The Civil Marriage Act was introduced by Paul Martin's Liberal government in the Canadian House of Commons on February 1, 2005 as Bill C-38. It was passed by the House of Commons on June 28, 2005, by the Senate on July 19, 2005, and it received Royal Assent the following day. On December 7, 2006, the House of Commons effectively reaffirmed the legislation by a vote of 175 to 123, defeating a Conservative motion to examine the matter again. This was the third vote supporting same-sex marriage taken by three Parliaments under three Prime Ministers in three different years.
The status of marriages for same-sex couples created in these jurisdictions existed in somewhat of an interim legal capacity. According to the Constitution of Canada, the definition of marriage is the exclusive responsibility of the federal government—this interpretation was upheld by a December 9, 2004 opinion of the Supreme Court of Canada (Re Same-Sex Marriage). Until July 20, 2005, the federal government had not yet passed a law redefining marriage to conform to recent provincial court decisions. Until the passage of Bill C-38, the previous definition of marriage was binding in the four jurisdictions where courts had not yet ruled it unconstitutional, but void in the nine jurisdictions where it had been successfully challenged. Given the Supreme Court ruling, the role of precedent in Canadian law, and the overall legal climate, it would have been highly unusual for any challenges in the remaining four jurisdictions not to result in the legalization of marriage between same-sex individuals there as well. Indeed, federal lawyers had ceased to contest such cases and only the Alberta provincial government remained officially opposed, threatening to invoke the notwithstanding clause of the Canadian Charter of Rights and Freedoms, which many law experts argued would not have actually worked. Ralph Klein, former premier of Alberta, later recanted, and Alberta now allows same-sex marriage providing no government officials or marriage commissioners who oppose same-sex marriage are forced to perform them.
Bill C-38, introduced on February 1, 2005, by Justice Minister Irwin Cotler, legalized across Canada marriage between persons of the same sex. Although supported by the Martin government, it was subjected to a free vote by backbench MPs in the House of Commons. Defeat of the bill in Parliament would have continued the status quo, and incremental legalization on a jurisdiction-by-jurisdiction basis would likely have continued via court challenges. This trend could have been reversed only through Parliament passing a new law that explicitly restricted marriage to opposite sex couples notwithstanding the protection of equality rights afforded by the Canadian Charter of Rights and Freedoms, or by amending the Canadian constitution by inserting the clause "marriage is defined as being between a man and a woman", as was recommended by several conservative groups and politicians. Given the composition of the House of Commons at the time, the passage of such a measure would have been very unlikely. Alberta Premier Ralph Klein proposed putting the question to the public at large via a national referendum, but this was rejected by all four party leaders.
A draft of what would become Bill C-38 was released on July 17, 2003, by the Minister of Justice, Martin Cauchon. Prior to its introduction, he submitted the bill as a reference to the Supreme Court, asking the court to rule on whether limiting marriage to heterosexual couples is consistent with the Canadian Charter of Rights and Freedoms and if same-sex civil unions are an acceptable alternative. On December 9, 2004, the Supreme Court of Canada ruled that the marriage of same-sex couples is constitutional, that the federal government has the sole authority to amend the definition of marriage, and the Charter's protection of freedom of religion grants religious institutions the right to choose not to perform the marriage ceremonies of same-sex couples if they see fit.
In 1999, same-sex couples in Canada were entitled to receive many of the financial and legal benefits commonly associated with marriage in the Supreme Court of Canada's decision in M. v. H.  2 S.C.R. 3. However this decision stopped short of giving them the right to full legal marriage. Most laws which affect couples are within provincial rather than federal jurisdiction. As a result, rights varied somewhat from province to province.
In 2002 and 2003, court decisions in the federal courts of three provinces then required the federal government to implement full same-sex marriage within the next two years:
The federal Liberal government had sought leave to appeal the constitutionality of these rulings to the Supreme Court of Canada, though as above the government in June 2003 indicated that they would stop appealing.
