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Comparison of Canadian and U.S. law:

We offer the following information, because over 90% of our web site visitors are Americans. They might not be familiar with Canadian laws.

Distribution of powers: The U.S. Constitution and the Canadian Charter of Rights and Freedoms define very different patterns in the U.S. and Canada with respect to government structure, human rights, and the distribution of powers among the federal governments, states and provinces.

bulletIn the U.S., states are given jurisdiction over marriage ceremonies and registration. They decide who is eligible to marry, who can perform the ceremony, how licenses are provided, etc. As of 2003-JUN, a gay or lesbian couple can be "civil unionized" in Vermont and receive a fraction of the rights and privileges that are automatically given to married couples. In California and Hawaii, they can register their partnership and pick up a few of those rights. In most of the rest of the country, states do not recognize same-sex relationships; a gay or lesbian couple are merely roommates.
bulletIn Canada, the powers are distributed among the federal government, the provincial legislatures and the territorial legislatures. It is the federal government, and occasionally the courts, which decide who is eligible to marry.

Opting out of the constitution:

bulletIn the U.S., the federal constitution limits the powers of both the federal government and state legislatures. They have no option but to follow the Constitution. In fact, a senator or representative who violates the constitution also violates her or his oath of office.
bulletIn Canada, any government -- Federal, Provincial, or Territorial -- can exercise Section 33 of the Charter. This is often referred to as the "not withstanding clause." It allows a government to ignore of any of the sections of the Charter which deal with fundamental freedoms of religion, speech, the press, free assembly and association, and guarantees of equality.

"Developed in 1981, this clause provides a form of balancing mechanism between the legislators and the courts in the unlikely event of a court decision contrary to public interest. The purpose of an override clause is to ensure that legislatures, rather than judges, have the final say on important matters of public policy. The override power allows Parliament and legislatures to repeal a court decision regarding fundamental Charter rights such as freedom of expression, conscience, association and assembly, the right to life, liberty and security of the person, freedom from unreasonable search and seizure, arbitrary arrest or detention, a number of other legal rights, and equality. " 5

To our knowledge, this loophole is unique in the world. The Charter basically says that every person is guaranteed equality and freedom, but that the Government of Canada or of any of the provinces or territories  can withdraw these rights at any time by simply passing restrictive legislation. The only controls over this process are that:

bulletThe government involved would have to declare that the legislation is in direct conflict with the Charter and,
bulletThey would have to renew the legislation every five years.

The framers of the Charter hoped that the media and the public would be outraged at any opt-outs, would vociferously object, and might well vote the politicians responsible out of office at the next election.

When the Charter was introduced in the early 1980's, former Liberal Prime Minister, Pierre Trudeau called the "not withstanding" clause a tainted compromise. Former Conservative Prime Minister Brian Mulroney said that it reduced the worth of the Charter to that of a piece of scrap paper. More details on the clause.

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Who writes marriage legislation in Canada:

The authority to control marriage is divided:

bulletThe federal government has jurisdiction over the capacity to marry. It decides the age of consent for spouses, who is prohibited from marrying because they are too closely related, gender requirements, and similar matters.
bulletThe provincial and territorial governments have jurisdiction over the procedures involved in marriages. They decide the details of marriage licenses, how much they will cost, how soon they will expire if they are not used. They define who is authorized to perform marriages; they maintain a marriage register, etc.

Barbara Billingsley, a constitutional law specialist at the University of Alberta, said in 2003 that: "It's never been decided in court -- is sexual orientation an issue of procedure or of capacity? If it's an issue of capacity, then the federal government has jurisdiction." 1 Julie Lloyd, a lawyer specializing in gay rights cases in Alberta, was more definite. She said: "The province of Alberta cannot unilaterally create its own definition of marriage any more than it can create its own criminal code. For the province of Alberta to suggest they can has no academic currency at all." 1

Probably a near consensus of Canadian constitutional experts would agree that the decision of whether same-sex couples can marry is a matter of capacity, and that a province or territory must follow whatever the federal marriage act states. "While the notwithstanding clause does allow provincial governments to shelter their laws from some key sections of the Charter, it cannot be used to opt our of federal legislation. The statue on marriage falls squarely within federal jurisdiction." 6

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Federal or provincial opt outs:

