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Advocacy News - Not simply divine - Part One: Canada

May 7, 2021

Not simply divine
Human rights and same-sex marriage

By R. Douglas Elliott,* B.A., J.D. 

Part One: Canada

The movement for gay and lesbian equality in Canada was inspired by its American counterpart. That movement was in turn inspired by the women’s rights and African American civil rights movements, and outstanding leaders like John F. Kennedy Jr., Robert Kennedy and the Rev. Martin Luther King Jr.

Canada’s answer to John F. Kennedy Jr. was Prime Minister Pierre Elliott Trudeau. Trudeau modernized Canadian society, including legalizing consensual adult sodomy and liberalizing divorce. We can thank the USA for its hand in shaping Trudeau’s ideas, for he received a Master’s degree in law at Harvard. Trudeau was an admirer of Thomas Jefferson and John Adams, and the ideas that had informed the U.S. constitution, especially the idea of constitutional equality protection for minorities. The result, almost 200 years after the American Bill of Rights, was Canada’s Charter of Rights and Freedoms in 1982.[3] This constitutionally entrenched bill of rights included in section 15 an equal protection guarantee modeled on the American concept.

Even before the Charter, Canada had begun to move into the modern era of recognizing the equality rights of gays and lesbians. The City of Toronto passed the first anti-discrimination ordinance in 1973. The province of Quebec passed the first anti-discrimination law at the provincial level in 1977. Gays and lesbians in Canada began using the new Charter to assert their rights to equality through the Court.

A series of landmark court decisions accelerated the process of legislative reform and set the stage for the recent marriage decisions. In Egan, the Supreme Court of Canada found that sexual orientation, although not expressly listed, should be interpreted to be included in our equal protection guarantee.[4] This is similar to the conclusion Justice O’Connor reached in respect of the American Bill of Rights in the US Supreme Court in Lawrence v. Texas.[5] In Vriend v. Alberta, the Court ruled that legislatures needed to act to protect gays and lesbians from discrimination and added sexual orientation to Alberta’s anti-discrimination statute.[6] Finally, in M. v. H., the Canadian Supreme Court ruled that the extensive legal recognition offered by Ontario to unmarried long term opposite sex couples must be offered to similar same-sex couples.[7]

Marriage for same-sex couples is a question of capacity to marry. Under our Canadian constitution, it is a matter of federal and not provincial law. The exclusion of same-sex couples from marriage rested on a 19^th century English court decision that was passing judgment on a polygamous American heterosexual marriage.[8] Parliament has never acted in Canada to define marriage.

The Parliament of Canada reacted to the aforementioned Court decisions by passing the Modernization of Benefits and Obligations Act.[9] This act extended nearly complete recognition of same-sex couples under most federal laws. There was a clause added during the legislative debates that confirmed Parliament’s understanding of the opposite sex nature of marriage, and that Parliament was not intending under the Bill in question to tinker with that definition.

(b) Same-sex Marriage in Canada

On January 14, 2021, a male same-sex couple and a female same-sex couple were married at the Metropolitan Community Church of Toronto pursuant to the publication of banns. This process is recognized under Ontario law as an alternative to the issuance of a license by the local municipality.[10] On June 10, 2003, the highest Court in Ontario, the Ontario Court of Appeal, recognized the legal validity of these weddings.[11] As a result, these weddings become the first legal same-sex marriages in the world, preceding the Dutch marriages by several months. Sexual orientation discrimination in Canadian marriage law was brought to an end.

Three initial legal challenges were filed in Quebec, British Columbia, and Ontario. The Quebec trial decision was successful, and was initially being appealed to the Québec Court of Appeal. The federal government abandoned its appeal, but religious interveners (amici) tried to carry on with the appeal. In early 2004, the Quebec Court of Appeal dismissed the appeal, and same-sex marriage became a reality in Quebec. The British Columbia Court of Appeal has also ruled in favour of marriage for same-sex couples, and the federal government announced it would not appeal that decision.[12] The Ontario Court of Appeal unanimously ruled in favor of marriage for same-sex couples, and the federal government announced that it would not appeal that decision.[13] Since the Ontario decision of June 10, 2021 was actually the first to grant immediate access to same-sex marriage, and has received the most attention, it is the one I will discuss here.

The Court based its decision on the notion that there had been a prior common law bar to marriage for same-sex couples. However, the common law definition violated our equal protection guarantee. The Court rejected the argument that the exclusion could be justified based on the assertion that marriage was for the purpose of procreation. It also rejected arguments that marriage was something that could not be re-defined to include same-sex couples, and an argument that marriage for same-sex couples would infringe on the religious liberties of opponents of same-sex marriage. The Court expressly recognized the legal validity of the marriages that had taken place at the Church in 2001.

The Justice Committee of the House of Commons, which had been studying this question, subsequently voted to recommend to the Executive branch of government that there be no appeal of this decision.[14] It is interesting to note that the majority of Canadians who appeared before the Committee had supported the change.[15] The Attorney General of Canada then announced that the Government would accept the Ontario ruling and would not appeal the decision to the Supreme Court of Canada. The Prime Minister noted that Canada has been in the vanguard of human rights. The Attorney General of Canada rejected suggestions that alternatives such as civil unions be considered. As he stated, “almost equal is not equal” and “anything less than full marriage is discrimination.”