In 2003, the couples in Halpern v. Canada appealed the decision, requesting that the decision take effect immediately instead of after a delay. On 10 June 2003, the Ontario Court of Appeal confirmed that current Canadian law on marriage violated the equality provisions in the Canadian Charter of Rights and Freedoms in being restricted to heterosexual couples. The court did not allow the province any grace time to bring its laws in line with the ruling, making Ontario the first jurisdiction in North America to recognize same-sex marriage. The first homosexual couple married after the decision were Michael Leshner and Michael Stark. Consequently, the City of Toronto announced that the city clerk would begin issuing marriage licences to same-sex couples. The next day, the Ontario attorney general announced that his government would comply with the ruling.
The court also ruled that two couples who had previously had a wedding ceremony in the Metropolitan Community Church of Toronto using an ancient common-law procedure called the reading of the banns would be considered legally married.
On September 13, 2004, the Ontario Court of Appeal declared the Divorce Act also unconstitutional for excluding same-sex marriages. It ordered same-sex marriages read into that act, permitting the plaintiffs, a lesbian couple, to divorce.
A ruling, quite similar to the Ontario ruling, was issued by the B.C. Court of Appeal on 8 July 2003. Another decision in B.C. in May of that year had required the federal government to change the law to permit same-sex marriages (see above). The July ruling stated that "any further delay... will result in an unequal application of the law between Ontario and British Columbia". A few hours after the announcement, Antony Porcino and Tom Graff became the first two men to be legally wed in British Columbia.
On March 19, 2004, the Quebec Court of Appeals ruled similarly to the Ontario and B.C. courts, upholding Hendricks and Leboeuf v. Quebec and ordering that it take effect immediately. The couple who brought the suit, Michael Hendricks and René Leboeuf, immediately sought a marriage licence; the usual 20-day waiting period was waived, and they were wed on April 1 at the Palais de justice de Montréal.
Given the populations of Ontario, British Columbia, and Quebec, more than two-thirds of Canada's population lived in provinces where same-sex marriage had been legalized after the Quebec decision.
On July 14, 2004, in Dunbar & Edge v. Yukon (Government of) & Canada (A.G.), 2004 YKSC 54, the Yukon Territorial Supreme Court issued another similar ruling with immediate effect. Rather than reproducing the Charter equality arguments used by the other courts, the Court ruled that since the provincial courts of appeal had ruled that the heterosexual definition of marriage was unconstitutional, it was unconstitutional across Canada. The position was strengthened by the Attorney General's refusal to appeal those rulings. It further ruled that to continue to restrict marriages in Yukon to opposite-sex couples would result in an unacceptable state of a provision's being in force in one jurisdiction and not another.
On September 16, 2004, Justice Douglas Yard of the Manitoba Court of Queen's Bench declared the then-current definition of marriage unconstitutional. The judge said that his decision had been influenced by the previous decisions in B.C., Ontario, and Quebec. This decision followed suits brought by three couples in Manitoba requesting that they be issued marriage licences. Both the provincial and federal governments had made it known that they would not oppose the court bid. One of the couples, Chris Vogel and Richard North, had legally sought marriage in a high-profile case in 1974 but had been denied.
In August 2004, three couples in Nova Scotia brought suit in Boutilier v. Canada (A.G) and Nova Scotia (A.G) against the provincial government requesting that it issue same-sex marriage licences. On September 24, 2004, Justice Heather Robertson of the Nova Scotia Supreme Court ruled the then-current law unconstitutional. Neither the federal nor the provincial governments opposed the ruling.
Two couples brought suit in Saskatchewan for the recognition of their marriage in a case that went to trial in mid-October 2004. On 5 November 2004, the judge ruled that a Charter right to same-sex marriage existed and that the common-law definition was discriminatory, thereby bringing same-sex marriage to Saskatchewan.
Two lesbian couples brought suit on November 4 to have Newfoundland and Labrador recognize same-sex marriage. As with the previous decisions, the provincial government did not oppose the suit; moreover, the federal government actually supported it. The case went to trial on December 20 and the next day, Mr. Justice Derek Green ordered the provincial government to begin issuing marriage licences to same-sex couples, an order with which the provincial government announced it would comply.
