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Bluebook 21st ed. Andrea Battiston, The Legal History of Same-Sex Marriage in Canada, 39 CAN. L. LIBR. REV. 8 (2014).

ALWD 6th ed. Battiston, A. ., The legal history of same-sex marriage in canada, 39(1) Can. L. Libr. Rev. 8 (2014).

APA 7th ed. Battiston, A. (2014). The legal history of same-sex marriage in canada. Canadian Law Library Review, 39(1), 8-12.

Chicago 7th ed. Andrea Battiston, "The Legal History of Same-Sex Marriage in Canada," Canadian Law Library Review 39, no. 1 (2014): 8-12

McGill Guide 9th ed. Andrea Battiston, "The Legal History of Same-Sex Marriage in Canada" (2014) 39:1 Can L Libr Rev 8.

AGLC 4th ed. Andrea Battiston, 'The Legal History of Same-Sex Marriage in Canada' (2014) 39(1) Canadian Law Library Review 8.

MLA 8th ed. Battiston, Andrea. "The Legal History of Same-Sex Marriage in Canada." Canadian Law Library Review, vol. 39, no. 1, 2014, p. 8-12. HeinOnline.

OSCOLA 4th ed. Andrea Battiston, 'The Legal History of Same-Sex Marriage in Canada' (2014) 39 Can L Libr Rev 8

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The Legal History of Same-Sex Marriage in Canada *

By Andrea Battiston**

Abstract This annotated bibliography traces the struggle for legalization of same-sex marriage in Canada, highlighting key cases and legislation from across Canada as well as selected foreign influences.

Cette bibliographie annotee fournit un portrait des etapes ayant mene a la legalisation du mariage de mime sexe au Canada, en soulignant les decisions cles et la legislation pertinente a travers le Canada et en mettant en evidence certaines influences juridiques etrangeres sur ce debat.

Introduction

On July 20, 2005, Canada became only the fourth country in the world to legalize same-sex marriage nationally (following the Netherlands, Belgium, and Spain).' By this point, same-sex marriages were already being performed across the country, with the exception of Alberta, Prince Edward Island, and the Yukon, as a result of a series of court challenges. The first same-sex marriages occurred on June 10, 2003, following an Ontario Court of Appeal decision that declared such marriages legal, effective immediately.2

The lengthy legal history of same-sex marriage in Canada begins in 1974, when Richard North and Chris Vogel were refused a marriage license and subsequently took Manitoba's Vital Statistics Agency to court.3 Over the following decades, the ongoing debate produced a great deal of legislation and jurisprudence, the most significant of which are highlighted below.

The Early Stages

Jurisprudence

North v Manitoba (Recorder of Vital Statistics) (1974), 52 DLR (3d) 280, 20 RFL 112 (Man Co Ct).

In 1974, with the Canadian Charter of Rights and Freedoms4 still almost a decade in the future, Richard North and Chris Vogel applied for a marriage license, pointing out that no law specified that marriages must be between individuals of the opposite sex. They were denied, and took

the Vital Statistics Agency to court. This judgment upheld the denial of their right to marry, relying on dictionary definitions and an English case from 1866, Hyde v Hyde and Woodmansee,5 to support the limitation of marriage to opposite-sex couples.

Layland v Ontario (Minister of Consumer & Commercial Relations) (1993), 14 OR (3d) 658, 104 DLR (4th) 214 (Gen Div).

In 1992, after the Charter and its equality provisions were enshrined in the constitution, Todd Layland and Pierre Beaulne claimed the right to marry. This judgment of the Ontario Divisional Court, released in 1993, found that marriage was limited to individuals of the opposite sex, and that such a limitation is not discriminatory under section 15 of the Charter:

One of the principal purposes of the institution of marriage is the founding and maintaining of families in which children will be produced and cared for, a procedure which is necessary for the continuance of the species. ... That principal purpose of marriage cannot, as a general rule, be achieved in a homosexual union because of the biological limitations of such a union. It is this reality that is recognized in the limitation of marriage to persons of opposite sex. 6

The couple did not choose to appeal this ruling, but groups such as EGALE (Equality for Gays and Lesbians Everywhere) were determined to continue challenging the marriage restriction in court. 7

Egan v Canada, [1995] 2 SCR 513, 124 DLR (4th) 609.

James Egan and John Norris Nesbit, who had been living together for over 40 years, had applied for Nesbit to receive a spousal allowance under the provisions of Egan's old age pension. Their claim was rejected because the couple did not meet the definition of "spouses" because they were of the same sex. They began an action claiming that the definition contravened section 15(1) of the Charter, which they subsequently took all the way to the Supreme Court of Canada.

