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File:Maple Leaf (from roundel).png  Same-sex marriage in Canada
Legal
Civil Marriage Act
Reference re Same-Sex Marriage
Parliament
38th House · 38th Senate
39th House · 39th Senate
Same-sex marriage by province
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Civil unions in Quebec
Adult interdependent relationship in Alberta
 

The Civil Marriage Act (full title: "An Act respecting certain aspects of legal capacity for marriage for civil purposes") was legislation legalizing same-sex marriage in Canada. It was introduced as Bill C-38 in the first session of the 38th Canadian Parliament on February 1, 2005. It passed the House of Commons on June 28, 2005, and the Senate on July 19, 2005. The Act became law when it received Royal Assent on July 20, 2005. As usual for federal legislation in Canada, the Act also includes a French text of equal force to the English under the title Loi sur le mariage civil, or in full, Loi concernant certaines conditions de fond du mariage civil. Prior to the passage of the Act, the opposite-sex common-law definition of marriage had already been struck down by courts in eight provinces and the Yukon Territory.

Contents

The Act

This is the Act's official legislative summary:

This enactment extends the legal capacity for marriage for civil purposes to same-sex couples in order to reflect values of tolerance, respect and equality, consistent with the Canadian Charter of Rights and Freedoms. It also makes consequential amendments to other Acts to ensure equal access for same-sex couples to the civil effects of marriage and divorce.[1]

The short title of the act (Civil Marriage Act) is defined in Section 1. Sections 2 through 4 form the substance of the Act, and were the key points of contention during its debate in the House of Commons and the Senate. Section 3.1 was added with an amendment during the committee stage, and was subsequently adopted by the House of Commons.

Marriage - certain aspects of capacity
2. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.
Religious officials
3. It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs.
Freedom of conscience and religion and expression of beliefs
3.1 For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.
Marriage not void or voidable
4. For greater certainty, a marriage is not void or voidable by reason only that the spouses are of the same sex.

The remaining sections are "consequential amendments" that simply adjust the wording of existing acts to conform to this one.

Politics

As a government bill, C-38 represented the official position of Paul Martin's Liberal government, and the cabinet were thus bound to vote in its favor. Liberal backbenchers and members of the Conservative Party and Bloc Québécois had a free vote. In accordance with its party policy on LGBT rights, the New Democratic Party (NDP) whipped its members in favour. Bev Desjarlais defied the whip and was removed from her critic position. (She was not nominated for the next election by her riding association, and subsequently chose to sit as an independent for the remainder of the session.) Conservatives tended to vote against the Act, while Bloquistes tended to vote in favour. At least two cabinet ministers stepped down to vote against the bill. Joe Comuzzi resigned just hours before the final vote on the Act, and Martin lamented his leaving. As expected, Comuzzi voted against the Act.

The composition of Parliament was such that the prevailing opinion among political commentators indicated the bill would likely pass the House (see a detailed analysis at members of the 38th Canadian Parliament and same-sex marriage). Although there was some challenge to it, this opinion was verified with a 158-133 vote at third reading in the House of Commons on June 28. The bill passed in the Senate on July 19, with a 47-21 vote, with 3 abstentions.

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The legislative process

See [2] for the full history of the bill.

The bill was given its first reading on February 1, 2005 after its introduction by Justice minister Irwin Cotler. C-38 was written on the basis of a draft bill produced by then-Justice minister Martin Cauchon in 2003, which had been submitted to the Supreme Court of Canada in December 2004 as the reference question Re: Same-Sex Marriage.

Due to the government's tenuous minority position, there was a strong possibility that the government could have fallen on a motion of confidence through the budget bills, causing the bill to die on the order paper. It would then have been up to a new post-election government to re-introduce the bill affirming same-sex marriage (or to introduce a bill, of uncertain constitutionality, defining marriage as one man and one woman). However, the government survived the last of the budget votes on June 23, 2005, and successfully passed a motion to extend the current sitting of Parliament. In order to pass the motion extending the session, the Liberals provided a written promise to the Bloc Québécois that they would bring C-38 to a vote before the end of the current session.

