Homosexual marriage in Canada

The Homosexual marriage is legal through the Canada, since the adoption of the Loi on the civil wedding the July 20th 2005.

Contrary to the Homosexual marriage in the Netherlands, in Spain and in Belgium, a couple does not need to live in the province or the territory to marry there. For this reason, much from American couples came to Canada to marry there (see Homosexual marriage in the United States). Generally any marriage practiced in Canada is directly recognized in the United States and that the latter move towards a durable legal obstruction to the marriage of the of the same couples sex on their own territory, of the legal paradoxes are to be envisaged on a continental scale on this question. Moreover, at least in Ontario, it is necessary to live the province during one year for Divorce R, which will largely complicate the situation of the American homosexual couples married in Canada and wanting to divorce.

The right to the recognition of the unions in fact between joint of the same sex exists in the majority of the provinces and Canadian territories and at the federal level since 1999.

History

Before the adoption of this law, only eight of the provinces Canadian and a territory, are the majority (in term of population) of the thirteen provinces and territories of Canada, offered the marriage between joint same sex.

In each one of these areas, the marriage between joint of the same sex was legalized following lawsuits in which the judges determined as the existing law on the marriage (limiting it to the heterosexual couples) was anticonstitutional. Consequently, many homosexual couples benefitted from it to obtain licenses of marriage.

• the Ontario since the June 10th 2003;

• the Colombia-British since the July 8th 2003;
• the Quebec since the March 19th 2004;
• the territory of the Yukon since the July 14th 2004;
• the Manitoba since the September 16th 2004;
• the Nova Scotia since the September 24th 2004;
• the Saskatchewan since the November 5th 2004;
• Ground-New-and-Labrador since the November 5th 2004
• the New Brunswick since the June 23rd 2005.

Approximately 89% of the Canadians live in a province or a territory where the marriage between united same sex was legally recognized before the adoption of the law.

Legal decisions

Forerunners

In 1999, a decision of the Supreme court of Canada ( Mr. C. H. 2 R. C.S. 3) made so that the homosexual couples are included in the unions in fact. However, this decision does not legalize therefore the homosexual civil weddings.

• Text of the stop in '' Mr. '' C. '' H. '' (1999) 2 R. C.S. 3

Come thereafter from the decisions in three provinces forcing the federal government to grant the right to the marriage the homosexual couples within deadline a two years, after which the homosexual marriage would enter indeed automatically:

• in Ontario: Halpern and. Al v. Canada (Superior court of Ontario, the July 12th 2002)

• Text of the stop (in English)

• with the Quebec: Hendricks and Lebœuf C. Quebec (Superior court of Quebec, the September 6th 2002)

• Text of the stop

• with the Colombia-British: Barbel v. British Columbia 2003 BCCA 251 (Court of Appeal of the C-B, on May 1st 2003)

• Text of the stop (in English)

The federal government tries to carry these stops in call to the Supreme court of Canada, but it drops this process in June 2003 after the report/ratio of a parliamentary committee (see Ci-low).

The Ontarian decision

principal Article: Homosexual marriage in Ontario

In 2003, the petitioning couples of Halpern carries the decision of the supreme court in call, requiring that the provisions take effect immediately, without the two years deadline initially granted to the federal government.

June 10th, 2003, the Court of Appeal of Ontario confirms that the current law on the marriage enfreint the guarantees of equality of the Canadian Charte of the rights and freedoms by its restriction on the heterosexual couples. The court revokes the time granted before, ordering that the province immediately offers licenses of marriage to the homosexual couples. Ontario becomes thus the first jurisdiction in North America to legalize the merry marriage.

The town of Toronto immediately starts to offer the licenses to the of the same couples sex. The following day, the Public prosecutor of Ontario announces that the provincial government will conform to the decision.

The Court also decides that two couples being married before by using an old procedure of the Common law, the reading of the banns in a church, are legally married and this in a retroactive way.

• '' Halpern v. Canada (A.G.) '' - Ontario off Runs Appeal, 2003/06/10 (in English)

The September 13rd 2004, the Court of Appeal of Ontario stipulates that the Law on the Divorce is also unconstitutional since it excludes the of the same couples sex. The law is reinterpreted to include the homosexual marriages in order to allow appealing, a couple lesbian, to divorce itself.

The decision britanno-Colombian

principal Article: Homosexual marriage as a Colombia-British

The Court of Appeal of the Colombia-British makes a decision similar to that of the Court of Ontario the July 8th 2003. The stop wants that “any delay will have as a result the unequal application of the law between Ontario and the Colombia-British. ” Antony Porcino and Tom Graff become the first two men thereafter to be married legally as a Colombia-British.

• '' Barbeau v. British Columbia (A.G.) '' 2003 BCCA 406 (Court of Appeal of the C-B 2003/07/08) - text of the stop (in English)

The Québécois decision

principal Article: Homosexual marriage in Quebec

The March 19th 2004, the Court of Appeal of Quebec hears a call of the catholic League for the human rights against the judgment given in the case Hendricks and Lebœuf C. Quebec . Not only the Court rejects the call, but she orders that the decision takes effect immediately. The couple having gained the first lawsuit, Michael Hendricks and Rene Lebœuf, Marie on April 1st with the Law courts of Montreal.

• '' catholic Ligue for the human rights C. Hendricks '' (Court of Appeal of Quebec, 2004/03/19) - text of the stop

The decision yukonnaise

principal Article: Homosexual marriage in Yukon

The July 14th 2004, in the case of Dunbar & Edge v. Yukon & Canada 2004 YKSC 54, the Supreme court of the Yukon Territory emits a stop with the same fascinating effect forces immediately. However, rather than to take again the arguments based on the right to the equality guaranteed by the Charter, the Court adopts an innovating logic: since the provincial courses of call decided that the current law is unconstitutional, and since the Public prosecutor of Canada did not carry these appeal decisions, this law is unconstitutional through Canada, that this fact is recognized or not. Thus, a continuous restriction of the marriage on the heterosexual couples on Yukon would produce an unacceptable state of difference in rights between the provinces and territories.

