HOMOSEXUAL (SAME-SEX) MARRIAGES IN CANADA
British Columbia (BC)
British Columbia (BC) is Canada's western most province. Its
culture resembles California's in many ways. Church attendance and religious
affiliation is low. The concentration of gays and lesbians, the divorce rate and
the suicide rate are high, relative to the rest of the country. The culture is
generally permissive. Unlike California, British Columbia has had a series of
unusually corrupt governments elected to office, representing the full political
spectrum from the extreme left to the extreme right.
In 1977, the government recognized gay and lesbian partnerships by setting up
a system for gays and lesbian that was largely parallel to heterosexual
marriage. Eight gay/lesbian couples applied for marriage licenses and were
denied. They sued the government in 2001-JUL, and lost. This was a very
important decision, because two other courts -- in Ontario and Quebec -- had
ruled in favor of same-sex marriage in other similar cases. The Federal
Government and others who opposed same-sex marriage capitalized on the lack of
unanimity of the three court decisions.
The couples appealed to the British Columbia Court of Appeal. On
2003-MAY-1, they won their case. The court unanimously ordered the Federal
Government to modify its marriage act before 2004-JUL-12 to allow gays and
lesbians to marry. All three senior provincial courts of appeal --
Quebec, British Columbia and Ontario -- are now unanimous in demanding a
change to the marriage act to allow same-sex couples to marry.
1997: BC Government recognizes gay civil unions:
The NDP (Socialist) government of the province of British Columbia proposed
new spousal benefits laws in 1997-JUL that would expand the definition of
"spouse" to include same-sex couples. Bills 31 and 32 recognized "the
marriage-like relationship between persons of the same gender" in the
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. The bill passed overwhelmingly. Even one
member of the Reform Party (now part of the Conservative Party of
Canada) voted in favor - an unprecedented move for that
political party. British
Columbia was the first jurisdiction in North America to take this step. The
New Democratic Party in Ontario tried to do this in 1994. They withdrew
the effort in the face of widespread opposition. 13
Responses from various faith groups was as one might predict.
Conservative groups expressed concern at the legislation and feared its
negative effect on heterosexual families and marriages in the province. At
least one liberal religious group welcomed the legislation for its long
overdue granting of equal rights to gay and lesbian families, and looked
forward to the law having a positive effect on all families.
2001-JUL: Gay and lesbian couples launch petition in British Columbia:
Eight BC same-sex couples -- Murray Warren & Peter Cook; Melinda Roy & Tanya
Chambers; Robin Roberts & Diana Denny; Jane Hamilton & Joy Masuhara; Tess Healy
& Wendy Young; Shane McCloskey & David Shrott; Bob Peacock & Lloyd Thornhill;
and Elizabeth & Dawn Barbeau -- applied for and were denied marriage licenses.
They launched a petition
to overturn the federal Marriage Act, arguing that it denies them equal
rights 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." Judith Bowers, a lawyer representing the federal
Attorney-General said "The federal government has come to court to defend the
historic definition of marriage, that being an opposite sex institution....It
will end up, I'm assuming, at the federal level." She estimated that
it would take at least three years to bring the case to the Supreme Court of
Canada. As of 2003-APR, this appears to be an accurate prophecy.
Referring to Toronto couples who attempted to be married under church
banns, Murray Warren said that he and his partner "...don't profess to any
religion, so we wouldn't want to use that process. I believe there is a
fundamental problem that needs to be fixed. We don't want a backdoor approach."
The Supreme Court of British Columbia heard arguments during 2001-JUL and
2001-OCT: Supreme Court denies the petition:
On 2001-OCT-3 BC Supreme Court Justice Ian Pitfield ruled that:
||The government discriminates against Gay and lesbian couples by not
allowing them to marry. They are denied rights set in Section 15 (1) of
the Canadian Charter of Rights and Freedoms -- the Canadian
||It is acceptable for the government to discriminate against a minority,
under section (1) of the Charter. 2
||Courts can only make "incremental" changes to law. Recognizing
same-sex marriage would be a major change. He wrote "A judge-made
change to the legal nature of marriage would be much more than
incremental. The change would affect a deep-rooted social and legal
institution...A change of the nature proposed would create new issues of
||Politicians, not judges, should settle the question of homosexual
marriage. The judge wrote: "The legal nature of marriage is so
entrenched in our society, and the changes in law required so uncertain in
the event same-sex marriages are to be recognized by the state, that
Parliament or legislatures, and not the court, must make the (decision.)"
||The definition of marriage was fixed for all time by the constitution
of 1867, and cannot be changed to allow same-sex marriages.
Judge Pitfield introduced a novel concern. He commented that opposite-sex
marriages can be annulled if they are not consummated. But there is no evidence
of what would constitute consummation in a same-sex relationship.
The lawyer for
three of the couples is barbara findlay. She prefers that her name not be
capitalized. She said: "Our clients knew, when they started, that this would
be a case that would go on for five years. But the anguish of being told that we
recognize that you're being discriminated against but that discrimination is
acceptable is very difficult to describe. The sense of being people who don't
count in the Canadian community is deeply sorrowing." She commented that
politicians haven't yet shown the courage to take action on homosexual rights
questions unless it became apparent that the courts were going to force them to
do so. 3
The text of the ruling is available online. 6
An appeal to the BC Court of Appeal followed.