*cAndrea Battiston 2013. * Andrea Battiston is a recent graduate of the University ofToronto's Faculty of Information. Working with Susan Barker on a research guides project for the Bora Laskin Law Library confirmed her strong

interest in law librarianship. 1 Sylvain Larocque, Gay Marriage: The Story of a Canadian Social Revolution, translated by Robert Chodos, Louisa Blair & Benjamin Waterhouse (Toronto: James Lorimer & Company Ltd, 2006) at 269. 2 Ibid at 119. 3 /bid at 15. 4 Canadian Charterof Rights and Freedoms, Part lof the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 5 [1866] LR 1 P & D 130. 6 Layland vOntario (Minister of Consumer& Commercial Relations) (1993), 14 OR (3d) 658,104 DLR (4th) 214 (Gen Div) at paral7-18. 7 Larocque, supra note 1 at 21.

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In this judgment, the Supreme Court upheld the decision and declared the definition of "spouse" constitutional, claiming that it was justified by the fact that "marriage is by nature heterosexual" because opposite-couples are able to produce children." However, this judgment also recognized that "[s]exual orientation is a deeply personal characteristic" that "falls within the ambit of section 15 protection," 9 thereby establishing sexual orientation as a protected ground under the Charter's equality provisions.

Rosenberg v Canada (Attorney General) (1998), 38 OR (3d) 577, 98 DTC 6286 (CA).

This judgment by the Ontario Court of Appeal, in response to a claim involving private pension survivor benefits for individuals in same-sex relationships, struck down the definition of "spouse" in the Income Tax Act. The court found that the Act's exclusion of same-sex couples violated section 15 of the Charter in a way that was not justified by section 1. This and other related decisions led Parliament to introduce the Modernization of Benefits and Obligations Act 0 to avoid the expense and contentious debate of future court challenges."1

M vH, [1999] 2 SCR 3,171 DLR (4th) 577.

This case involved two women, M and H, who lived together as a couple for ten years but had since separated. M sued for alimony under the provisions of Ontario's Family Law Act, which required her to contest the law's opposite- sex definition of the word "spouse." The case eventually reached the Supreme Court of Canada.

The Supreme Court found the definition to be unconstitutional and gave the Ontario government six months to amend the relevant act. The court made clear its interpretation that protection from discrimination on the basis of sexual orientation meant protecting same-sex relationships as well:

The exclusion of same-sex partners ... promotes the view that M., and individuals in same-sex relationships generally, are less worthy of recognition and protection. It implies that they are judged to be incapable of forming intimate relationships of economic interdependence as compared to opposite-sex couples, without regard to their actual circumstances. ... [S]uch exclusion perpetuates the disadvantages suffered by individuals in same-sex relationships and contributes to the erasure of their existence. 12

The lawyers involved in the case hoped that same- sex couples showing a willingness to accept legal obligations would lead to rights in due course.13

Legislation

Modernization of Benefits and Obligations Act, SC 2000, c 12.

In response to court judgments such as Rosenberg and M v H, the government brought in this act to extend federal spousal benefits and obligations to all common- law couples, whether of the same or opposite sex. The Act amended 68 existing federal statutes, from the Agricultural Marketing Programs Act to the War Veterans Allowance Act, and included the Criminal Code, the Income Tax Act, and the Pension Act. To appease its opponents, the government included section 1.1, an interpretation provision stating, "For 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."

Litigation in the Provinces

Jurisprudence

EGALE Canada Inc v Canada (Attorney General), 2001 BCSC 1365, [2001] 11 WWR 685.

In this case, EGALE and a group of same-sex couples petitioned the Attorney General of British Columbia for a declaration either that same-sex marriages were not prohibited by statute or common law or that the prohibition violated their Charter rights. The Attorney General referred the question to the Supreme Court of British Columbia.

The resulting judgment found that same-sex marriages were prohibited in Canadian law, but that this prohibition was discriminatory: "There is now sufficient practical similarity between the economic and social consequences of opposite-sex and same-sex relationships that affording one but not the other the opportunity to acquire a legal and formal status discriminates in the substantive sense of the word." 14 However, the judgment continued, such discrimination was justifiable under section 1 of the Charter: "Because of the importance of marriage in the Canadian context, past and present, the salutary effect associated with the preservation of its opposite-sex core far outweighs the deleterious effect resulting from the refusal to provide legal status to same-sex relationships under the rubric of marriage."15

EGALE Canada Inc v Canada (Attorney General), 2003 BCCA 251, [2003] 7 WWR 22.

In this judgment, the British Columbia Court of Appeal overturned the lower court's decision. The court agreed that limiting marriage to opposite-sex couples is

8 Egan v Canada, [1995] 2 SCR 513, 124 DLR (4th) 609 at 22. 9 lbid at para5. SC 2000, c 12. 10 Larocque, supra note 1 at 29. 11 M vH, [1999] 2 12 SCR 3, 171 DLR (4th) 577 at para73. 13 Larocque, supra note 1 at 22. 14 2001 BCSC 1365 at paral 78, [2001] 11 WWR 685. 15 lbidat para 214.