Two same-sex couples brought suit in April 2005 to request an order requiring the government of New Brunswick to issue same-sex marriage licences. This was granted in June 2005.
The Progressive Conservative premier of New Brunswick, Bernard Lord, who personally opposed same-sex marriage, pledged to follow a directive to provide for same-sex marriages from the courts or from Parliament.
On May 20, 2005, a gay male couple with a daughter brought suit in the Northwest Territories for the right to marry. The territorial justice minister, Charles Dent, had previously said that the government would not contest such a lawsuit. The case was to be heard on May 27 but ended when the federal government legalized same-sex marriage.
In 1999, the House of Commons overwhelmingly passed a resolution to re-affirm the definition of marriage as "the union of one man and one woman to the exclusion of all others". The following year this definition of marriage was included in the revised Bill C-23, the Modernization of Benefits and Obligations Act 2000, which continued to bar same-sex couples from full marriage rights. In early 2003, the issue once again resurfaced, and the House of Commons Standing Committee on Justice and Human Rights proceeded to undertake a formal study of same-sex marriage, including a cross-country series of public hearings. Just after the Ontario court decision, it voted to recommend that the federal government not appeal the ruling.
Civil status is of provincial jurisdiction in Canada. However, the definition of marriage is a federal law. On June 17, 2003, then Prime Minister Chrétien announced that the government would not appeal the Ontario ruling, and that his government would introduce legislation to recognize same-sex marriage but protect the rights of churches to decide which marriages they would solemnize.
A draft of the bill was issued on 17 July. It read:
The draft bill was subsequently referred to the Supreme Court; see below.
On 16 September 2003, a motion was brought to Parliament by the Canadian Alliance (now the Conservative Party) to once again reaffirm the heterosexual definition of marriage. The same language that had been passed in 1999 was brought to a free vote, with members asked to vote for or against the 1999 definition of marriage as "the union of one man and one woman to the exclusion of all others. Motions are not legislatively binding in Canada, and are mostly done for symbolic purposes. The September vote was extremely divisive, however. Prime Minister Chrétien reversed his previous stance and voted against the motion, as did Paul Martin (who later became Prime Minister) and many other prominent Liberals. Several Liberals retained their original stance, however, and thus the vote was not defined purely along party lines. Controversially, over 30 members of the House did not attend the vote, the majority of whom were Liberals who had voted against legalizing same-sex marriage in 1999. It was speculated that they had ignored the vote on the wishes of Chrétien, who did not want to have the symbolic importance of the moment undermined by his own party. In the end, the motion was narrowly rejected by a vote of 137-132.
Prime Minister Paul Martin later added a fourth in January 2004:
The addition of a fourth question considerably delayed the opening of the court reference until well after the June 2004 general election, raising accusations of stalling. The consultative process was held in the autumn of 2004.
In its hearings that began in October 2004, the Supreme Court of Canada accused the government of using the court for other goals when the Government declined to appeal rulings that altered the definition of marriage in several provinces.
"Justice Ian Binnie said it 'may not fulfill any useful purpose' to examine traditional marriage all over again, 'given the policy decision of the government'".
The Supreme Court of Canada ruled that the government has the authority to amend the definition of marriage, but did not rule on whether or not such a change is required by the equality provisions of the Canadian Charter of Rights and Freedoms. The Court stated that such a ruling is not necessary because the federal government had accepted the rulings of provincial courts to the effect that the change was required. The Court also ruled that given freedom of religion in the Charter of Rights, and wording of provincial human rights codes, it was highly unlikely that religious institutions could be compelled to perform same-sex marriages, though because solemnization of marriage is a matter for provincial governments, the proposed Bill could not actually guarantee such a protection.
The Parliamentary bill caused rifts in the House of Commons, especially among the governing Liberals. Many Liberal MPs indicated that they would oppose the government's position in favour of same-sex marriage at a free vote. The majority of each of the Liberal Party, New Democratic Party, and Bloc Québécois voted in favour of the bill; the majority of the Conservative Party voted against the bill.