BC Court of Appeal overturns lower court ruling:
On 2003-MAY-2, the Court of Appeal for British Columbia overturned the decision of the BC
Supreme Court. The decision was unanimous. The Honourable Madam Justice
Prowse wrote on behalf of the court, with the Honorable Mr. Justice Mackenzie
and the Honourable Mr. Justice Low concurring. 7 The ruling
stated "that the
[current] common law definition of marriage contravenes the [Canadian] Charter
[of Rights and Freedoms] and cannot be justified in contemporary Canadian
society....These developments have substantial public support, although the
matter remains controversial...This evolution cannot be ignored. 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
The court concluded:
||"...that there is a common law bar to same-sex marriage..."
i.e. that the Federal and Provincial marriage acts forbid gays and
lesbians to marry. 8
||"...that it contravenes s. [Section] 15 of the Charter" which
forbids discrimination on various grounds, including gender and sexual
||"...that it cannot be justified under s. [section] 1 of the Charter"
which allows governments to discriminate under special circumstances, but
only where it can be justified. 8
||Thus, the law forbidding "same-sex marriage is of no force or
effect..." i.e. the law is unenforcable. 9
The court's ruling, in effect, re-wrote the common law definition of marriage,
deleting those phrases that refer to one man and one woman. In their place is a
new definition of marriage in Canada as "the lawful union of two persons to
the exclusion of all others". 8
The court then suspended these remedies, saying that they would not come into
effect until 2004-JUL-12. This date "coincides with the expiration of the
24-month suspension of remedy in Halpern." That synchronizes the period of
suspension with that given by the Ontario Divisional
Court. This suspension is "solely to give the federal and provincial
governments time to review and revise legislation to accord with this decision."
This gives the Federal government until 2004-JUL-12 to
rewrite the federal marriage act to grant all loving, committed couples the
right to marry in Canada, regardless of their sexual orientation. 7
Referring to this decision and similar decisions by senior courts in Ontario
and Quebec, Federal Justice Minister Martin Cauchon said that the BC ruling is
an "important judgment...The three decision are all going in the same
direction, So I have to take that into consideration." However, it is the
policy of the Government of Canada to appeal these decisions, apparently
because it does not regard elementary civil rights to be absolute; rather they
can be granted to minorities only if a substantial majority of Canadians first
agree. As as Cauchon said: "It's an important social issue for Canada. When
you look at the situation in Canada, people are divided."
Comments, as expected, were varied:
||Federal Member of Parliament LIbby Davies (NDP; Vancouver East) said: "I
think it's another great victory and I really applaud the couples who have
stayed the course. It's a fundamental equality provision. I cannot for the
life of me understand why two people, just because they happen to be of the
same sex, would be denied the right to marry if they want to."
||Michael Martens, spokesperson for the Canadian office of the
Fundamentalist Christian Colorado-based group Focus on the Family is
opposed to the extension of marriage rights to gays and lesbians. He was
disappointed at the court's decision. He said that the judges did not take
into consideration the benefits that marriage provides. He said: "Marriage
is a social institution; institutions are not about rights, they're about
serving society, and marriage does a very good job of that."
||2003-JUN-17: Most observers had expected that the case would be finally determined by the Supreme Court of
Canada. The federal government had until 2003-JUN-30 to decide to appeal the B.C. case
to that court.
5 However, at a cabinet meeting on 2003-JUN-17, they decided to
abandon this route. Rather, they will draft legislation which will legalize same-sex
marriage across Canada. It will be checked by the Supreme Court for adequacy,
and later submitted to Parliament for approval. More
||2003-JUL-7: Two social and religious conservative groups, the
Interfaith Coalition on Marriage and Family and the Association
for Marriage and the Family announced that they are planning to seek
leave to appeal the 2003-JUN-10 decision of the Ontario Court of
Appeal to the Supreme Court of Canada. It is not clear
whether they will be able to mount an appeal, since they were not
principles in the case; they only had "party intervenor" status.
||2003-JUL-8: As noted above, the British Columbia Court of Appeal
suspended implementation of same-sex marriages in the province until
2004-JUL-12. Some homosexual rights groups in the province asked the
court to remove the one year delay. The Ontario Court
of Appeal had issued a ruling on 2003-JUN-10 which had legalize same-sex
marriages immediately in that province. The BC court issued a supplementary ruling, ordering the
government of British Columbia to start issuing marriage licenses to gay
and lesbian couples immediately. The government anticipated this
decision and had all systems in place to issue licenses without delay. MSNBC reported that:
The three-member B.C. Appeal Court panel said ...it was unaware of any
[government] opposition to lifting the one-year delay. "It is also apparent that any
further delay in implementing the remedies will result in an unequal
application of the law between Ontario and British Columbia," the decision
The judgment continued: "In these circumstances, the Court is
satisfied that it is appropriate to amend the order in these appeals to lift
the suspension of remedies, with the result that the declaratory relief and
the reformulation of the common law definition of marriage as 'the lawful
union of two persons to the exclusion of all others' will take immediate
In the courtroom, partners Tom Graff, 58 and Anthony Porcino, 35, wept
with joy. "I didn't know that I was going to do that," Graff said. After the
hearing, they went immediately to the nearby Vital Statistics Branch
to get a marriage license.
