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Same-sex marriages in Canada

2005-July to December

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Earlier developments are described in another essay

In this essay, "SSM" means "same-sex marriage." "MP" means Member of Parliament.

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Background:

Bill C-38, the Civil Marriage Act, was signed into law on JUL-20 at 4:56 PM. Because of Canada's political system, creation of this law made SSM available in every province and territory in Canada. Canada thus became the fourth country in the world to legalize same-sex marriages, after the Netherlands, Belgium and Spain. The fifth will probably be South Africa. That country's most senior court has ruled that the constitution's equality provisions require the redefinition of marriage to include all loving, committed couples, both same-sex and opposite-sex.

There were positive and negative reactions to the Act in the days following its proclamation. However, the country appears to have settled down to the new reality. There were very few mentions of SSM in the media until the new federal election was called for 2006-JAN.

The highest courts in seven provinces and one territory had legalized SSM in their jurisdiction. The federal government did not appeal any of these decisions to the Supreme Court of Canada. The interval of time during which they could have launched an appeal has expired. There is a general consensus among constitutional specialists, with the exception of those who are Conservatives, that the only mechanism by which the federal government could deny same-sex couples the right to marry would be to invoke the notwithstanding clause in the Charter of Rights and Freedoms -- Canada's constitution. This would override the equality guarantees Canada's constitution for five years and deny same-sex couples the right to marry. Such legislation would have to be renewed every five years.

Subsequent developments:

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2005-AUG-19: Prince Edward Island capitulates:

Dr. Chris Zarow and Constance Majeau, a same-sex couple from California, pressured the provincial government into letting them marry during a family reunion on Prince Edward Island. Chris Zarow said she is pleased that: "From now on any couple can walk into the Vital Statistics office and simply fill out the paperwork as simple as anyone else. No one else will have to fight this battle." They were married on the afternoon of AUG-19. This is wedding is symbolic for all of Canada. For the first time, any couple, opposite-sex or same-sex, can obtain a marriage license anywhere in Canada and have their marriage registered by the province or territory. 1,2More info.

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2005-NOV-28: Federal government falls:

A resolution expressing lack of confidence in the Liberal government was passed by the House of Commons with support from the three opposition parties: the Conservatives, New Democratic Party, and Block Quebecois. A new election was scheduled for 2006-JAN-23.

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2005-NOV-29: British Columbia human rights ruling:

Deborah Ann Chymyshyn and Tracey Smith of Coquitlam, BC, had decided to get married in 2003 after having completed five years in a committed relationship. They booked a local Knights of Columbus hall for their reception. The building is owned by the Roman Catholic Archdiocese of Vancouver. The Knights are an all-male Roman Catholic service group. The couple signed a contract, paid the deposit, and mailed out invitations to their wedding guests. The Knights of Columbus found out that theirs was a same-sex wedding, and unilaterally reneged on the contract. The couple lodged a complaint with the British Columbia Human Rights Tribunal, stating that they were discriminated against on the basis of their sexual orientation. Their case was heard on 2005-JAN-24 to 27. 3

The respondents, Elmer Lazar and Sandra Hauser, denied that they discriminated against the couple. They testified:

"...that they have a bona fide and reasonable justification for refusing complainants' access to the Hall. They [said],... that as practicing Catholics, they are opposed to same-sex marriages. This opposition is part of their core religious beliefs, which are constitutionally protected under s. 2(a) of the Canadian Charter of Rights and Freedoms.....They also [said]... that their constitutionally protected right to freedom of religion protects property owned by the Catholic Church and the Archdiocese from being used for a purpose contrary to core Catholic beliefs, such as the celebration of a same-sex marriage. In the alternative, the respondents rely on s. 41 of the Code, which allows them to give preference to those individuals who are members of their religious group."

Father Gabriel O’Donnell testified for the respondents. He:

"...said that neither the Catholic Church, nor the Knights, condemn homosexuals, only the homosexual act. Homosexuals can be members of the Catholic Church and the Knights; however, same-sex unions are contrary to core Catholic beliefs. Father O’Donnell said that marriage is defined, in the Judeo-Christian tradition, as being an exclusive, lifetime union between a man and a woman. Father O’Donnell said that those who disagree with this view have moved away from the 'traditional' definition of marriage. The Catholic Church sees this union as having its foundation in nature, established by God, which has been raised to a sacrament, which was described by Father O’Donnell as the outward or visible sign of an invisible or hidden reality: love of God or grace or divine influence....Father O’Donnell said that, if the Knights had allowed the Hall to be used by the complainants for the celebration of their marriage, it would have resulted in a serious rupture between the Catholic Church and the Knights. In the Charter, Constitution and Laws of the Knights, a Knight forfeits his membership if he does not remain in union with the 'Holy See.' In Father O’Donnell’s view, renting the Hall for the celebration of a same-sex marriage would have diminished the meaning of marriage within the Catholic. Father O’Donnell said the Catholic Church does not distinguish between the performance of the marriage ceremony or rite, the celebration of the marriage at a reception, or celebrating the anniversary of a marriage, as these events are, in effect, all celebrations of a marriage."

