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Equal Marriage and the Law in Canada

December 17, 2002

No Clause For Celebration
Standing Committee on Justice and Human Rights

The Standing Committee on Justice and Human Rights met at 3:38 p.m. on Wednesday, November 27, 2002, in Room 253-D, Centre Block, the Chair, The Hon. Andy Scott, presiding. Their purpose was to discuss how to respond to Ontario and Quebec court orders that demand the end of marriage discrimination.

Justice discussion paper on marriage:

In english

En français

Evidence - Nov. 27, 2002

En francais - Nov. 27, 2002

Confused about conjugality?

The discussion began with Vic Toews, politician from the anti-gay Canadian Alliance party, equating same-sex marriage with domestic arrangements between friends, or a parent-child relationship. "I would see them having more in common with same-sex relationships than with marriage," he said.

Lisa Hitch, Senior Counsel, Policy Sector, Family Children and Youth Section, Department of Justice, was the witness The Justice Minister's alternate realities for marriage - through the looking glass.of the day, and she reminded Toews that "in your situation of the mother and daughter ... if you give all of the same obligations as you would for a spousal relationship in the same way that you give all of the benefits, there might be a concern that if the daughter married and left the household, she would owe her mother support obligations under provincial family law," or the eligibility of benefits for the elderly mother might be impacted by the pooled income of her daughter.

Confused about case law?

Mr. Toews, the Alliance Party politician, confused matters further by injecting inaccurate interpretations of Supreme Court of Canada judgements.

"In 1995 there was the Egan decision, stating very clearly that marriages consisted of one man and one woman to the exclusion of all others; I believe it was a decision of Mr. Justice LaForest. For the justice department now to come out and say, well, we want to have a very neutral discussion here, and at the same time ignore in this public document--indeed, not even mention, when it's only seven years old--the leading case on what constitutes marriage, is something that I find surprising."

Mr. Toew is surprised because he is wrong. Justice LaForest was the minority judgment in Egan. His comments on procreation and marriage were expressly rejected by 5 judges of the Court. Besides that fact, his views are now seen as overruled by subsequent Supreme Court of Canada rulings in Vriend and M v H (in M v H, the procreationists were down to a minority of 1). "The Charter breach in connection with the impugned common law rule can only be remedied in one fashion ... The choice is to amend it to include gays and lesbians - as I believe it must - or to not amend it all."
Justice LaForme, Ontario marriage case decision (July 12, 2002)

"The religious right clings to LaForest's decision for dear life because they like what he said," Douglas Elliott told us, "but they are either deluding themselves or misleading others when they characterize his reasons as a binding ruling from the Supreme Court of Canada on marriage. I heard the learned justice himself publicly characterize his reasons as the minority opinion, and he should know. In Egan and M v H, the Supreme Court of Canada was careful to say it was not considering marriage but leaving that for another day."

While some people discount gay and lesbian relationships and deem them less worthy of recognition than opposite-sex couples, it seems that even our government is prepared to consider discounting our rights as well.

Confused about constitutional obligations?

Richard Marceau, from the supportive Bloc Québécois said that Canada was sending a message in appealing the Ontario and Quebec court decisions. "Although you claim the [marriage discussion] document you distributed to have no preference, one suspects you don't like the Ontario and Quebec decisions ..."

Ms. Hitch pointed to the unsuccessful B.C. marriage case to justify the government's ongoing fight against equality, and then she seemed to imply that the government was prepared to do far more than appeal the cases."We're no longer second-class citizens in this country and the time has come for change. My relationship is validated and nobody can say we're not a real family anymore."
Joe Varnell, The Globe and Mail, July 12, 2002

"In light of the divergent court decisions, the minister feels it's responsible to get the views of the appellate courts on the legal issues. At the same time, he [the Justice Minister] feels very strongly that the Constitution points out there is a role beyond the courts for Parliament to play in determining important social questions such as this, therefore the reference of the question to the parliamentary committee, at the same time as the appeals are proceeding."

That role, beyond the courts, that Ms. Hitch referred to, is the notwithstanding clause of Canada's constitution. A bludgeon that our government can use to clobber Canadian constitutional guarantees. It would be an extreme measure with immense impact.

