BACKGROUND

   A.  Overview of Legislative Reforms to Date

   B.  Marriage and the Constitution
      1.  Division of Powers
      2.  Capacity to Marry

   C.  Relevant Case Law
      1.  Prior to 2001
         a.  North v. Matheson
        b.  Layland v. Ontario (Minister of Consumer and Commercial Relations)
      2.  2001-2005
      3.  Parliamentary Committee Hearings
      4.  Supreme Court of Canada Reference

DESCRIPTION AND ANALYSIS

   A.  Preamble  

   B.  Civil Marriage (Clause 2)
      1.  Parliament’s Jurisdiction Over Marriage
      2.  Charter Compliance
      3.  Effect of Legislative Recognition of Same-sex Marriage

   C.  Religious Marriage (Clause 3)

   D.  Certainty Clause (Clause 4)

   E.  Consequential Amendments (Clauses 5-15)

COMMENTARY

BILL C-38:  THE CIVIL MARRIAGE ACT*

Bill C-38, An Act respecting certain aspects of legal capacity for marriage for civil purposes, or the Civil Marriage Act, received first reading in the House of Commons on 1 February 2005.  The bill will, for the first time, codify a definition of marriage in Canadian law, expanding on the traditional common-law understanding of civil marriage as an exclusively heterosexual institution.  Bill C-38 defines civil marriage as “the lawful union of two persons to the exclusion of all others,” thus extending civil marriage to conjugal couples of the same sex.

BACKGROUND

   A.  Overview of Legislative Reforms to Date

Every jurisdiction in Canada prohibits discrimination based on sexual orientation in the provision of services, accommodation and employment.(1) The coming into effect in 1985 of section 15 of the Canadian Charter of Rights and Freedoms, the equality rights provision, influenced legislative reform in this area.  Section 15 has also been instrumental in the gradual development, since the early 1990s, of provincial and federal legislation to extend statutory entitlements of heterosexual conjugal couples to same-sex couples.  From 1992 through 1999, B.C. legislation amended the definition of “spouse” in numerous statutes to include persons of the same sex living in “marriage-like” relationships.  In 1999, Quebec legislators unanimously adopted omnibus legislation that amended the definition of de facto spouse [conjoint de fait] in the affected statutes to include same-sex couples.(2)  The same year also saw the enactment of the first federal legislation to provide unambiguously for same-sex benefits, the Public Sector Pension Investment Board Act (Bill C-78), whose amendments to affected statutes included replacing opposite-sex “surviving spouse” benefits with gender-neutral “survivor” entitlements. 

The pace of legislative reform accelerated significantly following the Supreme Court of Canada’s decision in the Ontario case of M. v. H., the first high court ruling to allow a section 15 Charter challenge to the legislated opposite-sex definition of “spouse.”(3) Although the Court’s decision was immediately concerned only with Ontario laws, its longer-term effects are apparent in virtually every jurisdiction. 

Legislators in British Columbia, Saskatchewan, Manitoba, Ontario, Newfoundland and Labrador, and Nova Scotia have since enacted a wide but non-uniform range of legislative measures providing for various same-sex entitlements; initiatives in New Brunswick and the Northwest Territories were fewer and narrower in scope.  In Nova Scotia and Manitoba, civil registration schemes for unmarried heterosexual and homosexual couples are also now in place.  In Quebec, a civil union regime governed by the same rules as apply to solemnization of marriage, entailing the rights and obligations of marriage and subject to formal dissolution rules, mirrors marriage.  In Alberta, the newly legislated status of “adult interdependent partner” for purposes of several family-related provincial statutes provides for rights and obligations of persons in a variety of non-married but not necessarily conjugal relationships involving interdependency.(4)

In the result, a patchwork of entitlements is in effect across the country.(5)  In addition, some provincial schemes reserve the term “spouse” for married partners, some for married and unmarried opposite-sex couples, and some extend the meaning of spouse to include same-sex partners.  