In 2000, Alberta had amended its Marriage Act to define marriage as being between a man and a woman. The law included a notwithstanding clause in an attempt to protect the amendment from being invalidated under the Charter. However, the amendment was invalid since, under the Canadian constitution, the definition of marriage is a federal right. To achieve his goal, Klein could have attempted to pass legislation explicitly discriminating against same-sex marriages and then used the notwithstanding clause to defend it against legal challenges.
Complicating matters, Conservative Party leader Stephen Harper indicated that a Tory government would work to restore the prohibition on same-sex marriage if Parliament voted to do so in a free vote.
Bill C-38, the Civil Marriage Act, was introduced to Parliament for its first reading in the House on February 1, 2005. Prime Minister Martin launched the debate on February 16. The bill passed second reading on May 4 and third reading on June 28, with votes of 164-137 and 158-133, respectively. It then moved to the Senate, and received its first reading on June 29. Debate was launched on July 4, and a Liberal closure motion limited debate on the bill to only four hours. Second reading and committing the bill occurred on July 6, with a vote of 43-12. The Senate passed Bill C-38 on third reading by a margin of 47 to 21 on July 19, 2005. It received Royal Assent, at the hand of the Rt. Hon. Beverley McLachlin (in her capacity as the Deputy Governor General), on July 20, 2005.
The Conservative Party, led by Stephen Harper, won a minority government in the 2006 federal election. Harper had campaigned on the promise of holding a free vote on a motion regarding restoring the traditional definition of marriage. If the motion were to pass, the government would draft a bill to restore the "traditional" definition of marriage. This bill would then have to be passed by the House of Commons and the Liberal-dominated Senate. The Senate traditionally does not vote against bills that have been approved by the House of Commons.
A news report from CTV on May 31, 2006, showed that a growing number of Conservatives were wary about re-opening the debate over same-sex marriage. One cabinet minister stated he just wanted the issue "to go away", while others including Chuck Strahl and Bill Casey were undecided, instead of directly opposed. Peter MacKay noted that not a single constituent had approached him on the issue, and Tory Cabinet Minister Conservative MP Loyola Hearn was against re-opening the debate. On June 2, 2006, Prime Minister Stephen Harper was asked by a reporter about the issue while he was in Montreal. He responded that the vote on whether or not to open up debate over same-sex marriage would take place sometime in the fall.
On December 6, 2006, the government brought in a motion asking if the issue of same-sex marriage should be re-opened to support the traditional definition of marriage. This motion was defeated the next day in a vote of 175 (nays) to 123 (yeas). Prime Minister Stephen Harper afterwards told reporters that he "[didn't] see reopening this question in the future".
|Province||Date of legalization||Number of same-sex marriages|
|Ontario||June 10, 2003||6,524|
|British Columbia||July 8, 2003||3,927|
|Quebec||March 19, 2004||947|
|Alberta||July 20, 2005||409|
|Nova Scotia||September 24, 2004||273|
|Manitoba||September 16, 2004||193|
|Saskatchewan||November 5, 2004||83|
|New Brunswick||June 23, 2005||44|
|Newfoundland and Labrador||December 21, 2004||14|
|Yukon||July 14, 2004||13|
|Prince Edward Island||July 20, 2005||8|
|Northwest Territories||July 20, 2005||2|
|Nunavut||July 20, 2005||1|
The province of Quebec also offers civil unions to same-sex partners. Nova Scotia's Domestic partnerships offer similar benefits. Legislative changes in 2001-2004 extended the benefits of common-law relationships in Manitoba to same-sex couples as well as those of different sex.
In 2003, Alberta passed a law recognizing Adult Interdependent Relationships. These relationships provide specific financial benefits to interdependent adults, including blood relations.
The legal status of same-sex marriages in provinces and territories that did not perform them was uncertain prior to the passage of the Civil Marriage Act. One of the couples who brought suit in Nova Scotia did so in order that their Ontario marriage would be recognized.