"[C]an you tell us whether, today, the government is willing to commit to refrain from using section 33 of the Canadian Charter of Rights and Freedoms, i.e. the notwithstanding clause, to ensure that marriage is only recognized when it unites a man and a woman?" Mr. Marceau asked, perhaps not believing what he heard.

Ms. Hitch implied that the committee could choose to recommend that Parliament trash our constitutional rights.

"That wasn't my question," said Mr. Marceau. "My question was more direct: is the government, right now, ruling out the possibility of using the notwithstanding clause for same sex marriages?"

The government, Ms. Hitch insisted, doesn't have a plan or intend to show any leadership in managing human rights for gays and lesbians. They prefer to hide behind committees.

"Any "alternative" to marriage, in my opinion simply offers the insult of formal equivalency without the Charter's promise of substantive equality. Again, an alternative I find will only provide a demonstration of society's tolerance - it will not amount to a recognized acceptance of equality."
Justice LaForme, Ontario case

"On whether or not we as a government will use the notwithstanding clause, we would very much like to have the recommendations of this committee on that. At this precise time, if you're asking if we need to use the notwithstanding clause, again I would answer that because we have differing trial-level decisions in B.C., Ontario, and Quebec, the issue is not determined yet at the courts."

Clear choice: Equal Marriage or Discrimination

Another option for the federal government is to get out of marriage altogether, leaving marriage to religious institutions. But that would require provinces to agree with the federal direction, as the provinces are in control of how marriages are solemnized or performed.

"We would need their cooperation in this particular instance because of, as I mentioned, the constitutional division of powers," said Ms. Hitch. "If the federal government chose to no longer legislate in the area of capacity, the provinces would still have the ability to legislate in the area of solemnization. They could continue to solemnize marriages if they weren't interested in following the federal approach in this particular area, and this would lead to some significant legal difficulties."

"Let's be honest," Vic Toews said. "The options are: do you recognize traditional marriage or do you recognize same-sex marriage.

"I don't believe there was a question ..." Ms. Hitch trailed off.

"That's right," said Toews. "... clearly, if the minister thinks that Parliament has such a substantial role to play in this question, there is a clear remedy for this issue, and that is the use of section 33, the override clause. We don't have to go around hearing from Canadians if he's already determined where he's going to go and if he wants to maintain the traditional concept of marriage. He has his remedy. Either we go to the courts and ask them what they want, or Parliament speaks as it did two or three years ago in an overwhelming vote of 216 to 55 to retain the traditional definition of marriage.""One cannot avoid the conclusion that offering benefits to gay and lesbian partners under a different scheme from heterosexual partners is a version of the separate but equal doctine. That appalling doctrine must not be resuscitated in Canada four decades after its much heralded death in the United States."
Justice Linden (Egan v. Canada)

It was clear some members of this committee for justice and human rights were prepared to deny both justice and human rights to a targeted minority in Canada.


Members of the Committee present: Garry Breitkreuz, Chuck Cadman, The Hon. Hedy Fry, Ivan Grose, Derek Lee, Paul Harold Macklin, Richard Marceau, John McKay, Lynn Myers, The Hon. Andy Scott, Kevin Sorenson, Vic Toews.

Acting Members present: Massimo Pacetti for Paul Harold Macklin, Réal Ménard for Pierrette Venne.

In attendance: From the Library of Parliament: Philip Rosen, senior analyst.

Witnesses: From the Department of Justice: Lisa Hitch, Senior Counsel, Policy Sector, Family, Children and Youth Section.

Pursuant to Standing Order 108(2), a study on marriage and the legal recognition of same-sex unions.


The committee next met on December 2, privately, to discuss their budget. It was agreed that $62,500.00 would be adequate for their operational expenses. A travel budget for the committee was not disclosed.


You can write directly to your Member of Parliament or Senator, or send your views to the Minister of Justice at Room 100, 284 Wellington Street, Ottawa, Ontario K1A 0H8, or by e-mail at marriage@justice.gc.ca.

To make written and oral submissions to the Standing Committee on same-sex marriage, write to:

M. Partice Martin, Clerk
Standing Committee on Justice and Human Rights
House of Commons
Room 622, 180 Wellington
Ottawa, Ontario
K1A 0A6

Questions about the Committee process should be referred to the Committees Directorate, House of Commons, Ottawa, Ontario K1A 0A6 (Tel. (613) 992-3150). Click here for guidance about appearing before a committee.


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