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discriminatory and rejected the idea that this discrimination could be justified:

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 treatment. ... I do not think that the judgment under appeal can be supported on the ground that marriage ... is so essentially heterosexual as to be constitutionally incapable of extension to same-sex couples and in that respect immune from Charter scrutiny.16

In order to give the federal and provincial governments time to bring legislation into accord with the decision, the court suspended the application of the judgment until July 12, 2004, at which point same-sex couples would be able to marry in British Columbia.

EGALE Canada Inc v Canada (Attorney General), 2003 BCCA 406, 228 DLR (4th) 416.

In this judgment released on July 8, 2003, and following the Ontario Court of Appeal's decision in Halpern v Canada (Attorney General),17 the British Columbia Court of Appeal lifted the suspension of the application from its judgment from two months earlier, above. This meant that same-sex couples could marry in British Columbia, effective immediately.

Halpern v Canada (Attorney General) (2002), 60 OR (3d) 321, 215 DLR (4th) 223 (Sup Ct).

In this decision regarding the right of eight same- sex couples to marry, the Ontario Divisional Court refuted the key argument made by the other side of the case; that procreation was limited to opposite-sex couples and was essential to marriage:

There is much more to marriage as a societal institution, in my view, than the act of heterosexual intercourse leading to the birth of children. ... If heterosexual procreation is not essential to the nature of the institution, then the same-sex couples' sexual orientation is the only distinction differentiating heterosexual couples from homosexual couples in terms of access to the institution of marriage. ... [T] his differentiation is discriminatory of the same-sex couples' equality rights ... and cannot stand.'

In the court's view, the discrimination could not be justified; for example, there was no reason to believe that opening marriage to same-sex couples would be damaging to heterosexual marriages. The existing definition of marriage

was declared invalid, and the government was given two years to amend the law. In the event that it did not do so, same-sex couples would be able to marry as of July 12, 2004.

Halpern v Canada (Attorney General) (2003), 65 OR (3d) 161, 225 DLR (4th) 529 (CA).

The federal government appealed the Ontario Divisional Court's decision in Halpern v Canada (Attorney General) to the Ontario Court of Appeal, which upheld the decision that denying marriage to same-sex couples was discriminatory. The appellate court also went further, declaring that same-sex couples were eligible to marry effective immediately:

There is no evidence before this court that a declaration of invalidity without a period of suspension will pose any harm to the public, threaten the rule of law, or deny anyone the benefit of legal recognition of their marriage. ... In our view, an immediate declaration will simply ensure that opposite-sex couples and same-sex couples immediately receive equal treatment in law.19

The Toronto City Clerk was ordered to deliver marriage licenses to the applicant couples. Twenty-one same-sex couples were married that very day.20

Hendricks c Qu6bec (Procureur g6n6ral), [2002] RJQ 2506, [2002] RDF 1022 (CS). 2 1

In this judgment, the Quebec Superior Court responded to Michael Hendricks and Rene Leboeuf's petition requesting the right to marry. The court declared that excluding same-sex couples from marriage was discriminatory, and that civil unions (available under Quebec's An Act instituting civil unions and establishing new rules of filiation)22 were not an acceptable substitute because they "only serve to perpetuate [same-sex couples'] special status." 23 The court also rejected the idea that procreation is the sole reason for marriage and pointed out that the historic involvement of religion in marriage did not mean that religious groups should continue to define it: "The state must ensure respect for each citizen, but no group has the right to impose its values on others or define a civil institution." 24

The application of the ruling was suspended for two years, to allow legislators to revise the law.

Catholic Civil Rights League v Hendricks, [2004] RJQ 851, 238 DLR (4th) 577 (CA).

16 EGALE Canada Inc, 2003 BCCA 251 at paras 178-179, [2003] 7 WWR 22. 17 (2003), 65 OR (3d) 161, 225 DLR (4th) 529 (CA). 18 Halpern v Canada (Attorney General) (2002), 60 OR (3d) 321, 215 DLR (4th) 223 (Sup Ct) at paras70, 81. 19 Halpern, supra note 17 at 153. 20 Larocque, supra note 1 at 127. 21 This decision was not reported in English. However, it is discussed and quoted from in English in Larocque, supra note 1 at 87-89. 22 SO 2002, c 6. 23 Hendricks c Quebec (Procureurg6neral), [2002] RJO 2506, [2002] RDF 1022 (CS) at paral 41, as translated in Laroque, supra note 1 at 87-89. 24 Hendricks, ibid at paral 64, as translated in Laroque, ibid at 87-89.

