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SAME-SEX MARRIAGES (SSM) IN CANADA

TIME LINE: COURT & GOVERNMENT ACTIONS

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1993: Rejection of gay and lesbian marriage:

In 1993, a gay couple brought a lawsuit against the Canadian government. They had been denied a marriage license in Ottawa, ON. One was Canadian and the other was American. Their suit did not succeed, and the US citizen was required to leave Canada.

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1996-APR: Recognition of same-sex partnerships fails:

A private member's bill was introduced into the Federal Parliament on 1996-APR-26 which would have recognized same-sex partnerships and guarantee them the same rights as are given to heterosexual married couples. Historically, private member's bills are almost never passed; this one died without being voted upon.

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1996-MAY: Federal anti-discrimination law:

The ruling Liberal Party had promised for years to amend the Human Rights Act to eliminate discrimination based on sexual orientation. The party's reputation was beginning to suffer due to their inaction. In 1996-MAY, after a free vote of 153 to 76, the House of Commons changed the act. Two amendments were defeated. One would have exempted schools and churches; the other would have prevented the act from being used to promote same-sex benefits or affirmative action based on sexual orientation. The defeat of the former amendment is unusual; usually religious institutions are allowed complete freedom to discriminate on the basis of gender, race, religion, sexual orientation, or on any basis that they feel is justified by their belief system. The country's two largest Protestant denominations, the United Church of Canada and the Anglican Church of Canada, supported the act. The law covers only about 1 million employees of the Federal government and regulated businesses. However, with the exception of Alberta, Newfoundland, the Northwest Territories and Prince Edward Island, most provinces had already passed similar legislation. Although same-sex marriages were not permitted in Canada at that time, this modification of the Human Rights Act is a major precursor to the full recognition of homosexual relationships in 2005.

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1997: British Columbia government recognizes gay civil unions:

The NDP (Socialist) government of the province of British Columbia passed two new spousal benefits laws in 1997-JUL that would expand the definition of "spouse" to include same-sex couples. Bills 31 and 32 recognize "the marriage-like relationship between persons of the same gender" in the Family Relations Act and the Family Maintenance Enforcement Act. Gay and lesbian couples received the same legal status with regards to child custody, maintenance and access as would "common-law" heterosexual couples. More details.

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1997: Gay marriage: Dube & Gambora case:

Martin Dube, a Canadian, and Manuel Gambora, a Mexican, are a gay couple. They filed a lawsuit seeking the right to have their marriage registered. They were married in Canada in a religious service on 1997-NOV-4. Gambora has lived in Montreal, Quebec, Canada for the past three years. Unfortunately, his visitor's visa expired on 1997-NOV-24, and he had to return to Mexico.

The couple's lawyer, Stephane Gendron, believes that Canada's Charter of Rights and Freedoms takes precedence over Quebec's Civil Code. The former bans discrimination on the basis of gender and sexual orientation. The latter requires married spouses to be of opposite gender.  1

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1997 to 2002: Quebec gay marriage: Hendricks & Leboeuf case:

Michael Hendricks, 57, and René Leboeuf, 43, are a gay couple who have been living together for 28 years. In 2001, they decided to get married. but were refused a license. Their lawyer, Stephane Gendron,  immediately filed a request to challenge the law in the courts. They expected to take their case to the Supreme Court of Canada.

On 2001-NOV-8, hearings began at the Montreal Palais de justice. On 2002-SEP-6, the court ruled that the denial of marriage to same sex couples was a violation of their fundamental human rights. The court gave the federal government two years in which to modify the marriage act to allow gays and lesbians to marry. More details.

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1998: Recognition of gay and lesbian partnerships among immigrants:

On 1998-JAN-6, Lucienne Robillard, minister for Citizenship, Immigration and Refugees issued the results of a study by the Immigration Legislative Review Advisory Group. It contains 172 recommendations for reform. One would give homosexual partners and heterosexual common-law couples immigration rights equal to those of heterosexual married couples. The recommendations were be exposed to review at public meetings which started on 1998-FEB-27. The extension of rights to gay couples is consistent with Canada's recent policies of extending refugee status to gays and lesbians who have been persecuted in their country of origin because of their sexual orientation. Canada is a world leader in this area.

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1999-JAN: Federal government says it will change laws:

Overview: Canada, like most largely English speaking countries, has an immense body of law that grants special rights to heterosexuals. These same rights are denied to homosexuals. Gay and lesbian groups have counted 58 separate pieces of Federal law that deny gays and lesbians equal human rights. In 1998-DEC, the Foundation for Equal Families announced that it would sue the government in a class action lawsuit. The following month, perhaps in response to the threat of a lawsuit, the government announced that it will shortly change 38 laws to grant all Canadians equal treatment. The Federal government announced on 1999-JAN-19 that it is planning sweeping changes to dozens of pieces of legislation in order to correct this inequality.