Finally, on June 28, the Act was passed on third reading by the House of Commons; 158 voting in favour, 133 voting against. On July 19, it passed the Senate by a 47-21 vote with 3 abstentions, and received Royal Assent (thereby becoming law) on July 20.

A summary of the legislation's progress is given below.

Stage House of Commons Senate
Introduction and First Reading 1 February 2005 June 29
Second Reading Debate February 16 to May 4 July 4 to 6
Second Reading May 4 July 6
Committee Name Special Committee on Bill C-38 Legal and Constitutional Affairs
Committee Stage May 5 to June 15 July 11 to 14
Committee Report June 16 July 18
Debates at Report Stage June 27 -
Report Stage Vote June 28 -
Third Reading Debate June 28 July 19
Third Reading and Passage June 28 July 19
Royal Assent July 20

Chronology

House of Commons

  • February 1, 2005 - Cotler introduces the bill and the House grants first reading. Accordingly, it is designated Bill C-38 and published.
  • February 2, 2005 - Conservative support for the bill doubles to four MPs as former Progressive Conservatives Jim Prentice and Gerald Keddy announce they will vote in favour. Belinda Stronach (who later became a Liberal cabinet minister) and James Moore were already on record as being in favour.
  • February 8, 2005 - The Calgary-based Canada Family Action Coalition [3] seeks to boycott Famous Players Theatres because of a ten-second ad that urged moviegoers to contact their MPs to say they support same-sex marriage. They refused to buy an ad when they learn it was paid for by Salah Bachir on behalf of Canadians for Equal Marriage.
  • February 16, 2005 - Second reading begins on the bill with speeches by Prime Minister Paul Martin; Opposition Leader Stephen Harper; Bloc Québécois leader Gilles Duceppe; and NDP human rights critic Bill Siksay. [4]
  • April 12, 2005 - The Conservative Party's motion against the bill is defeated 164-132 against.
  • May 4, 2005 - Bill C-38 passes second reading in the House of Commons with a final vote of 164-137 for.
  • May 5, 2005 - Bill C-38 has its 1st special legislative committee meeting to study the bill, to listen from witnesses both against and for the bill, as well as propose amendments.
  • May 19, 2005 - Paul Martin's minority government survives a close (153-152) motion of confidence; with the Liberals still in power and Stephen Harper's Conservatives hinting that they'll back off future votes of non-confidence. Bill C-38 showed a strong promise of being made law (after a 3rd reading and vote) sometime before Parliament adjourns for the summer as the Prime Minister indicated MPs may sit in the summer, and the Senate would deal with the bill in July.
  • June 15, 2005 - Paul Martin's minority government survives no fewer than 16 confidence votes in the House of Commons. A defeat on any of them would have forced an election. But in the end, there was no repeat of the single-vote squeaker win of May 19. The closest vote passed 153 to 149; Gurmant Grewal is on stress leave over the tape scandal, two other conservative MPs are sick with cancer, and Thibault from the BQ is away due to the passing away of her father. As well, a series of public opinion polls released just days earlier all showed the Liberals in the lead, one of them released just a week ago showing the Liberals have a 14% lead over the Tories. The Tories seem themselves to not be wanting an election now, either.
  • June 15, 2005 - It is appearing less likely the bill will be out of 3rd reading stage by the time MPs recess from the summer on June 23 (unless sittings area extended) due to Conservatives stalling the budget bill (C-48), and the Government wants to deal with C-48 before C-38. The Government can invoke closure and force a vote on C-38 immediately, but it seems unlikely to happen since even the Liberal Government has disgruntled MPs against C-38 that want more debate now that the committee has reported. Weeks ago, Pat O'Brien left the Liberal caucus over the same-sex marriage legislation, that he felt was being rushed through the Commons. Cotler says the Government is where they expected to be which is now at Report Stage and that although he wants to see the legislation passed by the summer, he's only the Minister of Justice.
  • June 16, 2005 - The special legislative committee studying C-38 reported back to the House of Commons, with an amendment designed to help further protect religious officials who are against performing a same-sex marriage, and that those opposed to same-sex marriage should be able to speak their mind. Another amendment will be finalized soon that protects religious officials from losing their charitable tax status.
  • June 23, 2005 - Traditionally, it is around this date that the House of Commons closes. But with Bill C-38 in the process, MPs of the Liberal, Bloc and NDP parties vote to extend the sitting time through the following week to pass Bill C-38 in third and final reading. The same night, the budget bill (Bill C-48) passes after a late night snap vote is called, ending the threat by Bill C-38 opponents to derail the bill by defeating the budget thereby bringing down the government and forcing a general election.
  • June 27, 2005 - A late night motion for time allocation is passed 163 to 106 limiting further debate on Bill C-38 to nine hours: one before concurrence on the report and eight thereafter. The sitting, which extended until the early morning hours of the next day, ends with a series of votes on proposed amendments in which nine amendments proposed by same-sex marriage opponents are defeated. The report is then concurred in. This closes the amendment stage and frees the House to begin final debate on third reading.
  • June 28, 2005 - Bill C-38 passes its final reading a few minutes after 21:00 EST, 158-133, through the House of Commons[5]. Liberal cabinet ministers were ordered by Prime Minister Paul Martin to vote for the legislation, while it remained a free vote for Liberal backbench MPs. Joe Comuzzi, a traditional opponent of same-sex marriage, resigned from Cabinet and voted against the bill. Almost all New Democrat and Bloc Québécois MPs voted in favour of the bill, while the Conservative MPs were virtually unanimous in voting against it. Stephen Harper made a controversial claim that "the law lacks legitimacy because it passed [only] with the support of the separatist Bloc party", and a majority of the federalist side was against. NDP MP Bev Desjarlais is stripped of her position in the NDP's shadow cabinet as Transport and the Canadian Wheat Board. She later lost her riding association's nomination for the riding of Churchill. The Bloc and the Conservatives declared C-38 a free vote.

