SAME SEX MARRIAGE IN CANADA
By: Natasha Bone
The institution of marriage has always held a central role in Canada. Many believe that because of its role in creating and nurturing families, it is the backbone of our society. Until recently, homosexual couples were excluded from this important institution. In the past year, however, Canadian courts in three historic decisions have dramatically changed the legal definition of marriage. These decisions were made against the backdrop of the Constitution, which gives legislatures the power to make laws concerning marriage and guarantees the rights that same-sex couples have used to challenge discriminatory marriage laws. This article therefore begins with a review of the relevant sections of the Constitution and the Charter.
The Constitution and the Charter
The power to create marriage laws is divided between the provinces and the federal government. According to section 91(26) of the Constitution Act  ("the Constitution") the federal legislature has the power to make laws concerning marriage and divorce. Through this power, Parliament has the power to define what a marriage is. The provinces, however, also have the power to influence Canadian marriage laws through s. 92(12) of the Constitution. This section gives provincial legislatures the power to pass laws concerning the formalities couples must go through in order to have a legally valid marriage. Provincial legislatures can pass laws on things such as the type of ceremony a couple must go through in order to get married, and what type of paperwork the couple couples must file in order to register the marriage.
Since the federal government is the level of government that has the power to define what a marriage is, it is the federal legislature that has the power to define whether marriage can include same-sex couples. This power, of course, is subject to the limitations set out in the Canadian Charter of Rights and Freedoms ("the Charter").  However, except for one law that applies only in Quebec (discussed below), the federal government has never exercised this power. There is no nation-wide federal statute that defines marriage as a union between a man and a woman. In order to find such a definition, we must look to judge-made rules found in the common law.
The definition of marriage comes from a decision made by the English House of Lords in 1866. This case was called Hyde v. Hyde and Woodmansee ("Hyde").  In that case, the House of Lords decided that English Christian marriage was defined as "a union between one man and one woman to the exclusion of all others." English and Canadian courts for over a century treated Hyde as standing for the proposition that same-sex marriages were not valid.
Once the Charter was enacted in 1982, however, Canadians began to bring cases challenging the common law bar to same-sex marriage. Most of these challenges were brought under s.15 of the Charter, the provision that guarantees Canadians the right to be free of discrimination before or under the law based on group characteristics such as race or gender. Sexual orientation is not specifically mentioned in s.15 as one of the prohibited grounds of discrimination, but it has been found by the Courts to be analogous to the prohibited grounds enumerated in s.15. This means that people who feel that a particular law discriminates against them on the basis of their sexual orientation can challenge the validity of that law.
In 1993 an Ontario couple used this right to challenge to common law bar to same-sex marriage. The case was called Layland v. Ontario (Minister of Consumer & Commercial Relations). In it, two out of a panel of three judges found that the common law bar did not discriminate based on sexual orientation. The reasoning for this decision was that the main purpose of marriage was to promote procreation, and that a same-sex marriage could not achieve this purpose.
EGALE v. Canada
More recently, three challenges to the marriage definition were brought forward all at once in different provinces (in B.C., Québec, and Ontario). The first of these cases to be decided by a trial court was EGALE Canada Inc. v. Canada.  The plaintiffs in this case were 8 gay couples, along with a gay rights group. The couples had sought marriage licenses from the B.C. Director of vital statistics. The Director denied these requests because of the common law bar on same-sex marriages. The couples asked the Court for licenses as well as a declaration that there was no common law bar to same sex marriage or, alternatively, if there was a bar, that it violated the Charter (under a number of sections, including section 15).
The federal government argued that there was a bar to same-sex marriages, and that it was found in Hyde. They argued that this traditional definition of marriage was the one followed in most nations of the world. They also argued that the purpose of marriage was procreative, and argued that this was the reason for the heterosexual character of marriage. A group who intervened in the case to help out the federal government side argued that since marriage was a heterosexual institution in 1867 when the Constitution Act was entrenched, the Constitution could give neither level of government the power to create a same-sex institution of marriage. They argued that any such change could only be brought about through a constitutional amendment.
In response to these arguments, the Supreme Court of B.C. found first, that the common law bar to same sex marriage in Hyde was law in B.C. Second, the Court held that the exclusion of same sex couples from marriage did discriminate based on sexual orientation, and that therefore it violated s.15 of the Charter. The Court found same sex couples were subjected to differential treatment, since, without being married, same-sex couples could not enjoy the legal benefits that married couples enjoy. These benefits included immigration advantages, the ability to acquire family-law-related rights without first living together for a period of time, and protection from having to testify against one another in legal proceedings. The court found that this treatment tended to reinforce existing prejudices against homosexuals.