The Tribunal Section 8 of the British Columbia Human Rights Code states that:

"A person must not, without bona fide and reasonable justification,
(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or
(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public
because of the … sexual orientation … of that person…."

Based on this section of the Code, the Knights of Columbus and Mr. Lazar were found to have discriminated against the couple. They were ordered to:

bulletPay the sum of $444.59 CDN to cover expenses incurred by the couple because of the unilateral cancellation of the contract.
bulletPay Ms. Chymyshyn and Ms Smith "...for injury to their dignity, feelings and self-respect."
bullet"...refrain from committing the same or a similar contravention of s. 8 of the Code" in the future."

The couple has appealed the decision, seeking additional compensation. 3

Bob Tarantino at the Blog "Let It Bleed" concluded that the decision was:

"a freakin’ travesty....The three [Tribunal] panelists furrowed their brows, quoted a whole bunch of irrelevant case law, contradicted themselves about a jillion times and then, when not even that mash-up could get them to the result they wanted, they just made it up." 5

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2005-NOV-29: Conservative Party leader proposes to end SSM:

Stephen Harper, leader of the Conservative Party, surprised a lot of political columnists by raising the same-sex marriage topic very early in the campaign. Some observers suggest that this ploy may have been an effort to get the matter out of the way quickly so that he could concentrate on other topics, like accountability and taxes. However: "Conservative strategists say Harper simply addressed a reporter's question Tuesday, with the same answer he has always given and which has now become official party policy. As for timing, he was going to answer it whenever, wherever it was asked."

Harper's proposal is that if the Conservatives form the next government they would, as soon as Parliament reconvenes, hold a free vote to determine whether most MPs would like to change the definition of marriage to exclude same-sex couples. If this passed, the Conservative government would introduce a bill which would prohibit same-sex couples from marrying. This would also be a free vote. Members of Parliament would be free to vote as they wanted. If passed, the bill would be transferred to the Senate for approval, and proclaimed by the Governor General.

He also promised that for this bill alone, he would not invoke the not-withstanding clause in the Charter of Rights and Freedoms. He gave no promise that he would not use the clause in the future to override the equality guarantees in the Charter with other legislation.

Committed same-sex couples could not marry after the bill was passed. Instead they would be offered some type of civil union option. However, same-sex couples who were already married would be allowed to stay married.

A near-unanimous opinion of constitutional experts is that a bill of this type would be unconstitutional. The only way to actually ban SSM would be to invoke the country's "not-withstanding" clause. This requires the passage of a bill specifically stating that the equal provisions clauses of the Charter of Rights and Freedoms would be violated. Such a bill would have to be renewed every five years. It might prove to be extremely unpopular among the Canadian public. Harper denies that this would be needed to eliminate same-sex marriage.

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2005-DEC-24: Election campaigning ceases over Christmas:

The party leaders essentially stopped campaigning during the Christmas season.

The critical factor that will determine the structure of the next Parliament is the gap between the Liberal and Conservative parties. Various polls on DEC-22 showed a 1 percentage point gap (Ipsos-Reid poll), a 7 percentage point gap (Strategic Counsel) and a 10 percentage point gap (SES Research) -- all with the Liberals leading. The Canadian electorate is expected to become more engaged, and their selections more firm in early January during the run-up to the election.

The last election, on 2004-JUN-28, had a 7.1 percentage point gap (Liberal 36.7%; Conservatives 29.6%). It produced a minority Liberal government. 7

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2005-DEC/2006-JAN: Two Conservative candidates running as independents:

According to LifeSiteNews, at least two candidates are running as independents in ridings where the Conservative candidate has expressed support for same-sex marriage:

bulletGreg Watrich is running as an independent in Port Moody-Westwood-Port Coquitlam, BC, riding along with the incumbent Conservative MP James Moore.
bulletJohn Pacheco is running as an independent in Ottawa West Nepean, ON, along with Conservative John Baird.

Pacheco said:

"If our campaign were to attract enough votes away from the Conservative Party in Ottawa West Nepean for Baird to lose, the Conservatives will get the message that social conservatives are serious about their politics.  Moreover, since the next Parliament is likely to be a minority one again, the Conservative Party, should they lose the seat this election, will think twice about running another anti-family candidate again in two years time. On the other hand, if John Baird wins, the voters of Ottawa West Nepean will likely be represented by him for years and years to come, and there will be no chance of having their socially conservative views of marriage and family represented. In fact, quite the opposite will happen."

