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92-1E

Sexual Orientation and Legal Rights*

Prepared by:
Mary C. Hurley
Law and Government Division
Revised 31 May 2007

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Issue Definition

Over the past 20 years, the legal rights of lesbians and gay men in Canada have been the subject of considerable judicial, political and legislative activity.  All Canadian jurisdictions prohibit discriminatory treatment based on sexual orientation, and the introduction of the Canadian Charter of Rights and Freedoms significantly altered the legal framework in matters of equality rights for lesbians and gay men.

Generally speaking, legal issues relating to sexual orientation have arisen in two contexts:

Numerous judicial rulings dealing with legal challenges against allegedly discriminatory laws and in assertion of legal rights have clarified the legal position of lesbians and gay men, served as a focus for the ongoing political debate about homosexuality and, in several instances, provided a framework for legislative reforms of varying scope.  Recent years have also featured increasing calls, gradually sanctioned by the courts in a majority of jurisdictions and now, authoritatively, by the adoption of federal legislation, for the extension of the institution of civil marriage to same-sex couples on the basis of constitutional equality rights.

This paper reviews issues and developments affecting the legal rights of lesbians and gay men at the federal level as well as in areas of provincial jurisdiction.  The paper is concerned only with legal matters.  It does not discuss other socio-cultural, moral or policy issues that have been raised in relation to homosexuality

Background and Analysis

   A.  Discrimination on the Basis of Sexual Orientation

Human rights legislation establishes that society considers unequal treatment of certain groups to be unacceptable by setting out a list of characteristics against which discrimination is prohibited, customarily in employment, accommodation and services.  In Canada, these characteristics have traditionally included race, colour, national or ethnic origin, religion or creed, age, sex, family and/or marital status, and mental or physical disability.

Prior to the 1980s, there were few legal rights or provisions that could be invoked by lesbians and gay men.  The legal situation in Canada changed considerably with the coming into effect of the equality rights provision in section 15 of the Canadian Charter of Rights and Freedoms in 1985.  Although it had been decided not to include sexual orientation explicitly as a prohibited ground of discrimination, subsection 15(1) was worded to ensure that the Charter’s guarantee of equality was open-ended:

Every individual is equal before and under the law and has the right to equal protection and 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 courts have accepted that section 15 is to be interpreted broadly, and that “analogous” grounds, i.e., personal characteristics other than those listed, may also form the basis for discrimination against a group or an individual (Andrews v. Law Society of British Columbia).  In 1995, the view that sexual orientation is such an “analogous” ground, and therefore a prohibited ground of discrimination under the Charter, was confirmed by the Supreme Court of Canada in the Egan decision, discussed below under the heading “Same-Sex Spouses.”

Relying on the Charter as the sole vehicle for the validation of equality rights may not provide a remedy in all cases.  Even if discrimination on the ground of sexual orientation is recognized as a prima facie section 15 violation, a court may uphold the law as justifiable under section 1 of the Charter.  Furthermore, the Charter’s constitutional guarantees apply only to governmental action, not private acts; and, in most instances, Charter remedies must be pursued through costly, prolonged and adversarial court proceedings.  In contrast, human rights statutes establish relatively inexpensive and, in theory, at least, expeditious administrative mechanisms to deal with complaints of discrimination in both public and private spheres.  Human rights advocates thus stressed the importance of including sexual orientation as a prohibited ground of discrimination in human rights laws.

The Canadian Human Rights Commission first recommended that sexual orientation be made a prohibited ground of discrimination under the Canadian Human Rights Act in 1979.  In 1985, a parliamentary committee report entitled Equality for All made the same recommendation.  The federal government’s 1986 response expressed the belief that sexual orientation was encompassed by section 15 guarantees, and made a commitment to “take whatever measures are necessary to ensure that sexual orientation is a prohibited ground of discrimination in relation to all areas of federal jurisdiction.”

In August 1992, the Charter’s impact on human rights legislation was affirmed when the Ontario Court of Appeal, in Haig v. Canada, ruled that the absence of sexual orientation from the list of proscribed grounds of discrimination in section 3 of the Canadian Human Rights Act violated section 15 of the Charter.  The Court determined that section 3 of the Act should be read and applied as if sexual orientation were listed, i.e., sexual orientation should be “read in” to the Act.  The federal government decided not to appeal the Haig decision and indicated that it would be applied throughout Canada.  Accordingly, the Canadian Human Rights Commission began accepting complaints of discrimination based on sexual orientation in 1992.

In June 1996, Parliament enacted Bill C-33, An Act to amend the Canadian Human Rights Act, to include sexual orientation among the Act’s prohibited grounds of discrimination.  Bill C-33 had the effect of codifying the law as stated in the Ontario Court of Appeal’s Haig decision and since practised by the Canadian Human Rights Commission and the Canadian Human Rights Tribunal.  This development is more fully reviewed under the heading “Parliamentary Action.”

The amendment to the Canadian Human Rights Act also brought the federal Act into line with existing provincial and territorial laws.  Quebec was the first Canadian jurisdiction to include sexual orientation as a prohibited ground of discrimination when the province’s Charte des droits et libertés de la personne was amended in 1977.  Now human rights Acts and Codes explicitly prohibit discrimination based on sexual orientation in all jurisdictions except Alberta.  The legislation enacted in the Northwest Territories is the first human rights statute in Canada to also prohibit discrimination based on “gender identity.” 

Canadian courts ruled that sexual orientation is also a prohibited ground of discrimination in Alberta.  In a ruling analogous to the earlier Haig decision, the Supreme Court of Canada found, in 1998, that the omission from the province’s human rights statute of the ground of discrimination of greatest significance to lesbian and gay individuals signified that they were denied substantive equality and denied access to the legislation’s remedial scheme.  The Court concluded that the most appropriate remedy for the section 15 violation was to “read in” sexual orientation as a prohibited ground of discrimination in the Alberta legislation (Vriend v. Alberta).

A now substantial body of human rights decisions involve the alleged denial of services or accommodation on the basis of sexual orientation, and related lesbian and gay issues (e.g., Waterman v. National Life Assurance Co. of Canada, 1993:  loss of employment; Crozier v. Asselstine, 1994 and DeGuerre v. Pony’s Holdings Ltd., 1999:  harassment in employment; Grace v. Mercedes Homes Inc., 1995 and Québec (Comm. des droits de la personne et des droits de la jeunesse) c. Michaud, 1998:  housing; Geller v. Reimer, 1994, Hughson v. Kelowna (City), 2000:  Gay Pride proclamation/permit; Moffatt v. Kinark Child and Family Services, 1998:  work environment; L. (C.) v. Badyal, 1998:  pub services; McAleer v. Canada (Human Rights Commission), 1999:  promotion of hatred; Trinity Western University v. British Columbia College of Teachers, 2001:  teacher training program; Brockie v. Brillinger (No. 2), 2002:  printing services; Jubran v. North Vancouver School District (No. 44), School District No. 44 (North Vancouver) v. Jubran, 2005:  harassment in school; Kempling v. The British Columbia College of Teachers, 2005:  publication of anti-homosexual material; Komar, Taylor, Hamre, Wallace v. Whatcott, 2005:  exposure to hatred; Owens v. Saskatchewan (Human Rights Commission), 2006:  exposure to hatred; Commission des droits de la personne et des droits de la jeunesse v. Périard, 2007:  verbal and physical harassment).

Prohibitions of discrimination based on sexual orientation in human rights legislation point out that such inclusion does not entail endorsement of homosexuality, but does accord an element of legal protection from job loss or the denial of accommodation or services.  Although some expressed concern that the term “sexual orientation” itself is broad enough to include pedophilia and other sexual proclivities that are not intended to be covered, prohibiting discrimination on the basis of sexual orientation does not affect Criminal Code prohibitions of certain sexual activities, for instance, those between adults and minors. 

B.  Same-Sex Spouses

The situation of gay and lesbian couples raised distinct issues related to discrimination based on sexual orientation.  In the main, such issues arose because statutes traditionally used the concept of “spouse,” explicitly or implicitly defined in heterosexual terms, as the basis for allocating rights, powers, benefits and responsibilities to partners.  Beginning in the early to mid-1990s, legislative initiatives recognizing cohabitation of same-sex partners as conjugal in nature increased markedly in both number and scope, particularly following the pivotal 1999 Supreme Court of Canada decision in M. v. H.  Previouscourt rulings discussed under the following heading should be considered in light of that judgment, also reviewed below, and of contemporaneous or subsequent legislative reforms in the area of same‑sex spousal benefits, in particular, the enactment of federal Bill C-38, the Civil Marriage Act, in July 2005.