Federally, the Modernization of Benefits and Obligations Act (Bill C-23) enacted by Parliament in 2000 amended 68 statutes to effect equal application of federal laws to unmarried heterosexual and same-sex couples, and to extend to them some benefits and obligations previously limited to married couples.  Although the then Minister of Justice emphasized that Bill C-23 did not affect the institution of marriage, critics urged the government to define marriage in the bill.  Accordingly, the government inserted an interpretive amendment under which, “[f]or greater certainty, the amendments made by this Act do not affect the meaning of the word ‘marriage,’ that is, the lawful union of one man and one woman to the exclusion of all others.” 

   B.  Marriage and the Constitution

Judicial, political and legislative activity has clarified the legal rights of lesbians and gay men in Canada.  In recent years, there have been increasing calls for extending the institution of marriage to same-sex couples on the basis of constitutional equality rights.  These have now been sanctioned by the courts of seven provinces and one territory.  The following paragraphs review fundamental constitutional principles of marriage law in Canada, as well as the relevant case law.

The Constitution Act, 1867 divides legislative jurisdiction over family law.  Under the subsection 92(13) umbrella head of power, “Property and Civil Rights in the Province,” the bulk of family-related matters falls under provincial authority.  These matters include, among others, matrimonial property, spousal and child support other than under Divorce Act proceedings, adoption, succession and guardianship.(6)

Marriage itself is subject to more explicit constitutional treatment.  Subsection 91(26) of the Constitution Act, 1867 authorizes Parliament to legislate in relation to “Marriage and Divorce,” while subsection 92(12) gives provincial legislatures the power to enact laws in respect of “The Solemnization of Marriage in the Province.”     

It is, by now, well-settled law that Parliament has exclusive jurisdiction to regulate the legal capacity to enter into marriage, or matters of its essential validity.  By the same token, the provinces enjoy exclusive competence over matters of formal validity. 

There has always been a paucity of federal legislation relating to marriage.  In the Marriage (Prohibited Degrees) Act(7) – the sole statute currently in effect under Parliament’s section 91(26) authority over marriage – two substantive provisions codify prohibited degrees of “relatedness” or consanguinity.  A third section specifies that the Act “contains all of the prohibitions in law against marriage by reason of the parties being related.”  Marriage itself is not defined.

Provincial and territorial “solemnization of marriage” statutes are concerned primarily with conditions precedent to marriage of a ceremonial nature such as the issuance of licences, the publication of banns, the qualifications of celebrants and similar “formal” rules.  On occasion, the courts have sanctioned other provincial rules less clearly associated with the marriage ceremony, leading to some concern that, in the absence of national standards, requirements for entering into a valid marriage would become a matter of concurrent jurisdiction.(8)  According to the more widely held view, although Parliament has not, in the past, fully “exercised its jurisdiction to set out explicit criteria regarding the capacity to marry … [a]ny attempt by the provinces to do so would likely be unconstitutional and of no force and effect.”(9)

      1.  Prior to 2001

In the absence of a statutory definition of marriage, or of any statutory provisions barring same-sex marriage, the two leading cases in Canadian law to have considered the same-sex marriage issue over this period turned to British precedents.

         a.   North v. Matheson(10)

This pre-Charter case concerned an administrative refusal to register the Manitoba “marriage” of a same-sex couple.  In upholding this decision, the judge considered, most notably, the 1866 British ruling in Hyde v. Hyde and Woodmansee on the lawfulness in Britain of a polygamous marriage, which defined the institution of marriage, “as understood in Christendom, … as the voluntary union for life of one man and one woman, to the exclusion of all others.(11)  The Hyde decision is often cited as the source of the Canadian common-law requirement that a valid marriage be heterosexual.