Details: The law structure of Canada is quite different from that of the U.S. The country has a Criminal Code that defines law for 10 provinces and 2 territories. It has innumerable statutes that affect every Canadian. In comparison, most laws in the United States that discriminate against gays and lesbians is the responsibility of the individual states. As an example, at the turn of the century, all 50 states had laws on the books that provided severe jail sentences for homosexual sexual activity. 50 separate campaigns have had to be mounted to overturn these laws - one in each state. The process was only finished in 2003. But in Canada, only a single modification to the Criminal Code at the Federal level was needed to decriminalize sexual activity between persons of the same gender.

Recent Canadian court decisions have consistently ruled in favor of equal rights for homosexuals. The government has been required to change many of its discriminatory statutes. In 1998, the Federal government lost the Rosenberg case in which the Ontario Court of Appeals declared that the Income Tax Act was unconstitutional. They ordered the government to change the law so that widowed same-sex partners could collect survivor benefits. The government didn't even bother to appeal the case to the Supreme Court. They knew in advance that they would lose.

The Federal Liberal party  had promised gay and lesbians groups for many years that significant changes would be made to legislation in order to end the current special privileges granted to heterosexuals. But no action was ever taken. As in the U.S., those who are strongly opposed to equality outnumber are well organized. So, any change in the law would probably cause the Liberal party to lose a significant number of votes in the following election.

In 1998-DEC, Foundation for Equal Families, a Les/Gay group, announced that it was initiating an unprecedented action against the Federal government. It planned to bring a single class action lawsuit on behalf of all of the homosexuals in Canada, which simultaneously attacked 58 pieces of discriminatory legislation. The government did not directly respond to the action.

In early 1999-JAN, Immigration Minister Lucienne Robillard announced that her department would change its regulations to treat same-sex immigrant couples the same as heterosexual couples. There was "very little evidence of a backlash" 3 to this decision. The lack of reaction by conservative religious groups may have strengthened  the resolve of the government to right an historic wrong. They decided to bring forth new legislation and make changes to existing regulations in order to treat same-sex couples in the same way as common-law heterosexual couples. An unidentified government source said: "The government has to deal with this sooner or later. It's unavoidable." David Corbett, a lawyer for the Foundation for Equal Families, said that the group is willing to drop the court action if the government voluntarily makes changes under a set time line.

Again, gay marriages in Canada were not legalized as a result of these changes. However, they are a major step forward towards that goal.

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1999-MAY: Majority of public support same-sex marriage:

The Angus Reid Group conducted a public opinion poll among 1,500 Canadian adults, nation-wide. Pollsters asked the question: "Do you think homosexual couples who wish to marry should or should not qualify for legal recognition of the marriage?" They found that 53% of Canadians support legal gay and lesbian marriages; 44% oppose them; 3% didn't know or were undecided. The margin of error is 2.5%. Among women, support was stronger (56% in favor, 41% opposed, 3% undecided). 66% of the subjects aged 18 to 34 favored equal marriage rights. But only 32% of those over 54 were supportive. 

The pollsters also asked: "Do you think gays and lesbians should or should not be entitled to spousal benefits?" 63% agreed that they should receive spousal benefits; 35% were opposed; 2% were undecided or didn't know. More details and information on other polls.

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1999-JUN - House of Commons states opinion rejecting same-sex marriage:

On 1999-JUN-10, the House of Commons approved a statement of opinion by a vote of 216 to 55. It states: "That, in the opinion of this House, it is necessary, in light of public debate around recent court decisions, to state that marriage is and should remain the union of one man and one woman to the exclusion of all others, and that Parliament will take all necessary steps to preserve this definition of marriage in Canada."

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Sponsored link:

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2000-DEC to now:   Ontario Gay and Lesbian marriages: Vautour & Vautour, Donnelly & McDowall, and Bourassa & Varnell cases. A long path towards equality:

Gays and lesbians have repeatedly been refused marriage licenses in Ontario. However, there appeared to be an ambiguity in the province's marriage act which some lawyers felt might permit SSM. A lesbian couple, Elaine Vautour and Anne Vautour, and a gay couple Kevin Bourassa and Joe Varnell attend the Metropolitan Community Church in Toronto ON. Both couples had their banns read during 2000-DEC and 2001-JAN. The banns are an ancient religious tradition that bypasses the need for a marriage license.