1.  Selected Case Law

Court challenges under human rights legislation and/or the Canadian Charter of Rights and Freedoms turned on the question of whether the term “spouse” applies to same-sex partners, often in the context of interpreting collective agreements or wording in specific statutes or regulations.  A considerable body of jurisprudence evolved in this area.

a.  Early Decisions

One of the earliest cases was Andrews v. Ontario (Ministry of Health), a section 15 Charter case in which a woman sought to have her lesbian partner provided with OHIP dependant’s coverage under the Ontario Health Act.  The court rejected the application on the basis that “spouse,” which was undefined in the legislation, always refers to a person of the opposite sex.  An opposite conclusion was reached in Knodel v. British Columbia (Medical Services Commission), in which the Supreme Court of British Columbia concluded that the opposite-sex definition of “spouse” in regulations under the Medical Service Act was an unjustified infringement of subsection 15(1) of the Charter.

In Veysey v. Canada (Correctional Service), a prison inmate and his homosexual partner were denied participation in the Private Family Visiting Program.  The Trial Division of the Federal Court quashed that denial on the basis that it violated subsection 15(1) of the Charter. 

b.  Employment-related Decisions

Many of the decisions concerning same-sex benefits arose in the employment sphere.  In Canada (Attorney General) v. Mossop, a gay federal public service worker who had been denied bereavement leave to attend the funeral of his partner’s father argued that he had been discriminated against on the basis of “family status” under the Canadian Human Rights Act.  The Supreme Court of Canada’s 1993 majority decision upheld the Federal Court of Appeal’s ruling that Parliament had not intended that sexual orientation should be encompassed by the term “family status,” and did not deal with the question of whether the absence of sexual orientation in the federal human rights statute violated the Charter.  The Court subsequently addressed this matter in the provincial context in the 1998 Vriend decision discussed above.

Other employment-related decisions in the federal sphere typically concerned grievances lodged under the Public Service Staff Relations Act or the Canada Labour Code to contest employers’ denial to same-sex couples of various “spousal” benefits.  Since the Haig ruling, grievance adjudicators and arbitrators, for the most part, allowed grievances alleging discrimination based on sexual orientation under the Canadian Human Rights Act and anti‑discrimination provisions of the applicable public service collective agreements (Hewens v. Treasury Board; Lorenzen v. Treasury Board; Canada Post Corporation v. Public Service Alliance of Canada (Guévremont grievance); Canadian Telephone Employees’ Association (C.T.E.A.) v. Bell Canada; Canadian Broadcasting Corporation v. Canadian Media Guild; Yarrow v. Treasury Board).  On at least one occasion, a tribunal ruling favouring the grievor was set aside by the courts on jurisdictional grounds (Canada (Attorney General) v. Boutilier).

At the provincial level, an important 1992 ruling of an Ontario Board of Inquiry found that the province’s denial of benefits to same-sex partners of government employees violated section 15 of the Charter.  The Board ordered that the heterosexual definition of marital status in the Ontario Human Rights Code be “read down” by omitting the words “of the opposite sex” (Leshner v. Ontario (Ministry of the Attorney General)).

c.  Egan and Subsequent Decisions

The case of Egan v. Canada, a challenge to the spousal allowance provisions then in the federal Old Age Security Act provided the Supreme Court of Canada with its first direct opportunity to consider a sexual orientation Charter case.  The allowance in question was available to opposite-sex couples meeting the statute’s age requirements who had cohabited for a year or more, but was never available to same-sex couples.  A gay couple (Egan and Nesbit), who had lived together for more than 45 years but were denied the spousal allowance, launched a section 15 Charter challenge to the legislation in 1989.

In 1995, the Supreme Court of Canada dismissed their challenge by a final margin of 5-4.  The Court was unanimous in ruling that sexual orientation is an analogous ground that triggers section 15 protection, thus settling that question authoritatively.  A 5-4 majority of the Court also found that the spousal definition at issue discriminated on the basis of sexual orientation, infringing section 15 of the Charter.  However, in the determinative finding, a different 5-4 majority found the discrimination justified under section 1 of the Charter.

This Supreme Court of Canada decision exerted considerable influence on subsequent same-sex spousal benefit cases at federal and provincial levels:

d.  M. v. H.

In May 1999, a landmark 8-1 decision of the Supreme Court of Canada affirmed the Ontario Court of Appeal ruling in the case of M. v. H.  The Ontario decision had allowed a Charter challenge to the opposite-sex definition of “spouse” in section 29 of the province’s Family Law Act (FLA) that prevented same-sex partners from applying for spousal support upon relationship breakdown.  In confirming that the definition infringed section 15, the Court summarized its views, in part, as follows:

[The] definition … draws a distinction between individuals in conjugal, opposite-sex relationships of a specific degree of duration and individuals in conjugal, same-sex relationships of a specific degree of duration. …

The crux of the issue is that this differential treatment discriminates in a substantive sense by violating the human dignity of individuals in same-sex relationships.  … [T]he nature of the interest affected is fundamental, namely the ability to meet basic financial needs following the breakdown of a relationship characterized by intimacy and economic dependence.  The exclusion of same-sex partners from the benefits of the spousal support scheme implies that they are judged to be incapable of forming intimate relationships of economic interdependence, without regard to their actual circumstances …

 

The Court stressed that the appeal before it did not challenge traditional conceptions of marriage, and that the Court did not need to consider whether same-sex couples can marry, or whether they must always be treated in the same way as unmarried opposite-sex couples.  As a remedy, the Court ordered that the definitional section be “severed” (cut) from the legislation and suspended the remedy for six months to enable the Ontario legislature to devise its own approach to ensuring that the spousal support scheme conformed to section 15.  In closing, the Court commented that “declaring s. 29 of the FLA to be of no force or effect may well affect numerous other statutes that rely upon a similar definition of the term ‘spouse.’  The legislature may wish to address the validity of these statutes in light of the unconstitutionality of s. 29 of the FLA.”

Although the Court’s decision was concerned only with Ontario legislation, its effects became apparent in virtually every jurisdiction, as outlined below under the heading “Developments following M. v. H.

2.  Reform Prior to M. v. H.

Advocates of same-sex benefits expressed the view that systematic reform by legislators would obviate the need to undertake costly court contests statute by statute.  Opponents of reform criticized “judicial activism” for supplanting the legislative role in deciding whether or when to recognize same-sex spouses.

a.  Legislation

Prior to M. v. H., some legislative recognition of same-sex spouses had occurred at the provincial level, most notably in British Columbia and Quebec.  From 1992 through 1999, groundbreaking legislation in British Columbia amended the definition of “spouse” in numerous statutes to include persons of the same sex living in “marriage-like” relationships.  These laws related to a variety of topics, including medical services, family maintenance, family relations, public sector pensions, pension benefit standards, adult guardianship, representation, and health care consent.  In addition, the adoption legislation in effect in British Columbia since 1996 enabled same-sex couples to make joint applications for adoption not as a result of a spousal definition, but by virtue of gender-neutral references to joint adoption by “two adults.”

In June 1999, the Quebec Assemblée nationale unanimously adopted the Loi modifiant diverses dispositions législatives concernant les conjoints de fait (Bill 32).  This omnibus statute amended the definition of de facto spouse (conjoint de fait) in 28 laws and 11 regulations to include same-sex couples, thus giving them the same status, rights and obligations as unmarried heterosexual couples under the affected legislation.  Amended laws included those relating to workers’ compensation, occupational health and safety, labour standards, insurance, tax, trust and savings companies, pension benefits, public-sector retirement plans, social assistance and other subjects.  The legislation did not amend the Code civil du Québec, which governed family-related matters such as spousal support and adoption and which restricted spousal status to married couples.

In other jurisdictions, legislative initiatives were fewer and narrower in scope.  In Ontario, for example, the 1992 Substitute Decisions Act defined “partners” in gender-neutral terms, thus entitling same-sex spouses to make decisions for incapacitated partners.  In 1994, the broad reform proposed by the then NDP government in Bill 167 to remove disparities in treatment between same-sex and heterosexual couples in Ontario laws was defeated.

In 1998 and early 1999, the Yukon Legislative Assembly introduced gender-neutral definitions, of “spouse” in territorial laws governing family support and maintenance enforcement, and of “common-law spouse” in estate administration and legislative assembly retirement allowance statutes.

In May 1999, the Alberta government acted on an undertaking to enable some private adoptions by same-sex couples by enacting amendments to the Child Welfare Act then in effect, under which the gender-neutral term “step-parent” was substituted for the term “spouse” in the relevant sections of the Act.  The change was not intended to affect public adoptions.  In November 1999, a judge of the Alberta Court of Queen’s Bench gave the first approval of petitions for adoption under this legislation by same-sex partners (A (Re)).

