MARRIAGES IN CANADA
FEDERAL PARLIAMENTARY COMMISSION & DISCUSSION PAPER
2002-AUG-7: Parliamentary commission created:
Prime minister Jean Chrétien
and justice minister Martin Cauchon announced that a parliamentary
commission will hold national hearings and study the way in which other
jurisdictions are handling the same-sex marriage issue. Simultaneously, the government will
continue the appeal to the Ontario Court of Appeals. Chrétien
said "It's a social problem which needs attention at this time, and we
want to have a committee to consult Canadians and experts." The
committee will give the committee a range of options to study. Tim Harpur,
Ottawa bureau chief for the Toronto Star speculates that the options could
||Expanding marriage to include persons of all sexual orientations.
||Creating a parallel system of civil unions for gay and lesbian couples
which would have the same rights, privileges and obligations as marriage.
||Having the government get out of the marriage business and leaving it
as a religious union. Marriage would then have no legal significance.
Some initial reactions to the parliamentary committee:
||Michael Leshner, a gay rights activist and crown attorney called the
commission idea "pathetic." He said: "Are these people brain-dead? Can they
not think for themselves. Can nobody just get up in the House of Commons and
make a statement on a fundamental issue of human rights?"
||John Fisher of EGALE Canada, a gay rights group, supported the
commission, but said "Human rights should not be
subject to a popularity contest."
||George Smitherman, a member of the Ontario legislature, favored the
committee, which he regards as a "reasoned and principled discussion of
equal recognition of same-sex couples." However, he appears to view
equal recognition as a fundamental human rights issue and not a matter for
||Liberal member of parliament Dan McTeague said there is no reason for parliament to diverge from its 1999
endorsement of marriage as a union between a man and a woman. 1
2002-NOV-7: Discussion paper released:
Justice Minister Martin Cauchon released a
discussion paper that will be used by the Justice and Human Rights
Committee of the House of Commons to guide the consultations. 2 It
suggests three options, that:
Marriage would remain an opposite-sex institution -- a
union of one man and one woman. Civil union
or domestic partnership legislation could then be created. It would
provide an alternative path that is equivalent to marriage, except in
name. It might be opened only to same-sex couples, or could be made
available also to opposite-sex couples who do not wish to be
married. This path may present legal problems, as "both the
[recent] Québec and Ontario [court] decisions suggest that a civil
registry may not be enough to meet equality concerns." 3 As in the case of public schools in the American
south, separate institutions are inherently not equal. This solution
would be certainly challenged in court. The Federal Government could
resolve this dilemma by invoking the "Not Withstanding"
clause which allows Canadian governments to ignore sections of the
Canadian Charter of Rights and Freedoms -- the Canadian
constitution for up to five years at a time.
Marriage would be expanded to include same-sex couples.
Most existing federal, provincial and territorial laws which give
special rights to married couples, would then automatically apply to
both opposite-sex and same-sex couples who obtain a marriage license
and marry. Some legislation would have to be slightly altered to
eliminate references to men and women. By tradition, clergy are not
required to marry couples when it would be contrary to the church's
religious beliefs. Some change in provincial/territorial laws might
be necessary to permit clergy to legally discriminate against
couples on the basis of their sexual orientation.
Parliament would cancel its marriage laws, and create a single "registered
partner" registry for both same- and opposite-sex couples.
Federal divorce laws would apply only to existing marriages.
Government benefits, spousal support, child support, etc. would be
linked to this registry. Existing marriages would be included in the
registry by default. Marriage
would be left to religious groups only. It would be a religious
ritual, like baptism in churches, and would have no legal
significance. This would "...underscore the division of church
and state in Canada...." 3 This path would
require the cooperation of all of the provinces and territories. It
would be difficult to challenge in the courts, but would distress
those who believe that marriage should be restricted to between one
man and one women, and that marriage should have both religious and
There are rumors that Justice Minister Cauchon favors the first, civil union, option.
Reuters gave the opinion that the third option is least likely to
Three items are worth mentioning:
||The desire of religious conservatives to leave marriage untouched and to
not have the government recognize same-sex relationships as equivalent to
marriage is not an option.
||Whatever system Canada ends up with will be applied uniformly across the
entire country, in all provinces and territories. If it doesn't, then court
challenges would quickly be certain to make it so.
||Whatever system(s) are created in Canada, same-sex couples will probably
not be able to have their marriages or civil unions recognized in very many
jurisdictions outside of the country.
