Media coverage in mid 2003-JUN concentrated on what the
federal government's reaction would be to the 2003-JUN-10 unanimous ruling by
the Ontario Court of Appeal. This was the ruling that made marriage
to all adult couples, both opposite-sex and same-sex, but only within the
province of Ontario.
The government was also faced with a more immediate concern: the unanimous 2003-MAY-2 decision by the British
Columbia Court of Appeal. That ruling
stated that: "Civil marriage should adapt to contemporary notions of
marriage as an institution in a society which recognizes the rights of
homosexual persons to non-discriminatory treatment." The deadline
to appeal the British Columbia court ruling was 2003-JUN-30. If the federal
government hadn't appeal the decision by that time, they would be forced to
accept the ruling as valid.
2003-JUN-12: Justice Committee recommends acceptance of SSM: The House of Commons' Justice Committee
held a secret meeting. According to the Toronto Star: "Emotions on the justice
committee ran high yesterday after months of hearings on the issue and
days of closed-door meetings, where members have tried unsuccessfully to
hammer out a report."2 Svend Robinson, a
Member of Parliament (MP) from New Democratic Party, who is gay,
introduced a motion recommending that the government not appeal the
JUN-10 decision of the Ontario Court of Appeal. According to Focus on
the Family Canada:
Eight members: (five Liberal members, one NDP
member and two members from the Bloc Québécois)
supported the motion.
members (four each from the Liberal and Alliance parties) were
There was no representative present from the Conservative party.
However, the Ottawa Citizen newspaper stated that "MPs from
all parties" were present at the meeting, presumably including the
Both information sources reported accusations that the Liberal party
had stacked the committee at the last minute with MPs who were
sympathetic to same-sex marriage. The Ottawa Citizen reported
that, "Two Liberal MPs who are not on committee -- Sue Barnes and
Anita Neville -- said they were called at the last minute to hurry to
the meeting, but would not say who sent them. They replaced two other
Liberal MPs: Derek Lee who wants the government to continue fighting gay
marriage in the courts and Paul Macklin, the parliamentary secretary to
Mr. Cauchon and his representative on the committee." 2
If these accusations are correct, then it would seem that the Liberal
government favored acceptance of the court decision and intentionally
packed the committee to get the vote that it wanted to proceed.
Committee chairperson Andy Scott broke the tie by voting in
favor of the motion. However, the committee's advice that the
government not appeal the ruling to the Supreme Court comes with a
message: that the members of the House of Commons are hopelessly divided on
the matter. Scott said that he believes that it is Parliament's
responsibility to change the law, not the courts. According to Egale
Canada, "Committee Member Derek Lee (who would have voted against the
motion if he had arrived just seconds earlier) entered the room just as
the Chair was casting the deciding vote." 3
Derek Rogusky, spokesperson for the Fundamentalist Christian agency
Focus on the Family Canada commented, "It seems the MPs felt
pressure as a result of the court ruling, and failed to follow through
on their promises to protect marriage. With a vote this close on an
issue of this magnitude, it is clear Parliament as a whole must make the
final decision." 2
Svend Robinson said: "This is the first time in the Canadian
Parliament that a committee has spoken and said that gay and lesbian
people should be entitled to equality...It's long overdue."
Alliance Member of Parliament, Vic Toews, issued a statement saying: "It
is unfortunate that the majority of this Committee has simply decided to
allow the courts to determine how this important social issue should be
2003-JUN-12: Cabinet ministers respond to committee decision: Members of the Liberal cabinet usually project a
united front to the country. However, cabinet solidarity appeared to
crack over SSM:
Industry Minister Allan Rock, a former justice minister, solidly backed
the proposal that the government allow the court ruling to stand. He said
"I think we have the opinions of [three] senior appellate courts that
make it clear, and besides we have our own responsibility, quite apart
from the courts, to form our own judgments on these issues as political
leaders...Our own conclusion is buttressed by the courts, who have now
said clearly that equality requires that we recognize same-sex
marriages...Part of the responsibility of being in public life is to take
positions on controversial issues. The [Liberal] party has divergent
views; the [Liberal] caucus has divergent views; but that ought not to
stop us from doing what is right." 3
Justice Minister Martin Cauchon pleaded for more time to study the
issue. He said that he would have nothing new to say until after a cabinet
retreat on JUN-17. 5
2003-JUN-16: Justice Minister recommends path forward: CBC NewsWorld reported a rumor this evening that
Justice Minister Cauchon has decided to not appeal the decisions of the
three provincial appeal courts to the Supreme Court of Canada.
According to one government source, Cauchon called many cabinet
ministers on the eve of the caucus meeting. "There were a lot of
ministers who didn't need persuading. It became quickly evident there
was not much appetite for an appeal" to the Supreme Court. He
decided to make three recommendations suggestions to the federal cabinet on JUN-17:
To not appeal the decisions of the three appeal courts to the
To modify the marriage act to allow same-sex couples to marry.
To send a "reference" to the Supreme Court, to
check the government's proposed changes in legislation. This would take the form of a draft version of
the proposed legislation for review by the court, accompanied by some
2003-JUN-17:Prime minister announces
path forward: At a secret cabinet meeting in the Lester B. Pearson
building, most ministers urged that the government accept the rulings of
the Ontario and BC courts. Apparently nobody argued in favor of the
status quo -- keeping marriage between one man and one woman. They
suggested that the government introduce legislation to Parliament which
would change the marriage act so that same-sex couples would be able to
marry anywhere in Canada. They figured that there would be complaints
from some Canadians, but that the dust would settle before the next
anticipated federal election. Legal challenges would have been
inevitable. However they would have taken years to reach the Supreme
Court and be resolved. It is rumored that the ministers were split 60 to
40% over this issue, with the minority favoring the submission of a
reference to the Supreme Court. Prime Minister Jean Chrétien
sided with the minority. It was ultimately decided that the government
Draft a proposed revision to the marriage act which would allow
SSM. The draft would include protection for religious leaders who
refused to marry same-sex couples on religious grounds.