At the federal level, in April 1999 the government introduced a bill containing important reforms of the major public service pension legislation.  Among other things, Bill C‑78 provided for the extension of survivor benefits under that legislation to same-sex couples.  This development is reviewed below under the heading “Parliamentary Action.”

b.  Law Reform Proposals

Legislative reforms in the area of same-sex spousal recognition recommended by the Ontario Law Reform Commission in 1993, and by the Ontario Human Rights Commission and the Nova Scotia Law Reform Commission in 1997, were not acted upon.

Similarly, recommendations of the 1998 Report on Recognition of Spousal and Family Status of the British Columbia Law Institute calling for enactment of a Domestic Partnership Act and a Family Status Recognition Act were not implemented.  The Report stressed the importance of consistent definitions of spousal status and standardization of domestic relationships in all provincial legislation.

c.  Other Developments

A number of additional developments in the area of same-sex benefits or recognition of spousal status occurred in the pre–M. v. H. period, most commonly in the employment sphere.  A steadily increasing number of private employers, including many major corporations, as well as some federally regulated employers, provided health care benefits to same-sex couples.  In addition to British Columbia, a number of provincial and territorial governments adopted policies extending health-related and other employment benefits to same‑sex couples; these included Nova Scotia, New Brunswick, Ontario, Manitoba, Saskatchewan, Yukon and the Northwest Territories.  Major municipalities providing at least some same-sex benefits to their employees included Halifax, Montréal, Kingston, Ottawa, Kitchener-Waterloo, Hamilton, London, Toronto, Winnipeg, Calgary, Edmonton, Regina, Prince Rupert, Vancouver and Victoria.

With regard to pension benefits, the Nova Scotia government agreed in 1998 to extend survivor benefits provided for in the province’s public service pension statute to the surviving partners of same-sex relationships (Wilson Hodder; Paul Boulais); the New Brunswick government followed suit.

At the federal level, in 1996, Revenue Canada modified its interpretation of the Income Tax Act’s definition of “private health services plan” to enable same-sex couples to obtain employer-paid medical and dental benefits on a tax-free basis.  As a result of the 1998 Rosenberg decision, Revenue Canada also began registering pension plans providing for same‑sex survivor benefits.

In the federal employment sphere, beginning in 1995, federal Treasury Board policy gradually extended employment-related benefits to same-sex couples, with the Board of Internal Economy of the House of Commons generally following suit.  This policy had no substantive effect on either the scope of available benefits, or the opposite-sex definition of “spouse” in federal legislation.

3.  Developments Following M. v. H.

a.  Legislation

Significant legislative packages respecting same-sex couples’ status over the ensuing period include the following:

The Law Reform (2000) Act also amended the provincial Vital Statistics Act to establish the first registered domestic partnership scheme in Canada.  Under this initiative, “two individuals [of the same or opposite sex] who are cohabiting or intend to cohabit in a conjugal relationship” became eligible to register their partnership by means of a declaration, provided neither person was a minor, married or in a prior domestic partnership, and both were ordinarily resident or property owners in Nova Scotia.  Upon registration, each domestic partner immediately assumes the rights and obligations of a [married] spouse under 21 provincial statutes. 

b.  Law Reform Activities

In 2001, following a lengthy consultation process, the Law Commission of Canada released an exhaustive report on the subject of close personal relationships entitled Beyond Conjugality:  Recognizing and Supporting Close Personal Adult Relationships.  The report concluded that, among other things, a modified approach to government regulation was necessary in order to reflect the full range of close adult relationships in Canada.  Although marriage had served as the primary vehicle of public commitment, it was no longer an adequate model in light of the variety of such relationships.  Under a proposed new methodology for addressing the regulation issue, the state would retain a role in defining the legal framework for the voluntary undertaking of mutual rights and obligations, and should widen the range of relationships it supports by creating a registration scheme open to conjugal and non-conjugal couples and legalizing same-sex marriage.

c.  Other Developments

In 2002, the first Alberta Human Rights Panel decision involving sexual orientation found that the denial of family coverage to same-sex couples and their children owing to the opposite-sex definition of “common law spouse” in the relevant regulations violated the provincial human rights legislation (Anderson et al. v. Alberta Health and Wellness).

In 2003, in compliance with an order of the Canadian Human Rights Tribunal on consent of the parties, the Treasury Board instructed all government departments to grant employees in same-sex relationships up to five days’ leave, the equivalent of marriage leave, for purposes of participation in their public same-sex commitment ceremony (Boutilier v. Canada (Natural Resources)).

In 2004, the New Brunswick government acceded to a human rights ruling holding that the legislative prohibition against same-sex step-parent adoption violated the province’s Human Rights Act

In June 2005, the Ontario Court of Appeal upheld findings of the Superior Court of Justice, in a national class‑action challenge, that statutory distinctions restricting same‑sex spouses’ eligibility for and access to arrears of survivor benefits under Bill C‑23 amendments to the Canada Pension Plan represented unjustified violations of section 15.  In March 2007, the Supreme Court of Canada denied the federal government’s appeal of this decision, while also denying the claimants’ cross‑appeal seeking broader retroactive benefits (Canada (Attorney General) v. Hislop). 

4.  Same-Sex Marriage Issues

Under the Constitution Act, 1867, capacity to marry falls under federal jurisdiction, while the solemnization of marriage is a provincial responsibility.  Although no federal legislation explicitly prohibits the practice, marriage between two individuals of the same sex has traditionally not been permitted under Canadian common law.  On that basis, a majority of the Ontario Divisional Court, in March 1993, dismissed a Charter challenge by two men who had been denied a marriage licence by the province (Layland and Beaulne v. Ontario).

In the wake of the 1999 M. v. H. ruling and enactment of federal Bill C-23 in 2000, advocates for extending the marriage option to same-sex couples undertook renewed equality rights constitutional challenges in most jurisdictions.  As the following overview illustrates, in each affected jurisdiction these challenges resulted in the invalidation of the traditional opposite-sex requirement for a legal marriage, its replacement in most instances with a gender-neutral redefinition, and effective legalization of same-sex marriage.  Appellate decisions in Ontario and British Columbia prompted the federal government to refer the same-sex marriage question to the Supreme Court of Canada.

a.  Lower Court Rulings

The Court suspended its invalidation of the common-law rule for 24 months to enable Parliament (and the provinces, where applicable) to remedy the law of marriage, failing which the common-law rule would be reformulated by replacing the words “one man and one woman” with “two persons.”  The federal government appealed this ruling (Halpern v. Canada (Attorney General)).

The Quebec Court extended its declaration of constitutional invalidity to the interpretive provision in federal Bill C-23 and to the Code civil provisions that also characterized marriage as a heterosexual institution, suspending this remedy for 24 months.  This decision, too, was appealed by the federal government (Hendricks c. Québec (Procureur général)).

The Court declared the common-law bar against same-sex marriage of no force and effect, reformulated the common-law definition to mean the “lawful union of two persons,” and suspended both forms of relief until expiration of the suspension in the Ontario decision.  In July 2003, in light of subsequent developments and with the federal Attorney General’s consent, the Court lifted this suspension, making its gender-neutral definition of marriage effective in British Columbia immediately.

The Court modified the Divisional Court’s remedy, making invalidation of the existing common-law definition of marriage and reformulation to refer to the “voluntary union for life of two persons” effective in Ontario immediately.

b.  Supreme Court of Canada Reference and Bill C-38

On 17 June 2003, then Prime Minister Chrétien announced that the federal government would not appeal Ontario and British Columbia appellate decisions and would discontinue its appeal in the Quebec case.

On 17 July, the government referred draft legislation recognizing same-sex marriage for civil purposes and acknowledging religious organizations’ authority to continue to solemnize marriage in accordance with the precepts of their faith to the Supreme Court of Canada in a constitutional reference.  The reference asked that the Court consider whether:  the draft bill fell within Parliament’s exclusive legislative authority; the bill’s extension of the capacity to marry to persons of the same sex was consistent with the Charter; the Charter’s freedom of religion guarantee shields religious officials from being forced to perform same-sex marriages contrary to their religious beliefs.  A fourth question added in January 2004 asked whether the existing opposite-sex requirement for civil marriage was consistent with the Canadian Charter.

In the midst of judicial developments across the country, the reference was heard on 6 and 7 October 2004.  The Court issued its ruling on 9 December, finding that:

The Court declined to answer the fourth question.  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 authorizing such marriages had acquired rights that deserved protection.