Further authority was found in a 1970 British decision concerning the validity of a marriage between a man and a person who had undergone a male to female sex change.  It observed that “sex is clearly an essential determinant of the relationship called marriage, because it is and always has been recognized as the union of man and woman. …  [T]he characteristics which distinguish [marriage] from all other relationships can only be met by two persons of opposite sex.”(12)

         b.  Layland v. Ontario (Minister of Consumer and Commercial Relations)(13)

In this unsuccessful Charter challenge to the common-law rule restricting marriage to persons of the opposite sex, the majority ruling relied heavily on the North decision and its judicial antecedents.(14)  It concluded that “under the common law of Canada applicable to Ontario a valid marriage can take place only between a man and a woman and that persons of the same sex do not have the capacity to marry one another.”(15)  Furthermore, the federal common law did not violate section 15 of the Charter.  The question of whether same-sex unions “should receive the same benefits as parties to a marriage, without discrimination because of the nature of their unions, is another question.”(16)

The dissenting judge took the position that precedents relied upon by the majority should not be applied, “given what has taken place since the Charter was passed, and given the body of law which has applied s. 15 of the Charter.”(17) She disagreed that the federal common law restricts valid marriages to those between different-sex couples, observing that “the common law must grow to meet society’s expanding needs,”(18) and that, if such a prohibition did exist, it was unlikely to survive Charter scrutiny.

      2.  2001-2005

Over this period, 10 of 11 provincial and territorial courts to have considered the Charter challenges of gay and lesbian couples have invalidated the traditional common-law opposite-sex definition of marriage and replaced it by a redefinition based on equality rights grounds under section 15 of the Charter.  Only the British Columbia Supreme Court, in October 2001, dismissed a challenge to the province’s refusal to issue marriage licences to same-sex couples.  In May 2003, the British Columbia Court of Appeal overturned this ruling.(19)

In July 2002, three judges of the Ontario Superior Court of Justice (Divisional Court) dealing with a similar challenge found unanimously that the existing common-law rule defining marriage in opposite-sex terms represented an unjustified infringement of section 15 of the Charter.  The ruling was unprecedented in Canada.  In September 2002, the Cour supérieure du Québec became the second Canadian court to allow a same-sex marriage application.(20)  It declared the opposite-sex language in section 5 of the 2001 Federal Law-Civil Law Harmonization Act, No. 1 contrary to section 15 and of no force and effect(21) and extended the declaration to the interpretive provision in the federal Modernization of Benefits and Obligations Act  and to the Code civil provision that also characterized marriage as a heterosexual institution.  Both courts suspended their declarations of invalidity for a two-year period.

In June 2003, the Ontario Court of Appeal’s unanimous decision upheld the Divisional Court’s conclusions.(22) In per curiam reasons, the Court asserted, in part:

The Court invalidated the existing common-law definition of marriage and reformulated it to refer to the “voluntary union for life of two persons” with immediate effect in Ontario.  In July 2003, the British Columbia Court of Appeal and, in March 2004, the Cour d’appel du Québec(23) also enabled same-sex couples to marry legally in their respective provinces immediately.

Lower courts in Yukon, Manitoba, Nova Scotia, Saskatchewan, and Newfoundland and Labrador have since followed suit.  The federal government has either not opposed or not intervened in the last four cases.

      3.  Parliamentary Committee Hearings

In 2002, the federal Department of Justice released a paper entitled Marriage and Legal Recognition of Same-Sex Unions:  A Discussion Paper.  The  document was intended to enable focused debate by the then House of Commons Standing Committee on Justice and Human Rights, and others, around the question of how federal policy and legislation might address the same-sex marriage issue.  Accordingly, the then Minister of Justice asked the Justice Committee to study the question of whether, in the context of Canada’s constitutional framework and the traditional definition of marriage, Parliament should take steps to recognize same-sex unions, and if so, how.  Following approximately three months of hearings on this issue, the Committee was in the process of preparing its report to the House when, on 10 June 2003, the Ontario Court of Appeal released its ruling giving immediate effect to same-sex marriage in Ontario.  The Committee subsequently adopted a motion to support “the recent Ontario Court of Appeal decision which redefines the common-law definition of ‘marriage’ as ‘the voluntary union for life of two persons, to the exclusion of all others,’ while fully respecting freedom of religion, as guaranteed under the Charter of Rights.”  In light of these developments, the Committee report was not completed.