Rob Edge and Stephen Dunbar, the petitioning couple, marry on July 17th.

• '' Dunbar & Edge v. Yukon & Canada '' 2004 YKSC 54 (canlii.ca) - text of the stop (in English)

The decision manitobaine

principal Article: Homosexual marriage in Manitoba

The September 16th 2004, judge Douglas Yard of the Court of the Bench of the Queen of Manitoba determines that the current law on the current definition is unconstitutional. The judge says being influenced by the former decisions in C-B, Ontario and with Quebec. (Radio-Canada)

The lawsuit was started by three couples requiring that the government of Manitoba emit licenses of marriage. As much the federal government that provincial declared that they will not dispute the lawsuit. One of the couples, Chris Vogel and Richard North, had tried to marry legally in 1974 but had lost their cause.

The Nova Scotian decision

principal Article: Homosexual marriage in Nova Scotia

In August 2004, three couples in Nova Scotia start a lawsuit of law against the provincial government asking for the emission of licenses of marriage the of the same couples sex. Neither the provincial government nor the federal one dispute this lawsuit. The September 24th 2004, judge Heather Robertson of the supreme Court of Nova Scotia decides that the current law is unconstitutional. (Radio-Canada)

The decision saskatchewannaise

principal Article: Homosexual marriage in Saskatchewan

In October 2004, two couples starts a lawsuit of law against the governments of Saskatchewan and Canada for the recognition of their marriage. Following the example former lawsuits, neither the federal government nor provincial oppose the lawsuit. November 5th, 2004, judge Donna Wilson accepts the plea and arrète in favor of the right to the homosexual marriage in Saskatchewan. (Radio-Canada)

The decision terreneuvienne-labradorienne

principal Article: Homosexual marriage in Ground-New-and-Labrador

Two couples of lesbians start a lawsuit on November 4th, 2004 so that the government ground-neuvien-labradorien recognizes the marriage between joint same sex. The court decides in their favor on December 21st, 2004 and the province announces its immediate conformity with this decision.

The decision néo-brunswickoise

principal Article: Homosexual marriage in New Brunswick

Four homosexual couples start a lawsuit in April 2005 so that the government néo-brunswickois recognizes the marriage between joint same sex. The court decides in their favor on June 23rd, 2005, giving to the government one 10 days period to conform to the decision.

The Canadian decision with the House of Commons

Evolution of the attitudes of the Canadians vis-a-vis the marriage of joint of the same the sex, as well as the legal stops, because a dramatic turn of the position of the Parliament during last the years.

The June 8th 1999 one introduces a motion with the House of Commons of Canada to reaffirm the definition of the marriage as being “the union for the life of a man and one woman other than any other form of union”. The resolution passes with a great majority, supported by the Prime Minister Jean Chrétien and her Liberal party of Canada, like by the official opposition the Canadian Alliance. The following year this definition is included in the Bill C-23, the Loi on the modernization of certain modes of advantages and obligations; the homosexual couples remain excluded from the full benefit of the marriage.

The question remakes surface in 2003, and the Standing Committee of the justice and the rights of the person of the House of Commons makes a formal study of the marriage between united same sex by the means of a series of public sittings through the country.

Thereafter of the decision of the Court of Appeal of Ontario allowing the homosexual marriages, this committee votes to recommend to the government not to carry this appeal decision.

• Official reports and testimonys of the Standing Committee of the justice and the rights of the person during the deliberations on the marriage of of the same couples sex

The civil statue is a provincial competence in Canada, but the definition of the marriage is a federal competence. The June 17th 2003, the Chrétien Prime Minister announces that the federal government will not carry the Ontarian decision in call. Its government will introduce a bill rather recognizing the homosexual marriages, but affirming the right of the Churches to decide which marriages to solemnize, a right which they already have under the terms of the Canadian Charter of the rights and freedoms.

A preliminary draft of this law is emitted on July 17th. He says:

1. The marriage is, on the civil level, the legitimate union of two people, other than any other person.

2. The present law is without effect on freedom of the religious authorities to refuse to proceed to marriages nonin conformity with their religious beliefs.

The September 16th 2003, Canadian Alliance requires of the Parliament to affirm by a free vote the hétérosexuelle definition of the marriage, using the same language as the motion of 1999. This vote is extremely different and very divisif. The Chrétien Prime Minister goes against his former position while opposing motion, just as the future Prime Minister Paul Martin and good number of the liberal caucus. However, several liberals support motion, and 30 deputies do not attend the meeting. Motion is rejected, 137 votes with 132.

Thereafter, the liberal government asked for a reference of the Supreme court of Canada, asking him to come to a conclusion about the constitutional cogency of the bill before it is introduced. In January 2004, the government added a question to the reference, measures denounced by several observers like a test to delay the process until after the elections in June 2004.

The questions put to the Supreme court are the following:

1. Does the Private bill relating to certain basic conditions of the civil wedding, attached, concern the exclusive competence of the Parliament of Canada? In the negative one, in which connection and up to what point?

2. If the answer to question 1 is affirmative, article 1 of the proposal, which grants to the people same sex the capacity to marry, is it conforms to the Canadian Charter of the rights and freedoms? In the negative one, in which connection and up to what point?

3. Does the freedom of religion, which guarantees the subparagraph 2a) Canadian Charter of the rights and freedoms, protect the religious authorities from the constraint to have to marry two people of the same sex contrary to their religious beliefs?

(Source: Ministry for Justice)