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The Attorney General of Quebec declined to appeal the decision in Hendricks c Qu6bec (Procureur g6n6ral). However, the Catholic Civil Rights League (CCRL), which had been an intervener in the preceding case, did choose to appeal. In this judgment, the Quebec Court of Appeal rejected the CCRL's interest in the case and declared the earlier judgment to be effective immediately, meaning that same-sex couples in Quebec were now free to marry.

Federal Involvement

Jurisprudence

Re Same-Sex Marriage, 2004 SCC 79, [2004] 3 SCR 698.

On June 16, 2003, the federal government asked the Supreme Court of Canada to answer three questions about its proposed same-sex marriage legislation. On January 26 of the following year, the government added a fourth question. The Supreme Court held hearings in October 2004 and released its reference on December 9, 2004.

The first question was whether the proposed legislation was in keeping with the federal government's legislative authority, and the court answered that it was. 25 The second question asked, "[I]s section 1 of the proposal, which extends capacity to marry to persons of the same sex, consistent with the Canadian Charter of Rights and Freedoms?" 26 The court answered in the affirmative, saying that the legislation "points unequivocally to a purpose which, far from violating the Charter, flows from it."27 The court also specifically mentioned that "[c]ivil unions are a relationship short of marriage," 28 although it had not been asked to comment on this point. The third question asked whether the freedom of religion provisions found in the Charterwould protect religious officials from being forced to perform same- sex marriages if such marriages violated their beliefs, and the court responded that they would do So. 29 The court had also been asked a fourth question, whether limiting marriage to partners of the opposite sex violated the Charter, but they refused to comment on this matter, since to do so would involve commenting on decisions of lower courts that had not been appealed and should therefore be considered settled .30

Legislation

Civil Marriage Act, SC 2005, c 33.

As Bill C-38, the federal government's same-sex marriage legislation received first reading in the House of

Commons on February 1, 2005.1 This bill was extensively debated at second reading and by a legislative committee, and eventually passed third reading on June 28. The Senate and its Standing Committee on Legal and Constitutional Affairs further debated the bill before passing it on July 19. It received royal assent the following day.

The act declares that "Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others."32 It goes on to specify that "officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs" without danger of losing any benefit or facing any sanction.3 3 The act also includes amendments to eight other acts, including the Divorce Act, the Income Tax Act, and the Modernization of Benefits and Obligations Act.

Influences

Jurisprudence

Hyde v Hyde and Woodmansee (1866), [1866] LR 1 P & D 130.

This English polygamy case from 1866 contains the common law definition of marriage that was still standing over a century later when the fight for same-sex marriage began: "Marriage as understood in Christendom is the voluntary union for life of one man and one woman, to the exclusion of all others." 34 The British Columbia Supreme Court upheld the definition in EGALE, 35 and the Ontario Court of Appeal debated creating a new common law definition in Halpern, 36 but ultimately left redefining marriage to the legislature.

Brown v Board of Education, 347 US 483 (1954).

This United States Supreme Court case from 1954 dealt with school segregation and introduced the principle that "separate but equal" is inherently discriminatory. This argument was used in the campaign for same-sex marriage to support the idea that civil unions were an unacceptable substitute for marriage. 3 7

Loving v Virginia, 388 US 1 (1967).

In this judgment from 1967, the United States Supreme Court overturned the laws prohibiting interracial marriage. Lawyers arguing in favour of same-sex marriage pointed to this case as evidence that marriage is an evolving institution,' and the case was cited in the EGALE and Halpern cases.

25 Re Same-Sex Marriage, 2004 SCC 79 at paral 9, [2004] 3 SCR 698. 26 lbid at para2. 27 lbid at para43. 28 lbid at para33. 29 lbid at para52. 30 lbid at para7l. 31 Bill C-38, An Act respecting certain aspects of legal capacity for marriage for civil purposes, 1st Sess, 38th Parl, 2005.

32 Civil Marriage Act, SC 2005, c 33, s 2. 33 Ibid, ss 3-3.1. 34 Hyde, supra note 5 at 130. 35 Supra note 14. 36 Supra note 17. 37 Larocque, supra note 1 at 71. 38 ibid at 68.

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Legislation

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

Introduced in the early 1980s, the Canadian Charter of Rights and Freedoms was the central document that allowed for the expansion of gay rights and eventually for same-sex marriage. All the Canadian post-Charter decisions discussed above base their arguments on the relevant provisions of the Charter.

Section 15(1) states that "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination

and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." The Egan decision confirmed that section 15(1) should be interpreted to include sexual orientation. 3 9

However, if a law is found to be discriminatory, it can still remain a law if the court is convinced that the limitation of the right is "demonstrably justified in a free and democratic society."40 Initially, the denial of the right of people of the same sex to marry was found to meet this test,4 1 but later cases rejected this argument. 4 2

39 Supra note 8. 40 Charter, supra note 4, s 1. 41 See eg EGALE Canada, supra note 14. 42 See eg Halpern, supra note 18.

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