The Government then announced that they would bring forward a Bill clarifying that the Ontario decision applies across Canada. The Bill would also be submitted to the Supreme Court of Canada in a special process called a reference, where the Supreme Court would be asked to pronounce a non-binding legal opinion on the validity of the new law.[16]

Efforts were made in the fall of 2003 to reverse the course that Canada has taken. In September, 2003, the opposition in the House of Commons introduced a motion re-affirming the former definition of marriage and calling on the Government to use “all means necessary” to preserve the then-current definition of marriage. This motion was defeated on a free vote.[17] Conservative interveners (amici) in the Ontario case, including the Canadian Catholic bishops, brought a motion before the Supreme Court of Canada to be substituted for the Federal Government for the purposes of appealing the Ontario ruling. That motion was heard on October 6, 2003, and dismissed by the Supreme Court on October 9.[18]

Since that time, similar rulings have been granted by Court in the Yukon Territory, and in the provinces of Manitoba, Nova Scotia, and Newfoundland and Labrador [and Saskatchewan].[19] The Canadian Government sought an advisory opinion from the Supreme Court of Canada on the legality of its proposal to introduce a Bill to extend equal civil marriage to same sex couples. The Supreme Court of Canada, in a unanimous opinion, approved of the Government’s proposed Bill.[20] The Court noted that the former common law definition, with its imbedded reference to “Christendom”, reflected a bygone age when there was a social consensus on the co-equal boundaries of the legal and religious limits of marriage. However, accepting the position taken by a number of organizations including my client, the Court decline to comment on the correctness of the earlier court rulings that had changed the legal definition of marriage in effect in places like Ontario. The Court noted that the Government was committed to its course of action regardless of the opinion expressed, and the potential for social disruption if any doubts were cast on those rulings given that so many couples had married in good faith on the strength of the validity of those rulings. In a rare exercise of their discretion to do so, the Court declined to say whether the change was required by the equality guarantee of the Charter, but sated in strong language that it was permitted and that uniformity of the law across Canada was desirable. In this regard, they made it very clear that provinces would have no right to take a different course. They confirmed that clergy would be able to rely on the Charter to protect them from being compelled to marry same-sex couples.  The Canadian Parliament is now considering a Bill, Bill C-38, which would extend the right to same sex marriage to those few Canadian provinces and territories that do not presently enjoy that right.[21]

It is also important to bear in mind that under the Canadian Constitution, Parliament has the power to override this decision by invoking the “over ride” power contained in section 33, should they choose to do so. As a result, the final decision always rests with our elected representatives.

Canadians are largely content with this approach. We relish the opportunity to play a leadership role on an important human rights issue. It must be observed that those who oppose this reform on religious grounds are the same groups who have opposed every reform aimed at improving the human rights of gays and lesbians. For example, the Catholic Bishops opposed the addition of sexual orientation to Ontario’s human rights code when that was done in 1986.

Thousands of same-sex couples have married in Canada since June 10, 2021. Canada has no residency or citizenship requirements for marriage. As a result, hundreds of American gay and lesbian couples have also been married in Canada. Indeed, we have welcomed couples from all over the world, from as far away as Australia and Hong Kong[22]

(c) Equality 1, Pope 0

There was a “backlash” in Canada. The Vatican issued a blistering attack on legal recognition of same-sex relationships, and directed Catholic politicians to support official Church dogma. We were treated to the spectacle of our Catholic Prime Minister being told publicly by Catholic bishops that he must comply with the Vatican position or risk eternal damnation. The Prime Minister at the time, Jean Chrétien, quite rightly stated that his legal obligation was to uphold the Constitution, and his personal beliefs were between him and God. His home province of Québec has the largest percentage of Catholics in Canada, and support for marriage for same-sex couples is highest there.

Following the Ontario Court of Appeal’s ruling, we had elections at both the provincial level and the federal level. In Ontario, the provincial Conservative Party’s leader expressed doubt about the morality of marriage for same-sex couples. The Ontario Liberal Party’s leader supported marriage for same-sex couples as a human rights matter, despite his Catholic faith. The Liberal Party won a landslide victory.

At the federal level, the governing Liberal party stressed its unqualified support for same-sex marriage. The Conservative opposition leader claimed to favour equality for gays and lesbians, but advocated a free vote on the subject of same-sex marriage. The Liberals were re-elected, albeit with a reduced number of seats. Recent polls suggest that support for same-sex marriage in Canada remains strong, although there are the typical divisions seen based particularly on age and education. 

We have a minority government in power in Ottawa, but the Bill passed first reading by a comfortable margin. Even the main opponents say they have no intention of using the constitutional “over ride” clause to un-do what has been done, although they do not support civil unions rather than the proposed extension of equal marriage. The only real concern about the Bill is whether the current regime will collapse under the weight of unrelated financial scandals before the Bill is passed. Perhaps reflecting that possibility, a new legal action is underway in New Brunswick that will doubtless succeed.

Same-sex marriage is a legal reality in Canada. There is no going back.