In an editorial on 2000-DEC-7, the Toronto Star commented: 

"...public attitudes are evolving. Marriage is not the societal mainstay it once was. Millions of couples choose to live in common-law relationships. Four out of every 10 legally married couples end up divorcing....Toronto's Christian gay community has taken a bold and provocative step. It will make a lot of people uncomfortable. But this is often how progress begins." 4

The two couples were married on 2001-JAN-14 by senior pastor Rev. Brent Hawkes. However, the Government of Ontario refused to register the marriage. The two couples' cases were combined with a second case involving four other couples into a single court hearing, which started on 2001-NOV-5.

On 2002-JUL-12, the Ontario Superior Court unanimously ruled that the current provincial legislation defining marriage is unconstitutional because it denies gays and lesbians "the autonomy to choose whether they wish to marry. This in turn conveys the ominous message that they are unworthy of marriage." They instructed the Ontario and Federal governments to change their marriage laws to allow gays and lesbians to marry. The court gave the legislatures 24 months to complete the task. The governments appealed the ruling.

On 2003-JUN-10, the Ontario Court of Appeal decided that SSM must be immediately made available in Ontario. Michel Leshner, 55, and Michael Stark, 45, a gay couple who had been together for over two decades, were married that afternoon.

Details of the court hearing, the decision, and reaction to the decision are located elsewhere on this web site.

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2001-FEB: Private member's bill introduced:

On St. Valentine's day (FEB-14), MP Sven Robinson introduced a private member's bill to Parliament that would allow gays and lesbians to enter into civil marriages. Sven is a member of the New Democratic Party, a socialist party, and is openly gay. In common with almost all private member's bills, this one did not proceed.

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2001-JUL: Gays can adopt in Nova Scotia:

A lesbian couple successfully petitioned the court in 2000-OCT because the Nova Scotia government had refused to grant them the status of parent. According to the Toronto Star: "The ruling means the children of unmarried common-law couples will now be able to register their relationships with both parents, inherit under the Intestate Succession Act and receive maintenance from both parents." Justice Deborah Gass said in her ruling that families are an essential part of the democratic society and can't be restricted on the basis of the parents' sexual orientation. "Prohibiting a joint adoption where all the evidence indicates these adults are providing optimum care and loving...defeats the very purpose of the legislation." This ruling means that Nova Scotia joins Ontario, British Columbia and Alberta in allowing same-sex couples to adopt. 5

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2001-JUL: Couples launch petition in British Columbia:

Eight same-sex couples who were denied marriage licenses launched a petition to overturn the federal Marriage Act because it allows marriages only between a man and a woman. The couples' lawyers argued that the Marriage Act violates gays' and lesbians' right to equal treatment under the Charter of Rights and Freedoms by denying them official marital status. A petitioner, Murray Warren, said: "We are less than full citizens and I want full citizenship." The Supreme Court of British Columbia heard arguments during 2001-JUL and AUG. More details.

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2001-JUL: British Columbia court denies petition:

Justice Ian Pitfield ruled on 2001-OCT-3 that the government does discriminate against gays and lesbians in marriage. However they are justified in doing so. He also ruled that courts can only make small changes to laws. Allowing same-sex marriage would be beyond the court's jurisdiction. The case was appealed to the British Columbia Court of Appeal. More details.

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2001-DEC: Law commission report:

The Law Commission of Canada issued a 2001-DEC study titled "Beyond Conjugality: Recognizing and supporting close personal adult relationships." They concluded that restrictions on same-sex marriage are discriminatory. They wrote, in part: "The state's interest in marriage is not connected to the promotion of a particular conception of appropriate gender roles, nor is it to reserve procreation and the raising of children to marriage. The state's objectives underlying contemporary regulation of marriage relate essentially to the facilitation of private ordering: providing an orderly framework in which people can express their commitment to each other, receive public recognition and support, and voluntarily assume a range of legal rights and obligations. As the Supreme Court of Canada recognized in 1999 (M. v. H.), the capacity to form conjugal relationships characterized by emotional and economic interdependence has nothing to do with sexual orientation. If governments are to continue to maintain an institution called marriage, they cannot do so in a discriminatory fashion. Accordingly, the Report recommends that Parliament and provincial/territorial legislatures move toward repealing legislative restrictions on marriages between persons of the same sex." 6,7

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2002-NOV-7: Federal government discussion paper:

The Justice Department has written a discussion paper which suggests three options for the recognition of same-sex relationships. More details

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2003-MAY-1: British Columbia Court of Appeal reverses lower court decision:

The Court of Appeal determined that the existing federal marriage act is discriminatory against gays and lesbians and is unconstitutional. The court gave the federal government until 2004-JUL-12 to rewrite the act. This means that all three courts addressing same-sex marriage -- in Quebec, Ontario and British Columbia -- have unanimously delivered identical rulings in favor of same-sex marriage. More details

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2003-JUN-10: Ontario Court of Appeal authorizes same-sex marriage:

The Court of Appeal affirmed a lower court ruling and ordered the Province of Ontario to issue marriage licenses and recognize marriages by gay and lesbian couples. This is the third political jurisdiction to authorize gay and lesbian marriages, following the Netherlands and Belgium. More details.

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2003-JUN-17: The Federal Government throws in the towel:

The Liberal cabinet decided to accept the inevitable by deciding to rewrite the marriage act to allow same-sex couples to marry across Canada. They planned to write a draft version of the changes and submit them to the Supreme Court of Canada for review.

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2003-JUL-8: British Columbia Court of Appeal authorizes same-sex marriage:

The Court ordered the British Columbia government to start issuing marriage licenses immediately and record marriages of same-sex couples. They felt that it is improper to allow SSM in Ontario while prohibiting it in British Columbia.

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2003-DEC-18: Federal government decides to explore all options:

A new prime minister, Paul Martin, took office on DEC-12. He reaffirmed on DEC-18 that gays and lesbians who want to marry will not be discriminated against under new legislation to take effect across all of Canada. But, before finalizing the draft legislation, the government will ask the Supreme Court of Canada whether a Vermont-style civil union that would give separate but equal privileges to gays and lesbians would meet the requirements of Canada's constitution. 8

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2004-JAN-28: Federal government asks new question of the Supreme Court:

The federal government has asked the Supreme Court of Canada a new question: is the present marriage law which restricts marriage to one man and one woman constitutional? If not, in what particulars and to what extent is it unconstitutional.

The stakes are raised somewhat. If federal legislation is created which disallows same-sex marriage, there will be thousands of same-sex married couples by early 2005 who might be adversely affected. 9

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2004-JUL-14: Yukon Supreme Court legalizes same-sex marriage:

Justice Peter McIntyre of the Yukon Supreme Court issued a ruling that followed the precedence set by senior courts in British Columbia, Ontario and Quebec and ordered the territory to issue licenses to same-sex couples and register their marriages. More details.

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2004-AUG:-11 Lawsuit initiated in Nova Scotia:

Two same-sex couples have initiated a lawsuit to force the province to allow them to marry in the province. A third couple has joined in the lawsuit seeking to force the province to recognize their existing marriage. They were married in Toronto, ON, in 2003. Although the outcome of the case is obvious, the province refused to marry same-sex couples unless forced to by the courts. More details.

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2004-AUG-18: Federal justice minister throws in the towel:

Justice Minister Irwin Cotler has decided that the federal government will no longer ask the courts to defer decisions on SSM until after the Supreme Court of Canada issues a ruling in the federal government's reference. More details.

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2004-AUG-26:  Lawsuit initiated in Manitoba:

Three same-sex couples have challenged the Manitoba marriage law which prevents them from marrying in the province. Gord Mackintosh, the Manitoba Justice Minister has said that they will not oppose the couples. More details

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2004-SEP-16: Court OK's same-sex marriage in Manitoba:

Justice Douglas Yard of the Court of Queen's Bench noted that 12 or more other Canadian judges had already decided that excluding same-sex couples from marriage is a violation of Canada's Charter of Rights and Freedoms -- the country's constitution. He declared the marriage act in Manitoba to be unconstitutional and ordered the definition of marriage to be "reformulated to mean a voluntary union for life of two persons at the exclusion of all others." This is an all-time record on a SSM ruling for a court in Canada: three weeks.  More details

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2004-SEP-24: Court OK's same-sex marriage in Nova Scotia:

Nova Scotia Supreme Court Justice Heather Robertson handed down her decision in the morning of SEP-24. She upheld the marriage of the lesbian couple, Kim Vance and Samantha Meehan. They had previously registered their relationship in Nova Scotia. They went to Ontario to marry, and returned to continue living in Nova Scotia. Justice Robertson declared that "civil marriage between two persons of the same sex is therefore lawful and valid."  More details.

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2004-SEP-30: Lawsuit initiated in Saskatchewan:

Two same-sex couples initiated a lawsuit to make SSM available in the province.