On 1 February 2005, Bill C-38, the Civil Marriage Act legalizing same-sex marriage across the country, was introduced in the House of Commons; the legislation was adopted on 19 July.  It is discussed under the heading “Parliamentary Action.”

c.  Same-Sex Marriage and Provincial Jurisdiction

Same-sex marriage advocates in Ontario were critical of the provincial government’s failure to immediately amend the province’s legislation to reflect the appellate court’s ruling in the Halpern case.  In February 2005, this matter was addressed when the Ontario Legislature adopted Bill 171, An Act to amend various statutes in respect of spousal relationships.  The bill removed the term “same-sex partner” and language recognizing exclusively opposite-sex spousal status from Ontario statutes.  With the passage of Bill C-38, it was anticipated that other provinces and territories would undertake a short-term review of existing statutes providing for exclusively heterosexual spousal or marital status and proceed with equivalent measures.  To date, no further broad adjustments to provincial or territorial statutes to reflect the expanded definition of marriage have been noted.

Notwithstanding the Charter guarantee of freedom of conscience and religion, the advent of same-sex civil marriage prompted critics to raise concerns about the need for provincial and territorial governments to ensure explicit legislative protection for religious officials for whom same-sex religious marriage conflicts with their religious beliefs.  In some provinces, public officials appointed to perform civil marriages on a fee basis resigned, citing religious grounds, rather than comply with government directives that they provide their services to same-sex couples.  Some argued that the provinces should also protect and have a duty to accommodate the religious beliefs of these officials.

In this context, provincial human rights complaints were lodged by marriage commissioners in Saskatchewan and Manitoba, raising religious discrimination, and by a Saskatchewan same-sex couple against a marriage commissioner, raising discrimination based on sexual orientation.  In March 2006, the Saskatchewan Human Rights Commission dismissed the complaints of three marriage commissioners, finding that “regardless of a marriage commissioner’s religious beliefs, it is not discriminatory to require them to solemnize same-sex marriages.”  In October 2006, these decisions were upheld by the Saskatchewan Human Rights Tribunal (Orville Nichols v. Department of Justice, Government of Saskatchewan).  A similar dismissal of the Manitoba complaint is to be reviewed by the province’s Court of Queen’s Bench, while a decision in the case of the same‑sex couple remains pending.

To date, few jurisdictions appear to have legislated to address these matters.  Québec’s Code civil has, since 1991, included a section under which “[n]o minister of religion may be compelled to solemnize a marriage to which there is any impediment according to his religion and to the discipline of the religious society to which he belongs.”  In the post-Bill C-38 context,

d.  Other Developments

In November 2005, the British Columbia Human Rights Tribunal ruled that, although a Knights of Columbus chapter had been entitled to refuse its rental facility to a same-sex couple for their wedding reception, the manner in which it did so was discriminatory.  The Tribunal ordered remedial monetary damages (Smith and Chymyshyn v. Knights of Columbus and others). 

In 2005 and 2006 respectively, British Columbia and New Brunswick superior courts allowed divorce petitions based on “same-sex adultery” (P.(S.E.) v. P.(D.D.)Thébeau v. Thébeau). 

In January 2007, the then minister of Citizenship and Immigration announced that same-sex marriages, lawfully performed in Canada or in a country where they are also legal, would be recognized for all immigration purposes.  As a result, a Canadian who marries his or her same-sex partner in one of those jurisdictions may now sponsor the partner for permanent residency as a spouse.

In March 2007, a Federal Court judge found that the Canadian Human Rights Commission had not erred when it dismissed the complaints of a unionized federal government employee alleging discriminatory treatment on religious grounds.  The case involved the Treasury Board’s denial of the employee’s request to divert her union dues to a charitable institution based on her opposition to the union’s support of same-sex rights and marriage (Comstock v. Public Service Alliance of Canada). 

5.  Conclusion

Judicial and legislative reforms over the past decade, particularly since the M. v. H. decision in 1999, have effected a significant shift in Canadian society with respect to recognition of the legal status and claims of same-sex conjugal couples.  The watershed nature of this shift is illustrated, most notably, by federal legislation sanctioning same-sex marriage.

Opponents of these reforms continue to argue that the extension of same-sex rights in general, and same-sex marriage in particular, undermine the traditional family and family values.  At the same time, some gay and lesbian couples (like some heterosexual couples) do not want either the legal obligations or the benefits that flow from spousal status or marriage.  As the 2002 report of the former Law Commission of Canada and other indicators suggest, the question of whether the matter of entitlements based on the marital or conjugal nature of a partnership should be re-examined remains open. 

C.  Other Legal Issues

A variety of other legal issues have affected lesbians and gay men; some flow from those discussed above.  They include military practices, criminal law issues, violence, customs, immigration, issues related to HIV/AIDS and medical treatment, and discriminatory application of laws.  A number of these issues have come before the courts.

In 1992, following an out-of-court settlement between the federal government and a former lieutenant who had resigned after admitting to a lesbian relationship, the Canadian Armed Forces announced that enlistment and promotion in the military would no longer be restricted on the basis of sexual orientation.  The Federal Court judgment agreed to by the parties described the military’s previous policy governing the service of homosexuals as contrary to the Canadian Charter of Rights and Freedoms (Douglas v. The Queen).

Section 159 of the Criminal Code makes anal intercourse a criminal offence, except when it takes place between husband and wife or between consenting adults over the age of 18.  The age of consent to other forms of sexual activity is 14.  Since 1995, a number of Canadian courts have found this provision discriminatory under the Charter, either on the basis of sexual orientation and age (Halm v. Canada), on the basis of age alone (R. v. M.(C.)), or on the basis of sexual orientation, age and marital status (R. c. Roy).  To date, section 159 has not been amended.

Despite broad policy and statutory reforms, the policies of some public bodies have, in some cases, continued to be specifically directed toward lesbians and gay men.  In 1996, a local school board in British Columbia banned certain teaching materials that featured same-sex parents.  In 2002, the Supreme Court of Canada overturned a British Columbia Court of Appeal ruling that the resolution had been within the Board’s jurisdiction.  It found the Board had been unreasonable in light of the statutory educational scheme and remanded the issue of whether the books should be approved using appropriate criteria to the Board (Chamberlain v. Surrey School Board No. 36).  In 2003, the Board again rejected the books for various reasons and announced it would seek out other resources that depict same-sex family models.

In 2006, a gay couple in British Columbia with a history of advocacy in education dropped a human rights complaint alleging systemic discrimination by the Ministry of Education owing to its failure to include information about homosexuality in school curricula.  Under a negotiated settlement, the province undertook, in part, to introduce an elective course on social justice that would include sexual orientation issues and, controversially, to consult the couple about the relevant portion of the course and the presentation of lesbians and gay men in the school curriculum more generally.  The agreement also limited parental rights to remove their children from courses with gay and lesbian content.

In March 2002, an Ontario Catholic School Board endorsed a member high school’s denial of a gay student’s request to attend his graduation dance with his boyfriend, on the basis that allowing behaviour representative of a homosexual lifestyle would be inconsistent with church teachings and Catholic school values.  In May, a judge of the Superior Court of Justice granted an interlocutory injunction, pending trial, to enable the plaintiff’s attendance at the event with his male partner.  The case was discontinued in June 2005 without having gone to trial (Hall (Litigation Guardian of) v. Powers).

Violence directed at lesbians and gay men has remained an issue of concern.  In 1993, Quebec Human Rights Commission hearings on the matter acquired prominence as a result of the high incidence of murder of homosexual men in Montréal.  “Gay-bashing” has also been identified as a priority issue in other Canadian cities, including Vancouver and Toronto.  Vancouver police described the November 2001 murder of a gay man as a hate crime and have expressed concern that gay men and lesbians are the groups most likely to be assaulted in the city.  A 2004 Statistics Canada report also found that persons targeted on the basis of their sexual orientation were more likely than other groups to be victims of violent crimes.  In 1995, hate‑motivated crime directed against homosexual people was recognized by Parliament as an important issue in sentencing.  In April 2004, Parliament also expanded grounds protected by Criminal Code hate propaganda provisions to include sexual orientation.  Both matters are discussed under the heading “Parliamentary Action.”

Books and periodicals imported by gay and lesbian bookstores in Canada and subjected to intense scrutiny by Customs officials have often been seized as obscene within the Criminal Code definition.  In 1994, provisions of the Customs Act and of the Customs Tariff and its Schedule VII came under challenge.  In December 2000, the Supreme Court of Canada upheld lower court findings that the Act and Tariff were constitutional.  However, Customs officials’ adverse treatment in applying the legislation, targeting appellants at the administrative level, was prejudicial and demeaning to their dignity.  The resulting section 15 violation was not capable of section 1 justification as it was not “prescribed by law” (Little Sisters Book and Art Emporium v. Canada (Minister of Justice)).