      4.  Supreme Court of Canada Reference

In June 2003, then Prime Minister Chrétien announced that the federal government would not appeal Ontario and B.C. appellate decisions, and would discontinue the federal appeal in the Quebec case.  In July, the government referred draft legislation to the Supreme Court of Canada in a constitutional reference.  The draft bill proposed a definition under which “Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.”  It addressed the issue of religious freedom, affirming that “nothing in this Act affects the freedom of officials of religious groups to refuse to conduct marriage ceremonies that are not in accordance with their religious beliefs.”

The government requested that the Court consider whether:  (1) the draft bill fell within Parliament’s exclusive legislative authority; (2) the bill’s extension of the capacity to marry to persons of the same sex was consistent with the Charter; and (3) the Charter’s freedom of religion guarantee shielded religious officials from being forced to perform same-sex marriages contrary to their religious beliefs.  In January 2004, the Minister of Justice, citing the importance of a full and informed debate, added a fourth question to the Supreme Court reference, asking whether the current opposite-sex requirement for civil marriage was consistent with the Charter.  In making this announcement, the Minister expressed the government’s continued support for principles of equality and religious freedom as set out in the draft legislation.

The Supreme Court of Canada heard arguments in the Reference on 6 and 7 October 2004, and issued its ruling on 9 December 2004.(24)  It found, in part, that:

The Court declined to answer the fourth question concerning whether the opposite-sex requirement for marriage was consistent with the Charter.  It found, in part, that the federal government intended to proceed with legislation irrespective of the Court’s opinion, and that married same-sex couples relying on the finality of judicial decisions in jurisdictions where such marriages were now legal had acquired rights that deserved protection.

DESCRIPTION AND ANALYSIS

Bill C-38 consists of a lengthy preamble and 15 clauses, 11 of which represent consequential amendments to 8 federal statutes.  The following paragraphs focus on the bill’s primary subject matter.

   A.  Preamble

Bill C-38’s substantive provisions are preceded by a 10-paragraph Preamble that will enter the annual statute book as an integral part of the legislation.  In recent years, statutory preambles seem to be employed more frequently as a means of establishing a context and rationale for legislation and of underscoring parliamentary intent in enacting it.  Preambles are considered interpretive rather than substantive, and may be relied upon by courts seeking to resolve ambiguity in the statute they introduce.

The preamble to Bill C-38 includes statements of principle and fact,

   B.  Civil Marriage (Clause 2)

Bill C-38’s key provision defines civil marriage as “the lawful union of two persons to the exclusion of all others.”  It is worth stressing that Bill C-38 is concerned exclusively with civil marriage, and does not affect gender-neutral survivor or common-law partner entitlements in federal legislation.

The terms of clause 2 are identical to those of the draft provision considered by the Supreme Court of Canada (the Court) in the December 2004 Reference decision, and reflect the substance of reformulations of the traditional common-law definition effected in provincial court rulings outlined above.  The following paragraphs set out the Court’s views on this provision.

      1.  Parliament’s Jurisdiction Over Marriage

In the Reference case, the Court noted, first, historic rulings recognizing that “s. 91(26) confers on Parliament legislative competence in respect of the capacity to marry, whereas s. 92(12) confers authority on the provinces in respect of the performance of marriage once that capacity has been recognized” (par. 18).  The Court determined that the clause in question, “in pith and substance, ... pertains to legal capacity for civil marriage.  Prima facie, therefore, it falls within a subject matter allocated exclusively to Parliament (s. 91(26))” (par. 19).  It further noted that “[l]egislative competence over same-sex marriage must be vested in either Parliament or the legislatures.  Neither s. 92(12) nor s. 92(13) can accommodate this matter.  Given that a legislative void is precluded, s. 91(26) most aptly subsumes it” (par. 34).