Seven years ago, Vancouver City Councillor Tim Stevenson, a United Church
minister, had performed a "blessing" of the couple. The three got
together again to upgrade the blessing to a marriage. Stevenson called the
ceremony, which recognized the two as "spouses and life partners," a
historic occasion "for you, for this province, for this country, for gays
and lesbians throughout the country. May this legalizing also make a
difference in your own lives." The United Church of Canada has an approved ritual for marrying
same-sex couples. The Church is a liberal Christian denomination which is similar in social and theological
beliefs to the United Church of Christ in the U.S.
Two of the couples who initiated the lawsuit, Dawn & Elizabeth Barbeau, and
Joy Masuhara & Jane Hamilton have already been married in Ontario. Petitioners
Peter Cook and Murray Warren plan to get married in 2004, on their 33rd
anniversary together. Cook said: "It means we'll have a relationship that's
internationally recognized and understood. It has lots of legal benefits, like
hospital visitation rights." Petitioners Robert Peacock and Lloyd
Thornhill have lived together for 35 years. They are planning to marry
at Ryerson United Church in Vancouver in mid-2004. Peacock said "We
have equality. We have the rights that have been afforded every Canadian
citizen." Neither man had expected that legal same-sex marriage would be
available during their lifetimes. Other plaintiffs also plan to marry at their
Anglican Bishop Michael Ingham, recently decided to allow priests in the
Lower Mainland Anglican churches to bless same-sex unions. This has triggered
a crisis in the worldwide Anglican Communion. Referring to the court decision,
he said: "It goes considerably further than the church has gone. We have
spoken of unions and not marriage. That remains the position of our diocese.
I'm glad gay and lesbian people are receiving recognition of their equality
rights, but it goes beyond where we are in the church. We still regard
marriage as a union between husband and wife."
Pavel Reid, spokesperson for life and family at the Roman Catholic
Archdiocese of Vancouver, said the diocese was "saddened" by the
decision because it believes it will be detrimental to Canadian family life.
He continued: "We're also concerned that the courts have taken over the
role of legislating in our democracy. This way of making important public
decisions is very wrong. A third point of concern is the impact this will have
on churches and religious freedom. The prime minister has given a guarantee
with respect to religious freedom, but he can't give us a guarantee with
respect to what the courts might do."
Kathleen Lahey, counsel for the petitioners, said that the court ruling "confirms
that the new federal law on same-sex marriage applies uniformly across the
country -- and immediately. It also makes it clear that other provinces can
and should act now to extend marriage to lesbian and gay couples, instead of
putting the issue off until the Supreme Court of Canada and Parliament have
confirmed the new law."
Craig Maynard, a spokesperson for the gay rights group EGALE said Tuesday's
decision was an important one for gays and lesbians. "EGALE and gays and
lesbians across the country are thrilled by this decision, but we are also
calling upon all provinces across Canada to start issuing marriage licenses to
couples of the same sex who want to get married." 12
"Same-sex couples launch challenge," Toronto Star / CP,
"Legal Recognition of Same-Sex Unions," MapleLeafWeb, 2003-JAN-13,
Wendy Cox, "Same-sex discrimination justified, B.C. judge rules,"
Toronto Star, 2001-OCT-4, page A15.
Andrew Chung, "B.C. appeal court lifts ban on gay unions," Toronto
Estanislao Oziewicz, "Same-sex married couples rejoice. Ruling
recognizes union of those married in 2001; others rush to wed," The Globe
and Mail, 2003-JUN-11, Page A4.
"Egale Canada Inc. v. Canada (Attorney General)  B.C.J. No. 1995
: 2001 BCSC 1365; Vancouver Registry Nos. L002698, L003197," British
Columbia Supreme Court, 2001-OCT-2, at:
"Court of Appeal for British Columbia, Barbeau v. British Columbia,
Docket CA029017, 029048 & 029017," 2003-MAY-1, at:
- Ibid, Paragraph 7.
- Ibid, Paragraph 158.
- Ibid, Paragraph 159.
"British Columbia court allows same-sex marriage," MSNBC News,
Brian Morton and Nicholas Read, "Same-sex marriage makes B.C. history.
Ceremony minutes after Appeal Court lifts ban," Vancouver Sun,
"NDP turns BC gay couples into 'spouses'," Catholic Insight,
1997-SEP-01, Vol. 5 Issue 7, Page 18-19. Downloadable online at an
outrageous price at:
Information about marriage in British Columbia is available at:
Copyright © 2003 to 2006 by Ontario
Consultants on Religious Tolerance
Latest update: 2006-NOV-02
Author: B.A. Robinson