In 1993, the Supreme Court of Canada ruled that membership in a “particular social group” as a basis of persecution under the Convention refugee definition includes groups defined by an “innate, unchangeable characteristic,” such as sexual orientation (Canada (Attorney General) v. Ward).  Numerous cases over the ensuing period have considered whether the circumstances of individual homosexuals warrant the granting of refugee status (Muzychka v. Canada (Minister of Citizenship and Immigration); Trembliuk v. Canada (Minister of Citizenship and Immigration); Aire v. Canada (Minister of Citizenship and Immigration); Hackman v. Canada (Minister of Citizenship and Immigration)).

As mentioned under the “Same-Sex Marriage Issues” heading above, the 2005 enactment of Bill C‑38 authorizing same‑sex marriage had implications for the country’s immigration scheme.  Previously, federal immigration regulations restricted spousal family class membership for immigration purposes to married couples, although this restriction did not act as a total bar to permanent residence applications by same-sex or unmarried opposite-sex partners under administrative guidelines.  In January 1999, the government’s proposed program for modernizing immigration policy and law acknowledged that “[t]he recognition of common-law and same-sex relationships through regulatory changes would eliminate the recourse to discretionary administrative guidelines.”  Bill C-11, which received Royal Assent in November 2001, initiated this process of change, and is reviewed below under the heading “Parliamentary Action.”

In January 2007, the Ontario Court of Appeal issued a precedent‑setting ruling in a family law case raising the issue of whether, under the province’s decades-old Children’s Law Reform Act (CLRA), a child conceived by artificial insemination, raised by his biological mother and her lesbian partner, and with close ties to his biological father, could legally have two mothers in addition to a father.  Adoption was not an option under the province’s Child and Family Services Act, as it would strip the father of his parental status.  The Court noted that, at the time the CLRA was adopted, “[t]he possibility of legally and socially recognized same-sex unions and the implications of advances in reproductive technology were not on the radar scheme.  The Act does not deal with, nor contemplate, the disadvantages that a child born into a relationship of two mothers, two fathers or as in this case two mothers and one father might suffer.”  In the Court’s view, “[p]resent social conditions and attitudes have changed.  Advances in our appreciation of the value of other types of relationships and in the science of reproductive technology have created gaps in the CLRA’s legislative scheme.”  Accordingly, it would be contrary to the child’s best interests that he be deprived, not only of his father’s parentage, but also “of the legal recognition of the parentage of one of his mothers.”  Exercising its parens patriae jurisdiction, the Court declared the partner to be the boy’s mother, thus entitling her to the rights and obligations of a custodial parent (A.A. v. B.B.). 

Parliamentary Action

A.  Government Initiatives

Parliament decriminalized homosexual activity between consenting adults in 1969, while the Immigration Act, 1976 removed homosexuals from classes of persons prohibited from entering Canada.  Until 1992, little further legislative activity at the federal level addressed legal issues related to homosexuality.

In 1992, then Minister of Justice Kim Campbell introduced Bill C‑108, which would have added sexual orientation to the Canadian Human Rights Act as a prohibited ground of discrimination, while defining marital status in exclusively heterosexual terms.  The bill died on the Order Paper in September 1993.

In 1995, Parliament enacted An Act to amend the Criminal Code (sentencing) (Bill C-41).  Under the bill, evidence that a crime was motivated by bias, prejudice or hate based on a number of listed personal characteristics constituted an aggravating circumstance for which a sentence should be increased.  The inclusion of sexual orientation among those personal characteristics sparked considerable opposition.  Bill C-41 came into force in September 1996.

In 1996, An Act to amend the Canadian Human Rights Act (Bill C-33), added “sexual orientation” to the prohibited grounds of discrimination in the Canadian Human Rights Act.  The initiative intensified long-standing controversy within the public as well as among Members of Parliament over its implications.

In 1999, (Bill C-78) was adopted.  The legislation’s major amendments to statutes governing the pension regimes of civilian and uniformed government employees and Members of Parliament included replacing provisions entitling unmarried opposite-sex spouses to “surviving spouse” benefits with provisions recognizing gender-neutral “survivor” entitlement.  Bill C-78 was the first federal legislation to provide unambiguously for same-sex benefits.  Members of Parliament from the official opposition, as well as several other opposition and government Members, opposed this measure.

In 1999, shortly after the Supreme Court of Canada’s decision in M. v. H., by a vote of 216-55, the House of Commons adopted an opposition motion that, in the opinion of the House, “it is necessary, in light of public debate around recent court decisions, to state that marriage is and should remain the union of one man and one woman to the exclusion of all others, and that Parliament will take all necessary steps to preserve this definition of marriage in Canada.”

In 2000, the Modernization of Benefits and Obligations Act (Bill C-23) amended 68 statutes to effect equal application of federal laws to unmarried heterosexual and same-sex couples, and to extend some benefits and obligations previously limited to married couples to both opposite-sex and same-sex common-law couples.  It added the gender-neutral designation(s) “common-law partner” and/or “survivor” to statutes that previously awarded benefits exclusively to opposite-sex “spouses,” and restricted the designation “spouse” to married persons.  Advocates for gay and lesbian equality rights welcomed the legislation as a major milestone, but it also prompted considerable opposition.  In response to criticisms that Bill C-23 would have a negative impact on marriage, an interpretive amendment provided that, “[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.”  Many argued that this proposal was antithetical to the bill’s equality objectives and had the effect of continuing to treat same-sex relationships as inherently inferior.

In 2001, Parliament enacted the Immigration and Refugee Protection Act (Bill C‑11), which included a measure to recognize a “common-law partner,” to be defined in the regulations, among members of the family class eligible for sponsorship.  Accordingly, the new Immigration and Refugee Protection Regulations set out the gender-neutral definition first enacted in Bill C-23, with its one-year cohabitation requirement.  In recognition of practical difficulties associated with that criterion in the context of immigration, a second gender-neutral category for “conjugal partner[s]” was also created for purposes of family class regulations.  Under the regulations, “conjugal partner” “means, in relation to a sponsor, a foreign national residing outside Canada who is in a conjugal relationship with the sponsor and has been in that relationship for a period of at least one year.”  These categories remain in place alongside the now gender-neutral “spouse” category.

From November 2002 through June 2003,  the House of Commons Standing Committee on Justice and Human Rights studied 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.  The Committee was in the process of preparing its report to the House when the Ontario Court of Appeal released its ruling giving immediate effect to same-sex marriage in Ontario.  The Committee subsequently adopted a motion of support for the decision.

In 2003, an Opposition motion identical to that of June 1999 affirming the heterosexual definition of marriage and the need for Parliament to preserve it was defeated by a 137-132 margin.

In 2004, Bill C-250, a private Member’s bill introduced by MP Svend Robinson, amended Criminal Code hate propaganda provisions by expanding the definition of “identifiable group” to include any section of the public distinguished by sexual orientation.  Like Bill C-41 in 1995, Bill C-250 proved controversial.  In response to concerns of some religious organizations, the legislation was amended to add the expression in good faith of opinion based on belief in a religious text as a defence against a charge of wilful promotion of hatred.

In 2005, Bill C-38, An Act respecting certain aspects of legal capacity for marriage for civil purposes, or the Civil Marriage Act, codified a definition of marriage for the first time in Canada.  The law expands on the traditional common-law understanding of marriage as an exclusively heterosexual institution to include “the lawful union of two persons to the exclusion of all others.”  It also recognizes that religious officials may refuse to perform marriages that conflict with their religious beliefs.

Throughout the legislative process in both the House of Commons and the Senate from February through July 2005, MPs, Senators and witnesses representing a broad range of opponents and supporters of Bill C-38 expressed deeply divided views on the merits and implications of the legislation.  To some degree, these opinions reflected those raised in earlier debates on legislation extending the scope of benefits to same-sex conjugal couples.  Perceived threats to the freedom of religion and expression of those opposed to same‑sex marriage were of particular concern for Bill C-38 critics.  Some were of the view that, notwithstanding provincial jurisdiction over solemnization of marriage, the bill could and should, at a minimum, enhance their protection in areas of federal jurisdiction.  Accordingly, Parliament adopted:

By way of “necessary implication” consequential amendments, the Civil Marriage Act replaced the opposite-sex definition of “spouse” in the Divorce Act with a gender‑neutral reference to “two persons” who are married, as well as opposite-sex language in section 5 of the Federal Law and Civil Law of the Province of Quebec Act concerning consent to marry.  It also repealed the interpretive provision in the Modernization of Benefits and Obligations Act referring to the former opposite-sex common-law definition of marriage.