      2.  Charter Compliance

The Court also concluded that the draft provision, the predecessor to clause 2, complies with the Charter.  It observed that the provision represents a direct response to the findings of provincial courts, and “embodies the government’s policy stance in relation to the s. 15(1) equality concerns of same-sex couples.  This, combined with the circumstances giving rise to the [draft legislation] ... , points unequivocally to a purpose which, far from violating the Charter, flows from it” (par. 43).

      3.  Effect of Legislative Recognition of Same-sex Marriage

The Court considered arguments that legislating same-sex marriage discriminates against religious groups opposed to it and/or would result in a collision of equality rights with freedom of religion guarantees.  It found, on the first point, that the draft legislation reflected in clause 2 “withholds no benefits, nor does it impose burdens on a differential basis.  It therefore fails to meet the threshold requirements of … s. 15(1) analysis” (par. 45).  In the Court’s view, “[t]he mere recognition of the equality rights of one group cannot, in itself, constitute a violation of the rights of another” (par. 46).

On the second point, the Court declined to deal with an alleged collision of rights in the abstract, in the absence of a factual context.  It did not rule out the possibility that such a collision could occur should legislation recognizing same-sex marriage become law, adding that “[c]onflicts of rights do not imply conflict with the Charter; rather, the resolution of such conflicts generally occurs within the ambit of the Charter itself” (par. 52).  The Court noted that:

In the result, the Court concluded that the “potential for collision of rights raised by [the clause 2 predecessor provision] has not been shown on this reference to violate the Charter.  It has not been shown that impermissible conflicts – conflicts incapable of resolution under s. 2(a) – will arise” (par. 54).

   C.  Religious Marriage (Clause 3)

Clause 3 recognizes that officials of religious denominations may refuse to perform marriages that are at odds with their religious beliefs.  It is worth noting that the Court’s reference decision considered a differently worded provision of the draft legislation under which “[n]othing in this Act affects” religious officials’ freedom not to officiate at same-sex marriages.  The Court found that provision ultra vires Parliament’s constitutional authority, in that it related to those who may perform marriages, a matter over which provincial legislatures have exclusive competence under subsection 92(12) of the Constitution.(26) A revised version of that provision’s terms is set out in the preamble’s seventh paragraph where, as noted, it serves to provide context and  rationale for the legislation.

Ultimately, the Court observed, “it would be for the Provinces, in the exercise of their power over the solemnization of marriage, to legislate in a way that protects the rights of religious officials while providing for solemnization of same-sex marriage” (par. 55).  In this regard, the Court added, “[i]t should also be noted that human rights codes must be interpreted and applied in a manner that respects the broad protection granted to religious freedom under the Charter” (par. 55).  In the Court’s view, “it ... seems clear that state compulsion on religious officials to perform same-sex marriages contrary to their religious beliefs would violate the guarantee of freedom of religion under s. 2(a) of the Charter” (par. 58).

There may be questions as to whether the recognition language set out at clause 3 is sufficiently distinct from that of the more declaratory language of the former draft provision to pass constitutional muster.  The matter may not arise, in the absence of a legal challenge to the provision.

   D.  Certainty Clause (Clause 4)

This self-explanatory provision stipulates, for greater certainty, that a marriage is not voidable on the sole basis that the spouses are of the same sex.  It is understood that same-sex marriages will be voidable on the same grounds as apply to heterosexual marriages.

