Canada: The Constitution and same-sex marriage

International Journal of Constitutional Law

Volumn 4, Issue 4, 2006, Pages 712-721

  Hogg, Peter W ^a  

^a YORK UNIVERSITY   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33750002505     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mol019     Document Type: Article

References (36)

1. 2005 S.C., ch. 33 (Can.).
2. Mar Roman, Spain approves same-sex marriage, The Globe and Mail, July 1, 2005, at A10.
3. [2004] 3 SC.R. 698.
4. Canada, Department of Justice, Fact Sheet: Reference to the Supreme Court of Canada on Civil Marriage and the Legal Recognition of Same-Sex Unions (January 2004), available at www.canada.justice.gc.ca/en/news/fs/ 2004/doc_31110.html. The reference procedure is permitted by section 53 of the federal Supreme Court Act, R.S.C., ch. S-26 (1985), which allows the Governor in Council to "refer to the Court for hearing and consideration important questions of law or fact."
5. For a fuller account, see Robert Wintemute, Sexual Orientation and the Charter: The Achievement of Formal Legal Equality (1985-2005) and its Limits, 49 McGill L.J. 1143 (2004).
6. The Canadian Charter of Rights and Freedoms is part I (§§ 1-34) of the Constitution Act, 1982, which was enacted by the United Kingdom Parliament as Schedule B to the Canada Act 1982, ch. 11. (U.K.).
7. Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.
8. Law v. Canada, [1999] 1 S.C.R. 497.
9. See Peter W. Hogg, Constitutional Law of Canada (4th ed., Carswell 1997). Chapter 52 attempts to describe the jurisprudence under section 15.
10. Egan v. Canada, [1995] 2 S.C.R. 513, para. 5 (La Forest, J.).
11. Vriend v. Alberta, [1998] 1 S.C.R. 493.
12. [1999] 2 S.C.R. 3.
13. Little Sisters Book and Art Emporium v. Canada, [2000] 2 S.C.R. 1120.
14. 30 & 31 Victoria, c. 3 (1867) (U.K.).
15. Hogg, supra note 9, sec. 26.3.
16. Hyde v. Hyde and Woodmansee, (1866) L.R. 1 P. & D. 130, 133 (Eng.). The common-law definition was reaffirmed in the Modernization of Benefits and Obligations Act, 2000 S.C., ch. 12, §1.1.
17. Federal Law-Civil Law Harmonization Act, No. 1, 2001 S.C., ch. 4, §5.
18. EGALE Canada v. Canada, (2003) 225 D.L.R.4th 472 (B.C. Ct. App.).
19. Halpern v. Canada, (2003) 225 D.L.R.4th 529 (Ont. Ct. App.).
20. Hendricks v. Quebec, [2002] R.J.Q. 2506 (Que. Sup. Ct.).
21. Initial suspensions of the declarations of invalidity in Ontario and in Quebec were quickly lifted. See EGALE Canada v. Canada, supra note 18
22. and Hendricks v. Quebec, supra note 20.
23. The text of the questions in the reference, supra note 4, as amended, was as follows: 1. Is the annexed Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes within the exclusive legislative authority of the Parliament of Canada? If not, in what particular or particulars, and to what extent? 2. If the answer to question 1 is yes, is section 1 of the proposal, which extends capacity to marry to persons of the same sex, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars, and to what extent? 3. Does the freedom of religion guaranteed by paragraph 2(a) of the Canadian Charter of Rights and Freedoms protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs? 4. Is the opposite-sex requirement for marriage for civil purposes, as established by the common law and set out for Québec in section 5 of the Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars, and to what extent?
24. [2004] 3 S.C.R. 698. I disclose that I was counsel for the attorney general of Canada in the reference.
25. The Court's opinions are usually attributed to a particular justice or justices, even when the Court is unanimous, but from time to time, often in cases that have high constitutional significance, the opinion is said to be written by "the Court."
26. [2004] 3 S.C.R. 698, para. 16.
27. Editor's note: The term "heads of power" refers to subject matters enumerated by the Constitution Act, 1867 and the legislative authority allocated therein between the federal Parliament and individual provincial legislatures or assemblies.
28. Id. at para. 34.
29. [2004] 3 S.C.R. 698, para. 22.
30. Id. at para. 27.
31. Another point the Court could have made - but did not - was that, following the decision in M. v. H., supra note 12, Parliament and the provincial and territorial legislatures have for the most part by legislation assimilated same-sex relationships to opposite-sex common law relationships.
32. The Civil Marriage Act also includes section 4, which was not in the proposed legislation reviewed by the Court. Section 4 provides "for greater certainty" that "a marriage is not void or voidable by reason only that the spouses are of the same sex."
33. [2004] 3 S.C.R. 698, para. 33.
34. Also, it was never the policy of the government of Canada to propose a civil union alternative to marriage for same-sex couples.
35. [2004] 3 S.C.R. 698, para. 60.
36. The reference jurisdiction is discussed in Hogg, supra note 9, sec. 8.6.