Bill C-38 was adopted by the House of Commons and the Senate on 28 June and 19 July 2005 respectively and came into effect with Royal Assent on 20 July as Chapter 33 of the Statutes of Canada for 2005.  With its enactment, Canada became the fourth country to legislate same-sex marriage, the others being the Netherlands (2001), Belgium (2003) and Spain (2005).

On 7 December 2006, by a vote of 175 to 123, the House of Commons defeated a government motion that would have called on the government “to introduce legislation to restore the traditional definition of marriage without affecting civil unions and while respecting existing same-sex marriages.”

B.  Private Members’ Bills

1.  1980-1996

Between 1980 and 1992, none of the numerous private Members’ bills introduced in the House of Commons to prohibit discrimination based on sexual orientation proceeded beyond first reading.  Bill S-15, adopted by the Senate in 1993, would have added “sexual orientation” to the prohibited grounds of discrimination in the Canadian Human Rights Act.  This initiative, reintroduced as Bill S-2 and adopted by the Senate in April 1996, and Bill C-265, its identical counterpart in the House of Commons, were superseded by government Bill C-33, which became law in June 1996.

In September 1995, MP Réal Ménard’s private member’s motion that the House should move to recognize same-sex spouses was defeated by a large margin.  His May 1996 Bill C-282, An Act providing for equal treatment for persons cohabiting in a relationship similar to a conjugal relationship, would have required interpreting the term “spouse” in federal legislation so as to provide same-sex couples with the rights available to unmarried heterosexual couples.  The bill did not proceed beyond first reading.

2.  36th–38th Parliaments

Many of the numerous private members’ bills tabled over the period October 1997 through May 2005 were introduced on more than one occasion.  Unless otherwise indicated, none received second reading.  All died on the Order Paper.

Chronology

1977 - Quebec became the first jurisdiction to prohibit discrimination on the basis of sexual orientation.

1979 -  The Canadian Human Rights Commission recommended that the Canadian Human Rights Act be amended to include sexual orientation.  This recommendation was made in successive annual reports up to and including 1995.

1982 -  The Canadian Charter of Rights and Freedoms became part of the Constitution of Canada.

1985 - Section 15 of the Charter (the equality rights provision) came into force.

-   Equality for All, the report of the House of Commons Sub-committee on Equality Rights, called for prohibition of discrimination on the basis of sexual orientation in the Canadian Human Rights Act.

1992 -  The Ontario Court of Appeal decided that a prohibition against discrimination on the basis of sexual orientation should be “read in” to the Canadian Human Rights Act (Haig v. Canada).

1994 - Bill 167, the NDP government bill aimed at enlarging the definition of spousal relationships in Ontario statutes to include same-sex couples, was defeated.

1995 -   The Supreme Court of Canada issued its first section 15 Charter decision dealing with sexual orientation and same-sex benefits issues.  In Egan v. Canada, all nine members of the Court found sexual orientation to be an analogous ground for section 15 purposes, and a majority ruled that the opposite-sex definition of spouse in the Old Age Security Act violated section 15.  However, a majority also found the violation justified under section 1 of the Charter.

1996 - Bill C-41 came into force.  The legislation amended the Criminal Code to ensure stricter penalties for crimes motivated by bias, prejudice or hate based on a number of personal characteristics, including sexual orientation.

-   Bill C-33, An Act to amend the Canadian Human Rights Act, which added “sexual orientation” to the Canadian Human Rights Act’s prohibited grounds of discrimination, was enacted.

1998 - The British Columbia Family Relations Amendment Act became law.  The legislation was the first in Canada to extend the benefits and obligations relating to child support, custody and access to same-sex couples.  British Columbia also became the first Canadian jurisdiction to legislate pension benefits for the same-sex partners of the province’s public-sector employees.

-   The Supreme Court of Canada’s unanimous decision in Vriend v. Alberta found that the deliberate omission of sexual orientation from Alberta’s Individual Rights Protection Act violated section15 of the Charter and was not justified under section 1.  As a remedy, the Court ordered that sexual orientation be “read in” to the legislation.

1999 - The Supreme Court of Canada, in M. v. H., ruled 8-1 that the opposite-sex definition of “spouse” in Part III of Ontario’s Family Law Act relating to spousal supportinfringed section 15 of the Charter and was not justified under section 1.  The Court ordered that the provision be severed from the Act, but suspended the remedy for six months to enable Ontario legislators to correct the Charter violation.

-  Parliament adopted Bill C-78, the first federal legislation to provide for same‑sex benefits.  This major pension reform legislation replaced existing provisions entitling unmarried opposite-sex spouses to “surviving spouse” benefits with provisions recognizing gender-neutral “survivor” entitlement. 

-  Quebec’s Assemblée nationale unanimously adopted the Loi modifiant diverses dispositions législatives concernant les conjoints de fait, giving same-sex couples the same status, rights and obligations as unmarried heterosexual couples in numerous laws and regulations.

-  The Ontario Legislative Assembly adopted the Act to amend certain statutes because of the Supreme Court of Canada Decision in M. v. H.  The legislation entitled same-sex couples to the same statutory rights and responsibilities as applied to opposite-sex common-law spouses, introducing the term “same-sex partner” in dozens of affected statutes and preserving the existing opposite-sex definition of “spouse.”

2000 - Parliament adopted the Modernization of Benefits and Obligations Act.  The bill amended 68 federal statutes to effect their equal application to unmarried heterosexual and same-sex couples, by adding the gender-neutral designation(s) “common-law partner” and/or “survivor” to those statutes, and restricting the term “spouse” to married couples.  An interpretive government amendment provided that the bill does not affect marriage, “that is, the lawful union of one man and one woman to the exclusion of all others.”

- The Nova Scotia Legislative Assembly enacted the Law Reform (2000) Act.  The legislation added a gender-neutral definition of “common-law partner” to a number of statutes, and established the first registered domestic partnership scheme in Canada for opposite-sex or same-sex cohabiting conjugal couples that satisfy prescribed criteria. 

2001 -  The Saskatchewan Legislative Assembly adopted legislation amending provincial laws covering a range of subjects either to expand the definition of “spouse” to include same-sex partners in programs thus far restricted to married and unmarried opposite-sex couples, or to extend to same-sex and unmarried opposite-sex partners benefits and obligations that had been available only to married couples.

-  The British Columbia Supreme Court dismissed a challenge to the province’s refusal to issue marriage licences to same-sex couples.  The judge ruled that, although the legal restriction of marriage to heterosexual partners might infringe section 15 of the Charter, any violation was justified under section 1.

-  The Newfoundland House of Assembly adopted the Same Sex Amendment Act, which enabled opposite-sex and same-sex “cohabiting partners” to acquire rights and obligations in a number of areas.

2002 - Quebec’s Assemblée nationale unanimously adopted the Loi instituant l’union civile et établissant de nouvelles règles de filiation.  The bill amended the Code civil to entrench the conjugal status of same-sex and unmarried opposite-sex couples and create a new optional institution for them, in which unrelated adult partners may enter into a formal “civil union” contract [“union civile”] that entails the rights and obligations of marriage. 

-  New Immigration and Refugee Protection Regulations authorizedfamily class sponsorship for same-sex couples, defining two new eligible categories in gender-neutral terms.

-   The Ontario Superior Court of Justice (Divisional Court) issued an unprecedented decision that the common-law rule defining marriage as the union of one man and one woman represented an unjustifiable infringement of section 15 of the Charter.  The Court found that a “separate but equal” regime offering equivalency of benefits is not an equitable solution for same-sex couples deprived of equal access to the rights and benefits associated with marriage.

-  The Manitoba Legislature adopted the Charter Compliance Act, which amended over 50 laws covering a broad range of subject-matters to expand the statutory rights and responsibilities of same-sex couples.  It also enacted the Common-Law Partners’ Property and Related Amendments Act, which provides for “registration of common-law relationships” under the province’s Vital Statistics Act

-   The Cour supérieure of Quebec ruled that the characterization of marriage as a heterosexual institution in section 5 of the federal Federal Law-Civil Law Harmonization Act, No. 1, which applies only in Quebec, represented an unjustified violation of Charter equality rights, concluding that the province’s new civil union regime was not equivalent to the institution of marriage.