The Premier of Alberta, Ralph Klein, wanted to prevent same-sex marriages from being performed or recognized in Alberta, but eventually admitted that the province's chances of doing so were slim to none, and said Alberta would obey the legislation. By contrast, the other remaining province without SSM, Prince Edward Island, announced that it would voluntarily bring its laws into compliance with the federal legislation.
After the enactment of the Civil Marriage Act, CIC adopted an interim immigration policy which did not recognize same-sex marriages which took place outside Canada. For example, a Canadian citizen, legally married in The Netherlands to his same-sex Dutch partner, might not sponsor his Dutch partner for immigration as a spouse, despite the fact that both Dutch law and Canadian law made no distinction between opposite-sex and same-sex civil marriages, and despite the fact that CIC did recognise a Dutch opposite-sex marriage.
On December 12, 2006, New Democratic Party MP Bill Siksay introduced a motion in the House of Commons Standing Committee on Citizenship and Immigration calling on the CIC to immediately rescind the interim policy and "recognize legal marriages of gay and lesbian couples performed in jurisdictions outside Canada for purposes of immigration in exactly the same way as the legal marriages of heterosexual couples are recognized"; the committee voted to recommend that the government do this. In late January 2007, Citizenship and Immigration Minister Diane Finley informed the committee that this would be done. In February 2007, the CIC website was updated to reflect the fact that the policy has been updated.
On September 13, 2004, a lesbian couple known as "M.M." and "J.H." in Ontario were granted Canada's first same-sex divorce. Their initial divorce application had been denied based on the fact that the federal Divorce Act defines spouse as "either of a man or a woman who are married to each other". However Madam Justice Ruth Mesbur of the Ontario Superior Court of Justice ruled that the definition of "spouse" in the Divorce Act was unconstitutional.
In June 2005, a lesbian couple in British Columbia, whose names cannot be released, obtained a similar ruling.
Bloc Québécois MP Richard Marceau, who has advocated in favour of same-sex marriage, requested that Justice Minister Irwin Cotler add a provision to the same-sex marriage bill altering the Divorce Act to permit same-sex divorce. Section 8 of the Civil Marriage Act amended the Divorce Act to permit same-sex divorce.
In July 2003, the hierarchy of the Catholic Church in Canada protested the Chrétien government's plans to include same-sex couples in civil marriage. This is significant because Catholicism has a larger number of adherents in Canada than any other religion or denomination, with 43.6% of the population identifying themselves as Catholic. The church criticisms were accompanied by Vatican claims that Catholic politicians should vote according to their personal beliefs rather than the policy of the government.
Amid a subsequent backlash in opinion, the Church remained remarkably quiet on the subject, at least in public, until late 2004, when two Catholic bishops stated their opposition to same-sex marriage in no uncertain terms. The Bishop of Calgary, Frederick Henry, in a pastoral letter urged Catholics to fight against the legalization of same-sex marriage, calling homosexuality "an evil act." Bishop Henry's letter also seemed to urge the outlawing of homosexual acts, saying "Since homosexuality, adultery, prostitution and pornography undermine the foundations of the family, the basis of society, then the State must use its coercive power to proscribe or curtail them in the interests of the common good." Two human rights complaints were filed against Henry soon afterwards under the Alberta Human Rights act, one of which was dropped at the conciliation stage.
The largest Protestant denomination in the country, the United Church of Canada, offers church weddings to same-sex couples and is in favour of legalizing same-sex marriages, testifying to this effect during the cross-country Justice Committee hearings. Unitarian Universalist congregations also solemnize same-sex marriages, as do the Religious Society of Friends (Quakers) and the Metropolitan Community Church. Some progressive Jewish congregations and some within the Anglican Church have also supported same-sex marriage.
The Hutterite Brethren spoke out against same-sex marriage in a letter written to Prime Minister Martin in February 2005. The sect has historically not involved themselves with politics.
The Humanist Association of Canada, which endorses a non-theistic, non-religious ethical philosophy to life and full separation of church and state, has been supportive of same-sex marriage. Local affiliate groups of The Humanist Association of Canada offer officiancy (marriage commissioner) services across Canada.