Senate

  • June 29, 2005 - First reading of Bill C-38 occurred in the Senate[6]. Debate on second reading was then scheduled for July 4 and the forthcoming days.
  • July 4, 2005 - The debate on second reading begins with Senator Serge Joyal as mover of the bill. Senator Gerry St. Germain argues against the bill and Senator Jack Austin concludes the first day of debate arguing for the bill's adoption.[7] The government introduces a notice of motion for time allocation that would restrict debate on the bill to six hours.[8]. Debate on second reading is to continue the next day.
  • July 5, 2005 - Debate on second reading continued, although the actual debate occurred only for a few minues. This was then followed by a long and heated debate on whether to invoke closure (rather than on the main bill).[9] Closure was invoked by a margin of 40 to 17 with 2 abstentions.[10]
  • July 6, 2005 - The Senate passed Bill C-38 on second reading by a margin of 43 to 12. The Bill went to the Committee on Legal and Constitutional Affairs.[11]
  • July 14, 2005 - The Committee on Legal and Constitutional Affairs finished seeing witnesses, and performed a clause-by-clause consideration. [12]
  • July 18, 2005 - The Committee reported back to the Senate without amendment, and the final debate was then scheduled to start the next day. Unanimous consent required to proceed directly to a vote on third reading was denied.[13]
  • July 19, 2005 - Debate on third reading of Bill C-38 began in the Senate. An attempt to delay third reading of the bill by six months was defeated 19 to 52, and an amendment to the bill that would have declared "traditional marriage" as being between a man and a woman and "civil marriage" as between two persons failed, 24 to 46, with 4 abstentions. Shortly after 11 p.m., the Senate passed Bill C-38 on third and final reading by a margin of 47 to 21, with 3 abstentions.[14]

Royal Assent

See also

External links

Wikisource has original text related to this article:

Source material

Up to date as of January 22, 2010

From Wikisource

Civil marriage act

Paul Martin's February 2005 speech on the Same-Sex Marriage Bill C-38. (now known as the Civil Marriage Act)


As Reported by Hansard:

Mr. Speaker, I rise today in support of Bill C-38, the Civil Marriage Act. I rise in support of a Canada in which liberties are safeguarded, rights are protected and the people of this land are treated as equals under the law.