2003 -  The British Columbia Court of Appeal unanimously reversed the lower court judgment upholding the common-law rule barring same-sex marriage.  It found that the rule effected substantive discrimination under section 15 of the Charter that is unjustified, in part, because procreation as an objective no longer justified restricting marriage to opposite-sex couples.  Like the Ontario and Quebec rulings, the decision of invalidity was suspended to enable a legislative response.

-   The Ontario Court of Appeal unanimously upheld the Divisional Court’s 2002 decision finding the common-law definition of marriage an unjustified violation of section 15 of the Charter.  The Court found the violation unwarranted, in part, because the opposite-sex requirement for marriage did not represent minimal impairment of the rights of same-sex couples.  In its view, allowing same-sex marriage did not result in a corresponding deprivation to opposite-sex couples.  The Court invalidated the common-law definition of marriage and reformulated it to refer to the “voluntary union for life of two persons” with immediate effect in Ontario.

-  On 17 June, then Prime Minister Chrétien announced the federal government would not appeal the British Columbia and Ontario Courts of Appeal decisions, but would take a phased approach to legalizing same-sex marriage across the country.  On 17 July, the government referred draft legislation recognizing same-sex marriage for civil purposes and acknowledging religious organizations’ authority to abide by the precepts of their faith in relation to marriage, to the Supreme Court of Canada for its consideration. 

-  The British Columbia Court of Appeal lifted the suspension of remedies it had initially imposed, immediately reformulating the common-law definition of marriage in British Columbia as “the lawful union of two persons to the exclusion of all others.”

2004 -  In March, the Quebec Court of Appeal ruled unanimously that a religious organization that had argued against same-sex marriage before the Cour supérieure lacked standing to appeal that Court’s 2002 Charter decision.  The Court lifted the suspension of remedy imposed by the lower court, thus enabling same-sex couples to marry legally in the province with immediate effect.

-   In April, Bill C-250 amended Criminal Code hate propaganda provisions, expanding the definition of “identifiable group” to include any section of the public distinguished by sexual orientation.

-   From July to December, courts in Yukon, Manitoba, Nova Scotia, Saskatchewan, and Newfoundland and Labrador legalized same-sex marriage in their respective jurisdictions on constitutional equality rights grounds.

-   In December, the Supreme Court of Canada issued its ruling on the same-sex reference, finding the draft provision authorizing same-sex marriage to be within Parliament’s exclusive legislative authority and consistent with the Charter.  The Court also found that the religious freedom guarantee in subsection 2(a) of the Charter is sufficiently broad to protect religious officials from state compulsion to perform same-sex marriages against their religious beliefs.  It declined to answer the fourth question concerning whether the opposite-sex requirement for marriage is consistent with the Charter.

2005 - In February, Bill C-38, the Civil Marriage Act, received first reading in the House of Commons.  The controversial legislation codified a gender-neutral definition of marriage for the first time in Canada, expanding on the former common-law understanding of civil marriage as a heterosexual institution.  It also recognizes that religious officials may refuse to perform marriages that conflict with their religious beliefs, while providing that no benefit will be denied or sanction imposed under federal law solely owing to the exercise of freedom of conscience and religion guaranteed by the Charter in respect of same-sex marriage.  Bill C-38 was passed by the House of Commons on 28 June, by the Senate on 19 July, and took effect on 20 July.

-   In February, the Ontario Legislature adopted An Act to amend various statutes in respect of spousal relationships, which removed the term “same-sex partner” and language recognizing exclusively opposite-sex spousal status from Ontario statutes.  Its amendments to the Ontario Human Rights Code and Marriage Act provide that registered religious officials for whom same-sex marriage is contrary to their religious beliefs are not required to solemnize such marriages.

-   In June, a New Brunswick Court of Queen’s Bench Charter ruling redefined civil marriage in the province in gender-neutral terms, making New Brunswick the eighth province and ninth jurisdiction to have legalized same‑sex marriage prior to enactment of Bill C-38. 

-   In December, amendments to Prince Edward Island’s Marriage Act included a provision authorizing religious or civil officials to “refuse to solemnize a marriage that is not in accordance with that person’s religious beliefs.” 

2006 In December, the House of Commons defeated a government motion that would have called on the government “to introduce legislation to restore the traditional definition of marriage without affecting civil unions and while respecting existing same-sex marriages.”