Submit the legislation in the form of a reference to the
Supreme Court of Canada who would be asked to give a non-binding
ruling on its constitutionality.
Make any needed changes to the draft legislation.
Submit the legislation to Parliament for a free vote.
An unnamed government source said that the decision by the Ontario appeal court "how
they nailed it, how it was framed, how it was written" was a pivotal
point for everyone in the caucus. It was a clear indication from the
court they didn't want to screw around with it any more....Asking [the
Ontario appeal court] to hold off implementation requires convincing
evidence of 'irreparable harm.' You have to basically say the sky's
going to fall -- It's a hard case to make. You're not likely to get it."
In the Canadian Parliament, members are
generally expected to vote according to the party line.
However, on ethical matters, like abortion and SSM, they
are sometimes allowed to vote according to their conscience in a "free"
vote. However, there remains considerable pressure on government members
to vote in favor of the legislation, and for the members of the
opposition parties to vote against it. A member's future political
career might be profoundly influenced by their vote. Meanwhile, cabinet
ministers are always expected to vote with the government.
reported on CBC NewsWorld that the federal government would not
appeal the British Columbia and Ontario court decisions to the Supreme
Court. He said that: "we'll be proposing
legislation that will protect the rights of churches and
religious organizations to sanctify marriage as they define it."
Traditionally, churches, synagogues, and other religious groups have
been free to discriminate against individuals on the basis of race,
gender, sexual orientation, etc. in matters of membership, ordination
and marriage. They will continue to have this freedom in the future.
The Prime Minister continued: "At the same
time, we will ensure that our marriage legislation includes and legally
recognizes the unions of same-sex couples." 1"
When asked by a reporter if the term "union" meant "marriage,"
he apparently found it difficult to actually use the "M" word. He
said, ambiguously: "There is evolution in the society , and according
to the interpretation of the courts, they concluded these unions should
be legal in Canada." 6,9
2003-JUN-18:Public hearings declared farce: Liberal Member of Parliament Pat O'Brien was one
of the MPs who took part on the Justice Committee's sampling of public
opinion. Their report was not quite ready to be published at the time
that the Prime Minister and the rest of the Liberal caucus decided to
proceed with same-sex legislation. O'Brien said: "I suspect it was a
farce all along. The justice minister had his mind made up and he tried
to engineer the result."
2003-JUN-28:Suggestion for civil unions, not marriage: Some Liberal members of Parliament were urging
the federal government to create a parallel system of civil unions,
similar to that found in Vermont, instead of widening the current
definition of marriage to include same-sex couples. Justice
Minister Martin Cauchon had earlier referred only indirectly to enshrining in law "the
definition as recognized by the courts." One unnamed senior
government source said "I think that when you look at the Ontario
Court of Appeal decision it's very clear about what violates the
Constitution and what needs to be done." Another source said: "It
will be a [re]definition of marriage that we're talking about, not some new
beast...You know what the court would say to that." The draft
legislation is expected to be sent to the Supreme Court of Canada
during 2003-JULY for an advisory, non-binding, opinion on its constitutional
validity. The text will include a section that will explicitly state "the
fact that marriage, or the civil marriage of gay couples does not in any
way impinge on the freedom of religions to celebrate marriage as they
see fit." Thus, religious institutions will be able to discriminate
in marriage on any grounds that it believes to be in accordance with its
beliefs. 8 Most will, at least initially, refuse to marry gay and lesbian
couples. This is in keeping with rules that various religious groups
have followed in the past. There have always been instances in which
church laws on marriage were more restrictive than the federal laws. For
Some churches refuse to marry first cousins, even though
the federal marriage act permits this.
The Roman Catholic church has refused
to marry paraplegic grooms because they were incapable of sexual
intercourse, and thus could not impregnate his bride.
The Roman Catholic church regards a marriage as only being valid if
the spouses plan to try to have children.
The author recalls an
incident in the mid 1950s in Toronto, ON, where an exhausted young
couple appeared at the doors of a Unitarian Congregation with a marriage
license seeking a clergyperson to marry them. Many Christian clergy in
the city had been already refused to marry them because they were a
mixed-race couple. After an interview to confirm their sincerity, the Unitarian minister agreed to
"Egale Action Update: On to Cabinet!," Egale Canada,
"Today's Family News," Focus on the Family Canada, 2003-JUN-13 to 15.
Chantal Hebert, "Opinion: Liberals dither on gay unions," The Toronto Star, 2003-JUN-13, Page A23.
Tonda MacCharles, "Canada to allow same-sex marriage," The Toronto
Star, 2003-JUN-18, Pages A1 (front page) and A22.
Tonda MacCharles, "Same-sex marriage backgrounder: Why Ottawa said
yes to making it legal," The Toronto Star, 2003-JUN-19, Page A4.
Tonda MacCharles, "Same-sex law to be clear: It's marriage. Liberals
to push beyond 'civil unions.' Draft bill to protect religious freedom,"
The Toronto Star, 2003-JUN-28, Page A1 (the lead article on the front
Tonda MacCharles, "It was an issue of rights: Ottawa's draft bill
to legalize same-sex marriages followed a bumpy road out of Jean Chrétien's
cabinet room," The Toronto Star, 2004-OCT-2, Pages H1 & H4.