   E.  Consequential Amendments (Clauses 5-15)

Clauses 8, 9 and 15 set out the most obviously consequential amendments to legislation directly affected by Bill C-38.  Clause 8 replaces the opposite-sex definition of “spouse” in the Divorce Act with a gender-neutral reference to “two persons” who are married.  Clause 9 effects a similar replacement to opposite-sex language in section 5 of the Federal Law and Civil Law of the Province of Quebec Act concerning consent to marry.  Clause 15 repeals the interpretive provision in the Modernization of Benefits and Obligations Act which refers to the opposite-sex common-law definition of marriage.

Bill C-38 makes identical amendments to the definition of “personal body corporate” in both the Canada Business Corporations Act and theCanada Cooperatives Act (clauses 5 and 6).  The amendments make provision for control by individuals connected by a “legal parent-child relationship,” as opposed to the existing requirement for connection by blood relationship or adoption.  Connection by way of “common-law partnership” is also added, together with its gender-neutral definition, as effected in other federal statutes by the 2000 Modernization of Benefits and Obligations Act.

Clause 7 repeals a section of the Civilian War-related Benefits Act that refers to pension payments to a “husband” or “wife” in a pensioner couple.  The provision in question applies to World War II volunteer air raid precaution workers.

Bill C-38 amends provisions of the Income Tax Act to replace existing references to “natural parent” with “legal parent.”  It also removes the reference to an individual “of the opposite sex” from a provision related to the extended meaning of “spouse” and “former spouse” (clauses 10-12).

Finally, the bill makes technical amendments to the drafting of subsection 2(2) and 3(2) of the Marriage (Prohibited Degrees) Act to prohibit marriage between closely related persons of the same sex (clauses 13 and 14).

COMMENTARY

As anticipated, immediate reaction to Bill C-38 is mixed, both within and outside Parliament. 

Groups advocating for the traditional family describe the bill as an experiment that threatens the family unit.  Many religious organizations are highly critical of the bill’s purpose and effects.  These opponents argue primarily that it offers inadequate protection of clergy and others, such as civil marriage commissioners, who do not wish to recognize or officiate at same-sex marriages.  They point to provincial jurisdiction over solemnization of marriage, as confirmed in the Supreme Court of Canada Reference decision, as evidence that federal guarantees in this area lack substance.  Advocacy groups for gay and lesbian rights and human rights organizations, on the other hand, welcome the bill as landmark equality rights legislation that will end exclusion of and discrimination against gay and lesbian conjugal couples.  Spokespersons of some religious organizations have also expressed support for the legislation.

At the political level, the federal Conservative Party of Canada intends to amend the bill to restore the traditional common-law definition of marriage and establish a parallel regime for gay and lesbian couples.(27)  In their view, such a scheme would withstand Charter scrutiny,(28) despite recent broad legal opinion to the contrary.(29)  Provincial response to Bill C‑38 to date emanates largely from Alberta, where the Premier has, although acknowledging legal obstacles, reportedly expressed the government’s political determination to defend the traditional definition of marriage, and its intention to weigh options toward that end.

Op-ed comment to date also offers a range of views.  On the one hand, the criticisms of some religious groups and politicians are said to be deliberately misleading in light of the Supreme Court of Canada’s clear message that the Charter’s guarantee of freedom of religion prevails.  The position of the Conservative opposition is criticized as less than forthcoming, among other things, about the use of the notwithstanding clause in legislation to restore the opposite-sex definition of marriage, and the constitutionality of its civil union proposal for gays and lesbians.

On the other hand, the government is said to be less than truthful because, despite its present stance on religious freedom, a future Parliament or court could remove a religious group’s right to refuse to perform same-sex marriage.  There is a suggestion that Bill C-38 will eventually pit the rights of religious freedom and freedom of speech against minority rights.  According to another view, enactment of the legislation will not end the gay marriage debate in Alberta.  Finally, the failure of the Supreme Court of Canada’s Reference ruling to determine whether the opposite-sex definition of marriage is consistent with the Charter represents a missed opportunity to mitigate legal uncertainty and introduce order into the debate.