This is an important day. The attention of our nation is focused on this chamber in which John Diefenbaker introduced the Bill of Rights, and in which Pierre Trudeau fought to establish the Charter of Rights and Freedoms.

Our deliberations will not be merely about a piece of legislation or sections of legal text. More deeply they will be about the kind of nation we are today and the nation we want to be.

This bill protects minority rights. This bill affirms the charter guarantee of religious freedom. It is that straightforward and it is that important.

That is why I stand before members here today and before the people of our country to say that I believe in and I will fight for the Charter of Rights. I believe in and I will fight for a Canada that respects the foresight and the vision of those who created and entrenched the charter. I believe in and I will fight for a future in which generations of Canadians to come, Canadians born here and abroad, have the opportunity to value the charter as we do today, as an essential pillar of our democratic freedom.

There have been a number of arguments put forward by those who do not support this bill. It is important and it is respectful to examine them and to assess them. Let me do so now.

First, some have claimed that, once this bill becomes law, religious freedoms will be less than fully protected. This is demonstrably untrue. As it pertains to marriage, the government’s legislation affirms the Charter guarantee: that religious officials are free to perform such ceremonies in accordance with the beliefs of their faith.

In this, we are guided by the ruling of the Supreme Court of Canada, which makes clear that in no church, no synagogue, no mosque, no temple—in no religious house will those who disagree with same sex unions be compelled to perform them. Period. That is why this legislation is about civil marriage, not religious marriage.

Moreover, and this is crucially important, the Supreme Court has declared unanimously:

--the guarantee of religious freedom in section 2(a) of the Charter is broad enough to protect religious officials from being compelled by the state to perform civil or religious same-sex marriages that are contrary to their religious beliefs.

The facts are plain. Religious leaders who preside over marriage ceremonies must and will be guided by what they believe. If they do not wish to celebrate marriages for same sex couples, that is their right. The Supreme Court says so and the charter says so.

One final observation on this aspect of the issue: Religious leaders have strong views both for and against this legislation. They should express them. Certainly, many of us in this House, myself included, have a strong faith, and we value that faith and its influence on the decisions we make.

But all of us have been elected to serve here as parliamentarians. And, as public legislators, we are responsible for serving all Canadians and protecting the rights of all Canadians.

We will be influenced by our faith but we also have an obligation to take the widest perspective—to recognize that one of the great strengths of Canada is its respect for the rights of each and every individual, to understand that we must not shrink from the need to reaffirm the rights and responsibilities of Canadians in an evolving society.

The second argument ventured by opponents of the bill is that government ought to hold a national referendum on this issue. I reject this, not out of a disregard for the view of the people, but because it offends the very purpose of the charter.

The charter was enshrined to ensure that the rights of minorities are not subjected--are never subjected--to the will of the majority. The rights of Canadians who belong to a minority group must always be protected by virtue of their status as citizens, regardless of their numbers, and these rights must never be left vulnerable to the impulses of the majority.

We embrace freedom and equality in theory. We must also embrace them in fact.

Third, some have counseled the government to extend to gays and lesbians the right to “civil union”. This would give same sex couples many of the rights of a wedded couple, but their relationships would not legally be considered marriage. In other words, they would be equal, but not quite as equal as the rest of Canadians.

The courts have clearly and consistently ruled that this option would offend the equality provisions of the charter. For instance, the British Columbia Court of Appeal stated that, and I quote: “Marriage is the only road to true equality for same sex couples. Any other form of recognition of same sex relationships... falls short of true equality”.

Put simply, we must always remember that “separate but equal” is not equal. What is more, those who call for the establishment of civil unions fail to understand that the Government of Canada does not have the constitutional jurisdiction to do so. Only the provinces have that. Only the provinces could define such a regime, and they could define it in 10 different ways, and some jurisdictions might not bother to define it at all. There would be uncertainty. There would be confusion. There would certainly not be equality.

Fourth, some are urging the government to respond to the decisions of the courts by getting out of the marriage business altogether. That would mean no more civil weddings for any couples.