Selected Cases

A. (Re), [1999] A.J. No. 1349 (Q.L.), 26 November 1999 (Alta Q.B.)
A.A. v. B.B., 2007 ONCA 2, 2 January 2007 
A. v. Colloredo-Mansfeld (No. 3) (1994), 23 C.H.R.R. D/328 (Ont. Bd. Inquiry)
Aire v. Canada (Minister of Citizenship and Immigration), [2004] F.C. 41 (T.D.)
Anderson et al. v. Alberta Health and Wellness, 4 December 2002 (Alberta Human Rights Com.)
Andrews v. Law Society of B.C., [1989] 1 S.C.R. 143
Andrews v. Ontario (Ministry of Health) (1988), 88 C.L.L.C. 17,023, 64 O.R. (2d) 258, 9 C.H.R.R. D/5089, 49 D.L.R. (4th) 585 (H.C.) 
Bleau et Québec (Commission des droits de la personne et des droits de la jeunesse) c. Québec (Procureur général), No. 500-09-007479-983, 1 March 2002 (C.A.Q.), reversing JE 99-85
Boutilier v. Canada (Natural Resources), [2003] C.H.R.D. No. 14 (Q.L.) 2003 CHRT 20
Boutilier v. Nova Scotia (Attorney General), [2004] N.S.J. No. 357 (Q.L.), 24 September 2004 (N.S. Sup. Ct.)
Brockie v. Brillinger (No. 2) (2002), 43 C.H.R.R. D/90 (Ont. Sup. Ct. Justice)
Brown v. British Columbia (Minister of Health) (1990), 19 A.C.W.S. (3d) 216, 48 C.R.R. 137 (B.C.S.C.)
Canada (Attorney General) v. Boutilier, [2000] 3 F.C. 27 (F.C.A), affirming [1999] 1 F.C. 459 (T.D.) 
Canada (Attorney General) v. Hislop, 2007 SCC 10, 1 March 2007, affirming [2003] O.J. 5212 (Q.L.) (Ont. C.A.), sub nom Hislop et al. v. Attorney General of Canada 
Canada (Attorney General) v. Moore, [1998] 4 F.C. 585 (T.D.), dismissing applications for judicial review of (1996), 25 C.H.R.R. D/351 (C.H.R.T.), sub nom Moore v. Canada (Treasury Board), and (1997), 29 C.H.R.R. D/185 (C.H.R.T.), sub nom Canada (Attorney General) v. Moore (No. 2)
Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, affirming [1991] 1 F.C. 18, 71 D.L.R. (4th) 661, 12 C.H.R.R. D/355, 114 N.R. 241 (F.C.A.)
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 289
Canada Post Corporation v. Public Service Alliance of Canada (Guévremont grievance), File No. 20101-CR-93-004, 8 March 1994 (grievance arbitration)
Canadian Broadcasting Corporation v. Canadian Media Guild (1995), 45 L.A.C. (4th) 353 (grievance arbitration), application for judicial review dismissed [1999] 2 W.W.R. 43 (Alta Q.B.)
Canadian Telephone Employees’ Association (C.T.E.A.) v. Bell Canada (1994), 43 L.A.C. (4th) 172 (grievance arbitration)
Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710, 2002 SCC 86, reversing (2000), 191 D.L.R. (4th) 128 (B.C.C.A.)
Clinton v. Ontario Blue Cross (1994), 21 C.H.R.R. D/342 (Ont. Ct. (Div. Ct.)), reversing (1993), 18 C.H.R.R. D/377 (Ont. Bd. Inquiry) 
Comstock v. Public Service Alliance of Canada, 2007 FC 335, 30 March 2007 
Crozier v. Asselstine (1994), 22 C.H.R.R. D/244 (Ont. Bd. Inquiry)
DeGuerre v. Pony’s Holdings Ltd. (1999), 36 C.H.R.R. D/439 (B.C. Trib.)
Douglas v. The Queen, [1993] 1 F.C. 264 (T.D.)
Dunbar and Edge v. Yukon (Government of) and Canada (A.-G.), 2004 YKSC 54, 14 July 2004 (Yukon Sup. Ct.)
EGALE Canada Inc. v. Canada (Attorney General) (2003), 38 R.F.L. (5th) 32 (B.C.C.A.), reversing (2001), 88 C.R.R. (2d) 322 (B.C.S.C.); supplementary reasons (2003), 42 R.F.L. (5th) 341 (B.C.C.A.) 
Egan v. Canada, [1995] 2 S.C.R. 513, affirming (1993), 103 D.L.R. (4th) 336, 153 N.R. 161 (F.C.A.), affirming [1992] 1 F.C. 687, 87 D.L.R. (4th) 320 (T.D.)
Geller v. Reimer (1994), 21 C.H.R.R. D/156 (Sask. Bd. Inquiry)
Grace v. Mercedes Homes Inc. (1995), 23 C.H.R.R. D/350 (Ont. Bd. Inquiry) 
Hackman v. Canada (Minister of Citizenship and Immigration), 2006 FC 968, 11 August 2006 
Haig v. Canada(1992), 94 D.L.R. (4th) 1, 9 O.R. (3d) 495 (Ont. C.A.)
Hall (Litigation guardian of) v. Powers, [2002] O.J. No. 1803 (Q.L.), 10 May 2002, leave to discontinue granted, [2005] O.J. No. 2739 (Q.L.), 28 June 2005 (Ont. Sup. Ct. Justice)
Halm v. Canada (M.E.I.), [1995] 2 F.C. 331 (T.D.), Appeal No. A-171-95, discontinued
Halpern v. Canada (Attorney General) (2003), 36 R.F.L. (5th) 127 (Ont. C.A.), affirming [2002] O.J. No. 2714 (Q.L.), (Ont. Sup. Ct. Justice (Div. Ct.))
Harrison v. Canada (Attorney General), [2005] N.B.J. No. 257 (Q.L.) (N.B.Q.B.)
Hendricks c. Québec (Procureur général),[2002] R.J.Q. 2506 (C.S.Q.)
Hewens v. Treasury Board, File No. 166-2-22733, 25 November 1992 (Public Service Staff Relations Board)
Hughson v. Kelowna (City) (2000), 37 C.H.R.R. D/122, 2000 B.C.H.R.T. 24 (B.C. Trib.)
Johnson v. Sand (2001), 83 C.R.R. (2d) 60 (A.C.Q.B.)
K. (Re) (1995), 23 O.R. (3d) 679 (Ont. Ct. (Prov. Div.))
Kane v. Ontario (Attorney General) (1997), 152 D.L.R. (4th) 738 (Ont. Ct. (Gen. Div.)), Appeal No. C28417, appeal abandoned 
Kempling v. The British Columbia College of Teachers, 2005 BCCA 327 (B.C.C.A.), leave to appeal denied 19 January 2006, SCC Appeal File No. 31088 
Knodel v. British Columbia (Medical Services Commission) (1991), 58 B.C.L.R. (2d) 356 (B.C.S.C.)
Komar, Taylor, Hamre, Wallace v. Whatcott, 2 May 2005 (Sask. H.R.T.)
L.(C.) v. Badyal (1998), 34 C.H.R.R. D/41 (B.C. Trib.)
Lahl Sarson, CUB 33909, 4 May 1996 (Umpire)
Layland and Beaulne v. Ontario (1993), 104 D.L.R. (4th) 214, 17 C.R.R. (2d) 168 (Ont. Div. Ct.), Appeal No. C15711, sub nom Schoucervou C. et al. (formerly Layland) v. Ontario (M.C.C.R.), dismissed as abandoned
Leshner v. Ontario (Ministry of the Attorney General) (1993), 16 C.H.R.R. D/184, (Ont. Bd. Inquiry)
Ligue catholique pour les droits de l’homme c. Hendricks, [2004] J.Q. No. 2593 (Q.L.) (C.A.Q.)
Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69, reversing in part (1998), 160 D.L.R. (4th) 385 (B.C.C.A.)
Lorenzen v. Treasury Board (1993), 38 L.A.C. (4th) 29 (Public Service Staff Relations Board)
M. v. H [1999], 2 S.C.R. 3, affirming (1996), 142 D.L.R. (4th) 1, 31 O.R. (3d) 417 (Ont. C.A.), affirming 132 D.L.R. (4th) 538, 35 C.R.R. (2d) 123 (Ont. Ct. (Gen. Div.)), application for rehearing denied 25 May 2000
McAleer v. Canada (Human Rights Commission) (1999), 36 C.H.R.R. D/255 (F.C.A.), affirming [1996] 2 F.C. 345 (T.D.)
Moffatt v. Kinark Child and Family Services (No. 4) (1998), 35 C.H.R.R. D/205 (Ont. Bd. Inquiry)
Muzychka v. Canada (Minister of Citizenship and Immigration) (1997), 141 F.T.R. 233 (T.D.)
Newfoundland (Human Rights Commission) v. Newfoundland (Minister of Employment and Labour Relations) (1995), 24 C.H.R.R. D/144 (Nfld. Sup. Ct. (T.D.)), Appeal No. 1996, No. 63 
Nova Scotia (Birth Registration No. 1999-02-004200) (Re), [2001] N.S.J. No. 261 (Q.L.), 28 June 2001 (N.S.S.C. (Fam. Div.))  Owens v. Saskatchewan (Human Rights Commission), 2006 SKCA 41, reversing 2002 SKQB 506 
P.(S.E.) v. P.(D.D.), 2005 BCSC 1290, 14 September 2005 
Paul Boulais, File No. 105-655-781, 5 March 1997 (Review Tribunal)
Pottle et al. v. Attorney General of Canada et al., 2004 O1T 3964, 21 December 2004 (Sup. Ct. Nfld. & Lab. (T.D.))
Québec (Comm. des droits de la personne et des droits de la jeunesse) c. Michaud (1998), 34 C.H.R.R. D/123 (T.D.P.Q.)
Québec (Commission des droits de la personne) c. Camping & Plage Gilles Fortier Inc. (1996), 25 C.H.R.R. D/506 (T.D.P.Q.)
Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, 2004 SCC 79
R. v. M.(C.) (1995), 30 C.R.R. (2d) 112, 23 O.R. (3d) 629 (Ont. C.A.)
R. c. Roy, [1998] R.J.Q. 1043 (C.A.Q.)
Rosenberg v. Canada (Attorney General) (1998), 158 D.L.R. (4th) 664 (Ont. C.A.), reversing (1995), 127 D.L.R. (4th) 738, 25 O.R. (3d) 612 (Ont. Ct. (Gen. Div.)) 
School District No. 44 (North Vancouver) v. Jubran, 2005 BCCA 201, 6 April 2005 (B.C.C.A.), reversing 2003 BCSC 6, leave to appeal denied 20 October 2005, SCC Appeal File No. 30964 
Smith and Chymyshyn v. Knights of Columbus and others, 2005 BCHRT 544, 29 November 2005 
The Minister of Human Resources Development v. Donald Fisk (1998), Canadian Employment Benefits and Pension Guide Reports 6330 (Pension Appeals Board), judicial review granted 3 September 1999, File No. A-25-98 (F.C.A.) 
Thébeau v. Thébeau, 2006 NBBR 154, 28 April 2006 (N.B.Q.B.) 
Trembliuk v. Canada (Minister of Citizenship and Immigration), 2003 FC 1264
Trinity Western University v. British Columbia College of Teachers, [2001] S.C.R. 772, 2001 SCC 31, affirming (1998), 35 C.H.R.R. D/435 (B.C.C.A.) 
Veysey v. Canada (Correctional Service) (1990), 43 Admin. L.R. 316, 109 N.R. 300 (F.C.A.), affirming (1989), 29 F.T.R. 74 (F.C.T.D.) 
Vogel et al. v. Attorney General of Canada et al., File No. FD 04-01-74476, 16 September 2004 (Man. Q.B.) Vogel v. Manitoba(1997), 31 C.H.R.R. D/89 (Man. Bd. Adjudication) upon referral from (1995), 23 C.H.R.R. D/173 (Man. C.A.), reversing (1992), 90 D.L.R. (4th) 84 (Man. Q.B.)
Vriend v. Alberta, [1998] 1 S.C.R. 493, reversing (1996), 132 D.L.R. (4th) 595, 34 C.R.R. (2d) 243 (Alta C.A.), reversing (1995), 23 C.R.R. (2d) D1 (Alta Q.B.)
W. (N.) v. Canada (Attorney General), 2004 SKQB 434, 5 November 2004 (Sask. Q.B.)
Waterman v. National Life Assurance Company of Canada (No. 2) (1993), 18 C.H.R.R. D/176 (Ont. Bd. Inquiry)
Wilson Hodder, File No. 104-241-492, 9 January 1997 (Review Tribunal)
Yarrow v. Treasury Board, File No. 166-2-25034, 5 February 1996 (Public Service Staff Relations Board)

*     The original version of this Current Issue Review was published in October 1992; the paper has been regularly updated since that time.

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