all likelihood, Canada's highest court will agree that the opposite-sex definition
of marriage is unconstitutional ... The recognition in law of same-sex marriage
is about fair play, equality, inclusiveness, and justice, values that are consistent
with our government's commitments."
"Quebec's civil registry fails to address the fundamental concerns of equality and fairness at the heart of this issue."
Legal - Canada
May 6, 2003
beginning of the end of discrimination
An internal document from the National Liberal Caucus Research Bureau, dated March 31, 2003, became public this week. Written prior to the B.C. Court of Appeal decision, the Ottawa Citizen reported today that the paper was distributed last week to Liberal members of the Standing Committee on Justice and Human Rights, just as the committee nears its conclusion of hearing testimony from across the country.
The document, posted in its entirety below, reveals that the government understands it must give same-sex couples access to full and equal marriage. It does not explain why the government has wasted time and resources in having the committee examine the issue, nor does it explain why the government continues its costly, losing campaign in court.
The Standing Committee on Justice and Human Rights is examining the issue of legal recognition of same-sex unions. One approach that many Canadians think has merit is the creation of a federal civil registry system. This approach is fraught with complications.
Must Parliament examine this issue?
Yes. Three provincial courts (British Columbia, Ontario and Quebec) have ruled that the federal common-law definition of marriage - "the union of one man and one woman to the exclusion of all others" - violates the constitutional right to equality of same-sex couples under the Charter of Rights and Freedoms. All three decisions are now under appeal. In all likelihood, Canada's highest court will agree that the opposite-sex definition of marriage is unconstitutional. A June 1999 Angus Reid poll found that 53 percent of Canadians agreed with legal recognition of same-sex marriage. The recognition in law of same-sex marriage is about fair play, equality, inclusiveness, and justice, values that are consistent with our government's commitments.
What did Quebec do?
In 2002, Quebec created a civil registry for both same-sex and unmarried opposite-sex couples (An Act instituting civil unions and establishing new rules of filiation). This new "civil union" option ensures that all registered couples are subject to the same rules as married heterosexual couples.
Should the federal government emulate the Quebec civil registry?
No. Quebec's civil registry fails to address the fundamental concerns of equality and fairness at the heart of this issue. This "separate-but-equal" treatment would maintain the exclusion of same-sex couples from the institution of marriage. If even one person is not satisfied that he or she is being granted equal treatment, they could trigger a challenge to the Supreme Court.
Two of the three provincial courts (Ontario and Quebec) made this point in their rulings. In the Ontario ruling, Justice Laforme stated:
"[...] This case is about access to a deeply meaningful institution - it is about equal participation in the activity, expression, security, and integrity of marriage. Any alternative to marriage, in my opinion simply offers the insult of formal equivalency without the Charter promise of substantive equality." [Emphasis added]
In the Quebec ruling, Justice Lemelin stated:
"[...] they can have their union officially recognized by registering it [...] but we continue to deny them access to marriage, an important institution in our society." [translation]
Under the Constitution's division of powers, the federal government has the authority to define marriage. The provinces and territories have exclusive powers to legislate on matters regarding the "solemnization" of marriage. Registration is a part of solemnization. Given provincial and territorial jurisdiction over solemnization, it would be argued by some that the federal government does not have the authority to create such a status.
Would the rights and obligations flowing from a federal registry apply to provincial and territorial statutes?
No. Even if it was determined that the federal government does have the legislative power to create such a registry, this regime would be limited to federally recognized rights and obligations. Full agreement by all jurisdictions would be necessary to ensure that couples obtain the benefits to which they are entitled by both levels of government.
So a federal registry would need complementary provincial and territorial legislation?
Yes. This is important when we consider the portability of a civil union regime. In the event of the dissolution of a federal civil registered union, same-sex couples would be deprived of the protection afforded to married couples with respect to their provincially and territorially recognized rights to support, division of property, and parental responsibility. Were same-sex couples to move to a province or territory that does not recognize their union, they could claim discrimination.
Why are civil registries in other jurisdictions successful?
These registries work because the jurisdictions that created them are not hampered by a constitutional division of powers (as is the government of Canada).
Is Quebec the only jurisdiction to do this?
No. Nova Scotia legislated domestic partnership registration for same-sex and opposite-sex couples in 2001. In August 2002, Manitoba passed a law that provides for the creation of a civil registry regime (although it has yet to be brought into force). Denmark (1989), Norway (1993), Greenland (1994), Sweden (1995), Iceland (1996), France (1999) and the state of Vermont (2000) all have registered partnership regimes available to same-sex couples.
Do any jurisdictions give legal recognition to same-sex marriages?
Why not leave marriage to religious institutions?
Religious institutions would still need Ottawa's help and authority, triggering again the constitutional hurdle to reach agreement with all the provinces and territories. Religious institutions cannot do it alone; their marriages could not be legally recognized without registration. The federal government - because it is the authority that defines marriages and since common law already has a definition of marriage - would necessarily be the level of government that would register couples under this new system. Ottawa would then have to convince all the provinces and territories to agree to change their laws governing solemnization. As stated earlier, full agreement by all jurisdictions would be necessary to ensure that couples obtain the benefits to which they are entitled.
Further complications would arise in cases of divorce, which religious institutions would not be able to deal with on their own. Any registry would have to provide for the effects of dissolution. Parliament could be open to criticism for not ensuring that the best interests of children are taken into consideration during the dissolution of a conjugal relationship, as would be the situation in cases of divorce.
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