.

(16) Ibid., p. 219.

(17) Ibid., p. 223.

(18) Ibid., p. 227.

(19) Ibid., p. 234.

(20) EGALE Canada Inc. v. Canada (Attorney General) (2003), 38 R.F.L. (5th) 32 (B.C.C.A.), reversing (2001), 88 C.R.R. (2d) 322 (B.C.S.C.); supplementary reasons (2003), 42 R.F.L. (5th) 341 (B.C.C.A.).

(21) Hendricks c. Québec (Procureur général), [2002] R.J.Q. 2506.

(22) The section affirmed that “[m]arriage requires the free and enlightened consent of a man and a woman to be the spouse of the other.”

(23) Halpern v. Canada (Attorney General) (2003), 36 R.F.L. (5th) 127 (Ont. C.A.), affirming [2002] O.J. No. 2714 (Q.L.), (Ont. Sup. Ct. Justice (Div. Ct.)).

(24) Ligue catholique pour les droits de l’homme c. Hendricks, [2004] J.Q. No. 2593 (Q.L.).

(25) Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, 2004 SCC 79.

(26) The Court also found that “[t]he provinces are vested with competence in respect of non-marital same sex relationships, just as they are vested with competence in respect of non-marital opposite-sex relationships (via the power in respect of property and civil rights under s. 92(13)). … Civil unions are a relationship short of marriage and are, therefore, provincially regulated”; ibid., par. 33.

(27) The Court rejected the suggestion that the draft provision simply declared Parliament’s intent that the bill not be interpreted as interfering with provincial jurisdiction, finding that “only the provinces may legislate exemptions to existing solemnization requirements, as any such exemption necessarily relates to the solemnization of marriage under s. 92(12)” (par. 37).

(28) “Statement by Stephen Harper on the introduction of Liberal same-sex marriage legislation,” 1 February 2005.

(29) Cristin Schmitz, et al., “Same-Sex Bill Fuels Fierce Debate,” Calgary Herald, 2 February 2005, p. A1.

(30) “Open Letter to The Hon. Stephen Harper from Law Professors Regarding Same-Sex Marriage,” accessible on line via the University of Toronto Faculty of Law Web site, at
http://www.law.utoronto.ca/samesexletter.html.

(31) Bill Curry and Gloria Galloway, “Same-sex bill finally passes: After bitter two-year political battle, divisive legislation moves to Senate,” The Globe and Mail [Toronto], 29 June 2005, p. A1; John Ivison, “An inevitable end, reached painfully: The next vote on the issue may well be at the polls,” National Post, 29 June 2005, p. A4.

(32) Jason Fekete, “Klein gives up same-sex marriage battle: Gay groups hail surprise victory,” Calgary Herald, 13 July 2005, p. A5; Leanne Dohy, “Klein wants to protect right not to wed gays,” Calgary Herald, 31 July 2005, p. A6.