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2004-NOV-05: Court OK's same-sex marriage in Saskatchewan:

Madam Justice Donna Wilson of the Family Law Division of the Court of Queen's Bench sided with courts in five other provinces and one Canadian territory. She ruled that existing provincial laws discriminated against same-sex couples. She wrote: "The common-law definition of marriage for civil purposes is declared to be 'the lawful union of two persons to the exclusion of all others'." This was not much of a surprise, because neither the provincial nor the federal government intervened in the case.  More details.

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2004-DEC-21: Court OK's same-sex marriage in Newfoundland / Labrador:

Justice Derek Green of the Supreme Court of Newfoundland took only one day before he declared same-sex marriage legal in Newfoundland and Labrador. In a unique development, the federal government supported the plaintiff's lawsuit. One of the two lesbian couples who initiated the lawsuit, Noelle French and Jacqueline Pottle were married on DEC-23 by Andy Wells, the mayor of St. John's.  More details.

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2005-FEB-01: Federal government introduces bill C-38 to make SSM available to all:

By the end of 2004, SSM was available in seven provinces and one territory, which make up about 87% of the total Canadian population. In FEB-01, the Federal Government introduced Bill C-38 to make marriage available to every couple in Canada -- whether same-sex or opposite-sex. The bill defined marriage as a union between "two persons." It also makes minor amendments to eight other existing federal laws. Justices of the highest courts in British Columbia, Ontario and Québec have unanimously ruled that SSM is required by the Charter of Rights and Freedoms. By not appealing the ruling to the Supreme Court of Canada, those rulings have become binding on the federal government. Still, a sizeable minority of Members of Parliament are expected to violate their oath of office -- which requires them to uphold the Constitution -- by voting against the bill. An amendment to C-38 which would have banned SSM and given same-sex couples access to a parallel system of civil unions was defeated on APR-12. Debate on the bill's third and final reading is currently underway.

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2005-FEB-24: The Ontario Legislature passes omnibus bill

The Ontario Legislature easily passed an omnibus bill which made minor modifications to 73 existing provincial laws. This brings them into alignment with the 2003-JUN-10 decision of the Ontario Court of Appeal which legalized same-sex marriage.

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2005-MAY-20: Lawsuit launched in Northwest territories

Jason Perrino and Colin Snow have launched a lawsuit against the government of the Northwest Territories over their right to marry.

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2005-JUN-23: New Brunswick legalizes SSM:

Court of Queen's Bench Justice Judy Clendenning ruled that SSM must be available in the province. She gave the government ten days in which to implement administrative changes. More details

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2005-JUN-28: House of Commons passes bill C-38:

The House of Commons passed bill C-38 by a comfortable margin: 158 to 132. It then proceeded to the Senate, which has remained in session into the summer in order to deal with the bill.

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2005-JUL-19: Bill C-38 passes the Senate:

The bill passed its final vote in the Senate by a vote of 47 to 21 with three abstentions.

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2005-JUL-20: Bill C-38 proclaimed as law:

Bill C-38 was signed into law on 2005-JUL-20 by the Chief Justice of the Supreme Court of Canada. The Governor General, who usually proclaims legislation, was incapacitated for medical reasons.

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2005-JUL-22: Government of Prince Edward Island refuses to allow SSM:

The PEI government concluded that it did could not issue marriage licenses to same-sex couples until after it passed some enabling legislation. It is alone among the provinces and territories of Canada. Such legislation is expected during early 2006.

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References:

  1. "Canada DP Immigration, and Marriage Lawsuit", NewsPlanet, 1998-JAN-7
  2. Reference lost
  3. Erin Anderssen, "Ottawa to enshrine same-sex rights," The Globe and Mail, 1999-JAN-20. Pages A1 & A5.
  4. "Test of marriage is commitment," The Toronto Star, Toronto ON, 2000-DEC-7, Page A36.
  5. Alison Auld, "Gays praise N.S. ruling," Toronto Star, 2001-JUL-10.
  6. "Gay couple rejects proposed Quebec law as alternative to marriage," Canoe.ca, 2002-MAR-22, at: http://www.canoe.ca/NationalTicker/
  7. "Parliament's Judicial Advisors Say Same Sex Marriage Should Be Legal," EqualMarriage.ca, at: http://www.samesexmarriage.ca
  8. "Same-sex debate urged: PM seeks study by Supreme Court," The Toronto Star, 2003-DEC-19, Page A6.
  9. Valerie Lawton, "Ottawa accused of same-sex delay," The Toronto Star, 2004-JAN-29, Page A7.

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Copyright © 1998 to 2005 by Ontario Consultants on Religious Tolerance
Latest update: 2005-NOV-20
Author: B.A. Robinson

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