It is worth noting that this idea was rejected by the major religions themselves when their representatives appeared before the Standing Committee on Justice and Human Rights in 2003. Moreover, it would seem to be an extreme and counterproductive response for the government to deny civil marriage to opposite sex couples simply so that it can keep it from same sex couples. To do so would simply be to replace one form of discrimination with another.

Finally, there are some who oppose this legislation who would have the government use the notwithstanding clause in the Charter of Rights to override the courts and reinstate the traditional definition of marriage. And really, this is the fundamental issue here.

Understand that in seven provinces and one territory, the lawful union of two people of the same sex in civil marriage is already the law of the land. The debate here today is not about whether to change the definition of marriage—it has been changed. The debate comes down to whether we should override a right that is now in place. The debate comes down to the charter, the protection of minority rights, and whether the federal government should invoke the notwithstanding clause.

I know that some think we should use the clause. For example, some religious leaders feel this way. I respect their candour in publicly recognizing that because same sex marriage is already legal in most of the country, the only way—the only way—to again make civil marriage the exclusive domain of opposite sex couples is to use the notwithstanding clause.

Ultimately, there is only one issue before the House in this debate. For most Canadians, in most parts of our country, same sex marriage is already the law of the land. Thus, the issue is not whether rights are to be granted. The issue is whether rights that have been granted are to be taken away.

Some are frank and straightforward and say yes. Others have not been so candid. Despite being confused--

An hon. member: Who's confused?

Right Hon. Paul Martin: You are.

Despite being confronted with clear facts, despite being confronted with the unanimous opinion of 134 legal scholars, experts in their field, intimately familiar with the Constitution, some have chosen to not be forthright with Canadians. They have eschewed the honest approach in favour of the political approach. They have attempted to cajole the public into believing that we can return to the past with a simple snap of the fingers, that we can revert to the traditional definition of marriage without consequence and without overriding the charter. They are insincere. They are disingenuous. And they are wrong.

There is one question that demands an answer, a straight answer, from those who would seek to lead this nation and its people. It is a simple question. Will the notwithstanding clause be used to overturn the definition of civil marriage and deny Canadians a right that is guaranteed under the charter?

This question does not demand rhetoric. It demands clarity. There are only two legitimate answers: yes or no. Not the demagoguery we have heard, not the dodging, not the flawed reasoning, not the false options, but simply yes or no. Will we take away a right that is guaranteed under the charter? I, for one, will answer that question and I will answer it clearly. I will say no.

The notwithstanding clause is part of the Charter of Rights. But there is a reason that no prime minister has ever used it. For a prime minister to use the powers of his office to explicitly deny rather than affirm a right enshrined under the charter would serve as a signal to all minorities that no longer can they look to the nation’s leader and to the nation’s Constitution for protection, for security, for the guarantee of their freedoms.

We would risk becoming a country in which the defence of rights is weighed, calculated and debated based on electoral or other considerations. That would set us back decades as a nation. It would be wrong for the minorities of this country. It would be wrong for Canada.

The charter is the living document. It is the heartbeat of our Constitution.

It is also a proclamation. It declares that as Canadians we live under a progressive and inclusive set of fundamental beliefs about the value of the individual. It declares that we are all lessened when any one of us is denied a fundamental right.

We cannot exalt the charter as a fundamental aspect of our national character and then use the notwithstanding clause to reject the protections that it would extend. Our rights must be eternal, not subject to political whim.

For those who value the charter yet oppose the protection of rights for same sex couples, I ask them: if the Prime Minister and a national government are willing to take away the rights of one group, what is there to say that they will stop at that? If the charter is not there today to protect the rights of one minority, then how can we as a nation of minorities ever hope, ever believe and ever trust that it will be there to protect us tomorrow?

My responsibility as Prime Minister, my duty to Canada and to Canadians, is to defend the charter in its entirety, not to pick and choose the rights that our laws will protect and those that are to be ignored, not to declare those who shall be equal and those who shall not be equal. My duty is to protect the charter as some in this House will not.

Let us never forget that one of the reasons Canada is such a vibrant nation, so diverse, so rich in the many cultures and races of the world, is that immigrants who come here, as was the case with the ancestors of many of us in this chamber, feel free and are free to practice their religion, to follow their faith and to live as they want to live. No homogeneous system of beliefs is imposed on them.