The Court found, however, that despite this discrimination, the common law bar to homosexual marriage could be upheld under section 1, the "saving" provision of the Charter. This section provides that even where a law violates or limits one of the rights guaranteed by the Charter, it can be upheld if the violation of the right is one that is reasonable and justified in a free and democratic society. In this instance, the Court held that the violation of the couple’s s.15 rights was justified because the purpose of marriage was to encourage procreation. Since homosexual couples could not procreate without outside help, the Court reasoned that homosexual couples were justifiably excluded from the institution of marriage.
The Supreme Court also decided against the plaintiffs on the basis of the legislative powers granted by the Constitution Act. Referring to the arguments presented by the intervenors on the federal side, the trial judge held that the traditional Hyde definition of marriage applied in 1867, when the Constitution was created, and when same-sex unions were unknown in the society of the time. The trial judge decided that this meant that the federal government did not have the legislative power to change the institution of marriage so that it included same-sex unions. Any such change would have to come through constitutional amendment, a very long and difficult process. This decision was controversial, because the dominant view in Canada is that the Canadian Constitution is a living tree, which is able to grow and expand to accommodate our constantly-changing society.
The couples decided to appeal this result to the B.C. Court of Appeal. While they were waiting for the Court to hear their appeal, however, the two other challenges were decided by the Ontario and Quebec courts.
Halpern v. Canada
The first of these to be decided was the Ontario Case, Halpern v. Canada (A.G.). As in EGALE, same sex couples who had not been granted marriage licenses argued that there was no rule preventing the issuance of marriage licenses to same-sex couples in Ontario. If such a rule did exist, however, the couples argued that it violated s.15 (among several other provisions of the Charter).
With respect to the argument that there existed no rule against same sex marriages in Ontario, the Court found that, while there was no statutory bar, the common law bar applied in Ontario.
The Court was also presented with an argument that the Constitution did not give the federal government the power to create a same-sex institution of marriage, and that any such change would have to come through Constitutional amendment (this was similar to the argument presented in EGALE). The Court, however, rejected this argument, saying that it was an attempt to freeze the meaning of marriage as it was understood in 1867. The Court found this to be contrary to the living tree doctrine of constitutional interpretation.
Each judge on the panel came to the conclusion that the rule against same-sex marriages violated s.15. One judge found that procreation was not the legal base for the institution of marriage. Although procreation was important, it could now be achieved through means other than sexual intercourse. Also, the law is clear that the ability to have children is not a requirement for a heterosexual marriage (people who are unable to have children get married all the time). Furthermore, marriage has purposes other than child-bearing or child-rearing. These include companionship; intellectual, moral, and faith-based stimulation; shared economic interdependence; and love. This judge held that marriage represents "society’s highest acceptance of the self-worth and the wholeness of a couple’s relationship" and that the exclusion of gay couples from this institution based on their sexual orientation was an affront to their human dignity.
Another judge pointed to the differential treatment the denial of same-sex marriage had created. The judge reasoned that by denying same-sex couples the stamp of approval that marriage brought with it, the rule against same-sex marriage reinforced existing prejudices against gay people.
The Court found that these limitations on the couples’ s.15 rights could not be justified under s.1. The majority of the judges decided, however, that instead of declaring a new definition of marriage to be effective immediately, the federal government should be given 24 months to legislate a new definition of marriage that included same-sex couples.
Hendricks c. Québec
The next case to be decided was Hendricks c. Québec. Here, a couple applied for a declaration that any impediment to same sex marriage in Québec violated s.15 and was therefore unconstitutional. This case is somewhat different than the ones we have discussed thus far, because here the Court found that the bar to same sex marriage in Québec was not the common law rule found in Hyde, but rather a federal law that applied only in Québec. However, the Court in this case nonetheless came to many of the same conclusions as the court in Halpern. For example, the judge found that the definition of marriage did not have to be changed through a constitutional amendment, since the Constitution is a living tree, capable of adapting to changing notions of family and marriage. With respect to the s.15 challenge, the court found that the rule against same-sex marriage denied homosexuals the ability to choose the type of relationship they wished to have. Like the Court in Halpern, she found that procreation is not the overriding reason for marriage in today’s society. In her view, marriage was an exclusive, intimate, stable, mutually supportive relationship between two people. The judge therefore found the rule against same sex marriage to be discriminatory. She further found that this violation of s.15 could not be justified under s.1. She therefore declared the Québec statutory bar against same-sex marriage to be inoperable, but suspended the declaration for 24 months, to allow Parliament time to legislate a new definition of marriage.