The term "anti-family" appears to mean politicians who are in favor of allowing same-sex couples to marry and extending government plans to protect and support the children whose parents are of the same sex.

By splitting the conservative vote, the Liberal party candidate had a much greater chance of winning the election in both ridings.

In both cases, the incumbent was re-elected.

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2005-DEC/2006-JAN: Leadership debates:

The leaders of four of Canada's five main political parties engaged in a debate on 2005-JAN-09, in advance of the JAN-23 federal election. Present were the leaders of the Conservative, Liberal, New Democratic and Block Quebecois. Absent was a representative from the Green Party, which was excluded from the debate.

Prime Minister Paul Martin of the Liberal party dropped a bombshell during the debate. 9 He promised that the first action to be taken by his party if they won the election would be to modify the Charter of Rights and Freedoms -- Canada's constitution -- to make it impossible for a federal government to use the notwithstanding clause. That clause, unique in the world, allows the national government to pass unconstitutional laws which override portions of the Charter. It is generally acknowledged by experts in Canadian constitutional law that the only way to eliminate same-sex marriage in Canada would be to use the notwithstanding clause. Some conservative Christian leaders expressed concern, because Martin had indicated that he might use the notwithstanding clause to protect religious institutions who wanted to continue to discriminate against individuals on the basis of their sexual orientation, if such discrimination were threatened by the courts. During 2003-DEC, he had said: "I would look at it if it was a question of affirming a (religious) right." Stephen Harper, leader of the Conservative Party, rejected such an amendment. He said that: "There is a danger in saying that the courts, regardless of the decision, will always be right. Our Charter and our Constitution sets up the dialogue where there’s a balance between parliamentary supremacy and the supremacy of the courts. That’s the balance I support." 10 Archbishop Brendan O’Brien, of the Roman Catholic diocese of St. Johns, Newfoundland-Labrador referred to Martin's 2003-DEC statement and said that it: "...was meant as a reassurance to the churches, and it was reassuring. Removing the clause would certainly put us in a more vulnerable position." He speculated that the Roman Catholic Church could refuse to marry all couples as a way of avoiding marrying opposite-sex couples. He concluded: "But even without the clause, would we be forced to perform homosexual marriages?" Would the courts force us to perform sacramental marriages [for homosexual unions]? I doubt that." 11

Public opinion polls indicate a dramatic surge in support for the Conservative Party. Their popularity is such that if the vote were held on JAN-09, they would probably have formed a majority government.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Wayne Thibodeau, "Lesbian couple make mark with vows," The Guardian, 2005-AUG-20. Online at: http://www.gaypei.com/
  2. "First same-sex wedding performed on PEI," at: http://www.gaypei.com/
  3. "Same-sex wedding cancelled, panel told," The Toronto Star, 2005-JAN-26, Page A6.
  4. The ruling of the British Columbia Human Rights Tribunal is at: http://www.bchrt.bc.ca/ This is a PDF file. You may require software to read it. Software can be obtained free from: 
  5. Terry Vanderheyden, "Lesbians Want More Than Just Fine for Knights of Columbus: Launch Appeal. Blogger captures 'travesty' K of C v. lesbians Human Rights tribunal decision," LifeSiteNews, 2005-DEC-02, at: http://www.lifesite.net/
  6. "Experts see wisdom in Harper's marriage gambit," Canadian Press, 2005-DEC-30, at: http://www.ctv.ca/
  7. "Canadian federal election, 2006," Wikipedia, at: http://en.wikipedia.org/
  8. Terry Vanderheyden, "True Conservatives Running as Independents against Anti-Family, Anti-Life 'Conservative' Candidates," Life Site News, 2005-DEC-22, at: http://www.lifesite.net
  9. The text of the debate is at: http://www.ctv.ca/
  10. Gudrun Schultz, "PM Martin Threatens Notwithstanding Clause, Ignores Promise to Protect Church Rights," 2005-JAN-10, at: http://www.LifeSiteNews.com
  11. "Archbishop Criticizes PM Martin for Threat to Remove Notwithstanding Clause," 2005-JAN-10, at: http://www.LifeSiteNews.com.

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 Home page > Homosexuality > Same-sex marriage > Canada > here

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Copyright © 2005 & 2006 by Ontario Consultants on Religious Tolerance.
Essay first posted on 2005-DEC-03
Latest update: 2006-MAR-26
Author: B.A. Robinson

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