Complete details of this discussion paper are located on the
Department of Justice's web site. Its authors have done an excellent
job in explaining a delicate and complex matter with clarity and
Reaction to the discussion paper:
||The Evangelical Fellowship of Canada, a conservative
Christian group, is opposed to both same-sex marriage and civil
unions. Bruce Clemenger, their national affairs director, said on
2002-NOV-7: "They're marriage by another name. Recognizing
civil unions will not enable the state to properly recognize the
important role that marriage plays in society."
||George Smitherman, a member of the Ontario legislature said that equal recognition of
same-sex relationships must be the starting point. "Equal
recognition is not up for debate."
||Canada's most conservative party, the Canadian Alliance
has traditionally favored the restriction of marriage to
opposite-sex couples only. They have not taken a stand on civil
unions. Leader Stephen Harper said "Frankly, the courts have no
business trying to turn this into a trumped-up human rights
issues. This is a decision of the legislature." 4
Leadership candidates differ:
On 2003-MAR-23, seven candidates for the leadership of the federal
Progressive Conservative party debated a number of issues. One was the future of
||Peter MacKay suggested that same-sex marriage legislation is not a
priority and that the nation's homeless problem should be solved first. He
later said that he regretted "making that statement. Clearly its a
priority when you are talking about people's rights and equality. But this
is politics....I think that we should keep a separation between church and
state...I don't think we should be telling Catholics they have to perform
same-sex marriages." [Editors note: His last
comment is difficult to understand. The government has never told any
religious groups who they must marry. We have never seen any indication
that this will change in the future.] MacKay said that people in a
same-sex relationship should receive all of the rights and privileges
given to married couples...."but call it something else."
||Scott Brison said, in response to MacKay's suggestion: "That would
be like saying we can't give women the vote until we eliminate
unemployment...We have to deal with more than one issue if we're going to
be in government." Brison supports the third alternative listed above:
to have the government register relationships -- of both same and opposite
sex couples. Churches would then decide whom they wished to marry.
||Craig Chandler indicated his opposition to government recognition of
same-sex committed relationships. He said: "I do believe in
[heterosexual] family values." He added that he was a Christian. When
André Bachand, a Quebec MP, interrupted
him to ask him a question, Chandler asked "Are you an anti-Christian?"
Bachand responded "I'm a Catholic." 5
The Justice Committee on tour:
Between 2003-APR-1 and APR-30, the House of Commons' Justice Committee toured
Canada, holding hearings of same-sex marriage in Vancouver, Edmonton, Moose
Jaw, Steinbach, MB, Halifax, Sussex NB, Sudbury, Toronto, Montreal and
Iqaluit, Nunavut. According to SameSexMarriage.ca, "the Liberal
party's Andy Scott has allowed witnesses to denigrate all homosexuals with
what M.P. Svend Robinson describes as 'hatred and venom.' This mockery of
justice is set to tour the country, but one couple has dropped out and
another may change testimony to protest this abusive platform for bigotry."
Glen Murray, mayor of Winnipeg MB commented that
"Many of the voices being heard at the public hearings have not
reflected the Canadian values that I cherish:"
"To redefine marriage to be more inclusive of homosexuality would [b]ranch
out into sexual activity with babies, children of both sexes and with
animals...We've had enough of unholy alliances and unholy relationships. The
people who are homosexuals have been molested in their childhood and that's
what gave them the habit. But they can change. Do the homosexuals every
pray?" Rita Curley, St. Ignatius Martyr Council
"Two men buggering and fellating each other cannot beget any progeny
out of their aberrant sexual practices. If we dare to change the institution
of matrimony and legally corrupt it, we shall see the further corruption of
our society as well." Richard Hudon, Association of Christian
Federal Justice Minister, Martin Cauchon, said: "I just hope
they will table their report pretty soon and when I will [sic] receive the
report I will have to come forward with a government position on that side."
The commission is expected to issue its report during the week of
Tim Harper, "PM seeks debate on same-sex marriages," Toronto
Star, 2002-AUG-8, Page A3.
Andrew Chung, "Gay marriage to get hearing; Ottawa could consider
legislation as early as this spring," Toronto Star, 2002-NOV-8.
"Marriage and Legal Recognition of Same-sex Unions: A Discussion
Randall Palmer, "Canada Eyes Gay Marriage/Civil Union Options,"
Reuters, 2002-NOV-7, at:
Graham Fraser, "Tory leadership candidates split on same-sex unions,"
Toronto Star, 2003-MAR-24, Page A4.
"Equal Marriage and the Law in Canada," SameSexMarriage.ca,
"...from the desk of Glen Murray, Mayor of Winnipeg," a letter
inserted in a mailing from Egale, 2003-APR, 205-176 Gloucester St, Ottawa ON
Andrew Chung, "B.C. appeal court lifts ban on gay unions," Toronto
Copyright © 2002 and 2003 by Ontario
Consultants on Religious Tolerance
Latest update: 2003-MAY-16
Author: B.A. Robinson