When we as a nation protect minority rights, we are protecting our multicultural nature. We are reinforcing the Canada we cherish. We are saying proudly and unflinchingly that defending rights, not just those that happen to apply to us, not just those that everyone else approves of, but all fundamental rights, is at the very soul of what it means to be a Canadian. This is a vital aspect of the values we hold dear and strive to pass on to others in the world who are embattled, who endure tyranny, whose freedoms are curtailed and whose rights are violated.

Why is the charter so important? We have only to look at our own history. Unfortunately, Canada's story is one in which not everyone's rights were protected under the law. We have not been free from discrimination. We have not been free from bias or unfairness. There have been blatant inequalities. Remember that it was once thought perfectly acceptable to deny women personhood and the right to vote. There was a time not so long ago when if one wore a turban one could not serve in the RCMP. The examples are many, but what is important now is that they are part of our past, not our present.

Over time, perspectives changed. We evolved and we grew and our laws evolved and grew with us. That is as it should be. Our laws must reflect equality, not as we understood it a century or even a decade ago, but as we understand it today.

For gays and lesbians, evolving social attitudes have, over the years, prompted a number of important changes in the law. Recall that, until the late 1960s, the state believed it had the right to peek into our bedrooms. Until 1977, homosexuality was still sufficient grounds for deportation. Until 1992, gay people were prohibited from serving in the military. In many parts of the country, gays and lesbians could not designate their partners as beneficiaries under employee medical and dental benefits, insurance policies or private pensions. Until very recently, people were being fired merely for being gay.

Today, we rightly see discrimination based on sexual orientation as arbitrary, inappropriate and unfair. Looking back, we can hardly believe that such rights were ever a matter for debate. It is my hope that we will ultimately see the current debate in a similar light; realizing that nothing has been lost or sacrificed by the majority in extending full rights to the minority

Without our relentless, inviolable commitment to equality and minority rights, Canada would not be at the forefront in accepting newcomers from all over the world, in making a virtue of our multicultural nature—the complexity of ethnicities and beliefs that make up Canada, that make us proud that we are where our world is going, not where it’s been.

Four years ago I stood in the House and voted to support the traditional definition of marriage. Many of us did. My misgivings about extending the right of civil marriage to same sex couples were a function of my faith and my perspective on the world around us, but much has changed since that day.

We have heard from courts across the country, including the Supreme Court. We have come to the realization that instituting civil unions, adopting a separate but equal approach would violate the equality provisions of the charter. We have confirmed that extending the right of civil marriage to gays and lesbians will not in any way infringe on religious freedoms.

Where does that leave us? I believe it leaves us staring in the face of the Charter of Rights with but a single decision to make. Do we abide by the Charter of Rights and protect minority rights or do we not?

I urge those who would oppose the bill to consider that the core of the issue before us today is whether the rights of all Canadians are to be respected. I believe they must be: justice demands it, fairness demands it and the Canada we love demands it.

In the 1960s, the government of Lester Pearson faced opposition as it moved to entrench official bilingualism. But it persevered, and it won the day. Its members believed it was the right thing to do, and it was. In the 1980s, the government of Pierre Trudeau faced opposition as it attempted to repatriate the Constitution and enshrine a Charter of Rights and Freedoms. But it persevered, and it won the day. Its members believed it was the right thing to do, and it was.

There are times when we as parliamentarians can feel the gaze of history upon us. They felt in the days of Pearson and they felt in the days of Trudeau. We, the 308 men and women elected to represent one of the most inclusive, just and respectful countries on the face of this earth, feel it today.

There are few nations whose citizens cannot look to Canada and see their own reflection. For generations, men, women and families from the four corners of the globe have made the decision to choose Canada as their home. Many have come here seeking freedom of thought, religion and belief, seeking the freedom simply to be.

The people of Canada have worked hard to build a country that opens its doors to include all, regardless of their differences; a country that respects all, regardless of their differences; and a country that demands equality for all, regardless of their differences.

If we do not step forward, then we will step back. If we do not protect a right, then we deny it. Together as a nation, together as Canadians, let us step forward.


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