There have been many references to the use of the notwithstanding clause to prohibit same-sex marriages, either within a single province or nationally:

bulletAccording to CBC News, on 2000-MAR-16, Alberta passed "...Bill 202 which says that the province will use the notwithstanding clause if a court redefines marriage to include anything other than a man and a woman." 2
bulletThe Christian Heritage Party is a small Fundamentalist Christian political party which has yet to elect a member to parliament. In 2003-APR, they discussed their organization of a "national movement to stop the legalization of same-sex unions in Canada." It takes the form of a "petition urging Parliament to preserve and protect the current definition of marriage as between one man and one woman." They are "...pleading for Parliament to use all possible legislative and administrative measures, including invoking the ...notwithstanding clause." 5
bulletOn 2003-JUN-10, the Ontario Court of Appeal ordered the Government of Ontario to permit gays and lesbians to marry. In response, Alberta Premier Ralph Kline announced that if same-sex marriages were legalized across Canada, his government would invoke the "not-withstanding" clause in the Canadian constitution. He said: "If there is any move to sanctify and legalize same-sex marriages, we will use the notwithstanding clause; period; end of story." Alberta has been referred to as the buckle of Canada's Bible Belt. Because of its large minority of conservative Christians, most adults in the province have historically been opposed to equal rights for gays and lesbians, including the right to marry. 3

Professor Nick Balla, a specialist in family law from Queen's University at Kingston, ON joined with other interviewees on CBC NewsWorld on JUN-11 to explain that Ralph Kline is mistaken. He stated that a province cannot opt out of legislation which defines who is eligible to marry. That is a federal responsibility. A province can only change laws which determine how the federal marriage act is administered. 3
bulletIn 2003-MAY, when the federal government had released a discussion paper on marriage, Member of Parliament Vic Toews said that there was no need to hear further discussion on same-sex marriage. The federal government had two options: to follow the equality provisions of the Charter or Invoke Section 33 of the Charter -- the notwithstanding clause -- and declare that same-sex couples are outside the protection of the Charter. Referring to the parliamentary committee which traveled across Canada seeking the public's opinion on same-sex marriage, he said: "We don't have to go around hearing from Canadians if he's [the Prime Minister} 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." 4
bulletMany religious and social conservatives recommendied that the federal government appeal the 2003-JUN-10 decision of the Ontario Court of Appeal to the Supreme Court of Canada. That ruling ordered the province to permit same-sex marriages. Following the decision, Roy Beyer, president of the Canadian Family Action Coalition suggested that if the high court upholds the Appeal Court decision, that the federal government should use the notwithstanding clause to preserve the traditional male-female definition of marriage. The federal government elected to not appeal the ruling.
bulletAlberta Justice Minister Dave Hancock agrees: "That's what the notwithstanding clause is there for. In circumstances where there's an issue between the courts and Parliament, Parliament is the governing body and has the accountability to the people and therefore has the opportunity to, and right and obligation to, consider those things." 1
bulletBarbara Billingsley suggests that a government passing a law that was exempt from provisions of its own Charter of Rights would be rare but not impossible. She said: "The charter does enable them to do it. But then it becomes more of a political issue than a legal one." 1
bulletIn an interview on CBC TV Newsworld's Politics program, Justice Minister Martin Cauchon said that Alberta may be forced to legally recognize same-sex marriages. He said: "Based on the [Canadian] Constitution, their [provincial] jurisdiction is as regards to the celebration of marriage. Having said that, once you have a national legislation as regard to that question of same-sex marriage, they will have to recognize the national definition...So what could happen is that people will go into another province to celebrate their marriage. They will move back into Alberta, and I believe they won't have any choice but to recognize those people are part of a legal union and...validly married based on a national legislation." 7

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The Supreme Court of Canada settles the matter:

On 2004-DEC-08, the Supreme Court of Canada settled the speculation. They released its rulings on the Federal Government's reference questions. They advised that the federal government has the right to define who can marry. This terminates any possibility that the Province of Alberta, or any other province or territory, can implement the notwithstanding clause to ban SSM within their boundaries. The justice minister of Alberta accepted the ruling and admits that use of the notwithstanding clause is not possible. More details.

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  1. "Calgary gay coupled [sic] married, but can't get marriage licence in Alberta," Canoe.ca, 2003-JUN-12, at: http://www.canoe.ca/
  2. Owen Wood, "The Fight for Gay Rights: Canada Timeline," CBC News Online, 2003-JUN-12, at http://www.cbc.ca/news/
  3. CBC NewsWorld, 2003-JUN-11, morning news.
  4. "Committee will support equal marriage; Their report will not be unanimous," EqualMarriage.ca, 2003-MAY-30, at: http://www.samesexmarriage.ca/
  5. Lottie Wengelin, "Petition to ban same-sex marriage draws local support," Christian Heritage Party, at: http://www.chp.ca/CHPNews/
  6. Chantal Hebert, "Opinion: Liberals dither on gay unions," The Toronto Star, 2003-JUN-13, Page A23.
  7. Tonda MacCharles, "Divorcing gay couples have plenty to fight for. Property rights now enter the mix, lawyers say. 'Means more business' divorce specialists admit," The Toronto Star, 2003-JUN-23, Page A19

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Copyright © 2003 and 2005 by Ontario Consultants on Religious Tolerance
Latest update: 2005-JAN-21
Author: B.A. Robinson

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