The EGALE Appeal
After these cases were decided, the B.C. Court of Appeal decided the appeal in EGALE. Not surprisingly, the Court of Appeal came to many of the same decisions as the Ontario and Québec courts had in Halpern and Hendricks. Like those courts, the B.C. Court of appeal found that the trial judge in EGALE was wrong to decide that the common law bar to same sex marriage could only be changed by constitutional amendment.
As well, like the courts in those earlier cases, the Court of Appeal found that the bar to same-sex marriage violated s.15 of the Charter. The Court specifically agreed with the finding in Halpern that marriage today fulfills such needs as mutual care, support, and companionship, and is not only about procreation. The Court therefore found that the only basis for the distinction between homosexual and heterosexual couples is their sexual orientation, not their ability or inability to procreate. This distinction causes discrimination because it reinforces existing prejudices and disadvantages experienced by gay people.
The Court found that this violation of s.15 was not justifiable under s.1 of the Charter, and declared that that the new definition of marriage was "the lawful union of two persons to the exclusion of all others." This declaration was suspended, however, until July 2004. in coming to this decision, the Court also noted that it would be unacceptable for Parliament to set up a civil registry for same-sex unions rather than allowing same sex marriage, since this would simply reinforce the stigma of homosexual couple as second-class citizens.
After the EGALE appeal was decided, the Ontario Court of Appeal heard an appeal of Halpern. The Ontario Court of Appeal largely agreed with the reasons of the lower court, but disagreed with the remedy it provided. The Court of Appeal decided that the reformulated definition of marriage was to be effective immediately. Following this decision, the B.C. Court of Appeal in a subsequent case (Barbeau v. British Columbia (Attorney General)) , also declared the new definition of marriage to be effective immediately. The result is that same sex couples are now able to get married in B.C. and Ontario.
Although the Courts of Appeal in B.C. and Ontario have chosen not to wait for Parliament to legislate on same sex marriage, the federal government has drafted legislation entitled “an Act Respecting Certain Aspects of Legal Capacity for Marriage.” This legislation includes an updated definition of marriage that states that “marriage for civil purposes is the lawful union of two persons to the exclusion of all others.” The government has given this draft legislation to the Supreme Court of Canada for review. After the review process, it will be put to a free vote in the House of Commons.
Not surprisingly, however, there has been opposition to these efforts. For example, Alberta Premier Ralph Klein has announced that if the proposed federal legislation passes, the Province of Alberta will override it using the Charter’s notwithstanding clause (a little-used clause that allows the provinces to enact laws that violate Charter rights). On the federal stage, the Canadian Alliance introduced a motion asking federal MPs to reaffirm the Federal definition of marriage. Although the motion did not pass, it was defeated by only a narrow majority, indicating that there is a significant divide in Parliament on the issue of same sex marriage.From the tenacity of these opposition campaigns, it although there have been major victories in the form of the decisions in EGALE, Halpern, and Hendricks, same sex couples may have to continue to fight to maintain their hard-won right to marry.
 , 1867 (U.K.), 30 & 31 Vict., c.3
 Part I of the Constitution Act, 1982, being Schedule B to the Constitution Act 1982 (U.K.) 1982, c.11.
 (1866), L.R. & P.D. 130 (Ch)
 Corbett v. Corbett,  All E.R.; Re North and Matheson (1975) 52 D.L.R. (3d) 280 (Man. Co. Ct.)
 While challenges have been brought based on other Charter rights (including s.7 life liberty and security of the person, s.2(b) freedom of expression, s.2(d) freedom of association, and s.6 mobility rights (EGALE)), this article focuses on the equality challenges that have been brought, since these are the challenges that ultimately proved successful.
 Vriend v. Alberta,  1 S.C.R. 493
 (1993), 14 O.R. (3d) 658 (Div. Ct.).
 ,  B.C.J. No. 1995 (QL), 2001 1365
 The Court also rejected arguments based on other sections of the Charter, including s.7 (life liberty and security of the person), s.2(b) (freedom of expression), s.2(d) (freedom of association), and s.6 (mobility rights).
 Edwards v. Canada (Attorney General),  4 D.L.R. 98 (S.C.C.).
 (2002), 60 O.R. (3d) 321 (Div. Ct.)
  J.Q. no. 3816 (C.S.)
 Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c.4, s.5.
 2003 BCCA 406
 "Alberta to Defy Federal Same Sex Law" CBC News, http://www.cbc.ca/stories/2003/06/18/samesex030618
 this motion was followed up by a private members’ bill, which has yet to be voted on
 Allison Dunfield, “Alliance makes new bid to oppose same sex marriage” The Globe and Mail, September 18, 2003.