Today, Monday, May 16, Egale and Canadians for Equal Marriage will appear before Parliament’s Legislative Committee on Bill C-38.

The Committee hearing will be televised and will feature Alex Munter, National Coordinator of Canadians for Equal Marriage and Laurie Arron, Director of Advocacy of Egale.

Following the Justice Minister’s appearance last Thursday, Egale / CEM will be the first non-government witnesses to appear before the Committee.

Tomorrow, Tuesday, at 3:30 pm the following groups will be appearing:

– Law Commission of Canada
– La coalition québécoise pour le mariage civil des couples de même sexe
– Parents, Families and Friends of Lesbian and Gay Persons (Canada)

The hearings will continue on Wednesday.

Below are our written submissions:





1. Introduction

Egale Canada and Canadians for Equal Marriage support Bill C-38, which brings federal marriage laws into compliance with the Charter. It extends equal marriage across Canada, recognizes the protection of religious freedom that the Charter provides, and eliminates the patchwork of laws that now exist across the country with respect to equal civil marriage for same-sex couples. Bill C-38 reflects Canadian values like inclusion, diversity, mutual respect and fairness.

2. About Egale and Canadians for Equal Marriage (CEM)

a. Egale

Egale Canada is a national organization committed to advancing equality and justice for lesbian, gay, bisexual and trans-identified people, and their families, across Canada. Founded in 1986, Egale has members in every province and territory.

Egale has appeared before numerous federal Parliamentary Committees. Of particular note, Egale was a witness to the Justice Committee when it held hearings in 2002 and 2003 on the issue of equal marriage for same-sex couples and representatives of Egale attended every public hearing held by the Justice Committee.

Egale has intervened before the Supreme Court of Canada in every gay rights case that has reached the Court, including Egan v. Canada, Mossop v. Canada, Vriend v. Alberta, M v. H & Ontario, Little Sisters Book and Art Emporium v. Canada Customs, B.C. College of Teachers v. Trinity Western University, Chamberlain v. Surrey School Board, and most recently the Reference re Same Sex Marriage (the “Reference”). Egale was one of the plaintiffs that brought the marriage challenge in B.C., was an intervenor in the Ontario marriage case, and intervened as part of the Coalition québécoise pour le mariage civil des conjoints et conjointes de même sexe in Quebec.

Egale maintains an active commitment to bringing an intersectional approach to our work, meaning that we recognize the linkages between different forms of oppression, including oppression based on race, sex, class, religion, (dis)ability, age, gender identity, gender expression, and sexual orientation. Respect for each individual’s full identity requires that our struggle for equality cannot be carried out in isolation from the struggle for equality of all disadvantaged communities.

b. Canadians for Equal Marriage (CEM)

Canadians for Equal Marriage is a multi-partisan Canada-wide campaign to ensure passage of the federal equal marriage legislation that was first announced on June 17, 2003. CEM was created in August 2003 and is an umbrella group that includes participation by gay and non-gay groups and individuals, united in the cause of equality.

CEM partner organizations represent millions of Canadians. These include Egale Canada, the Canadian Federation of Students, the Canadian Labour Congress, the Canadian Psychological Association, the Canadian Association of Social Workers, and many others.

3. Background

As noted in the preamble to Bill C-38, Courts have consistently ruled that excluding same-sex couples from civil marriage violates the Charter of Rights and Freedoms because it constitutes discrimination based on sexual orientation and is not reasonably justified.

These courts have heard all the arguments and reviewed all the evidence that opponents of equal marriage could muster, and have repeatedly and consistently found no merit whatsoever to their arguments, including those about any conflict with religious freedom or the best interests of children. They have examined the institution of civil marriage and come to the conclusion that same-sex couples fit it just fine. Courts have found that the objective of privileging opposite-sex couples over same-sex couples is not constitutionally valid as this purpose is discriminatory in itself, and that the goals of encouraging procreation and companionship are not furthered by excluding same-sex couples.

As a result of these court decisions, 89% of Canadians now live in jurisdictions where same-sex couples can legally marry. Equal marriage came to these jurisdictions on the following dates:

Ontario – June 10, 2003
British Columbia – July 8, 2003
Quebec – March 19, 2004
Yukon Territory – July 14, 2004
Manitoba – September 16, 2004
Nova Scotia – September 24, 2004
Saskatchewan – November 5, 2004
Newfoundland & Labrador – December 21, 2004

The only jurisdictions that do not permit same-sex couples to marry are New Brunswick, PEI, Alberta, the Northwest Territories and Nunavut.

The Supreme Court of Canada issued its opinion in the Reference on December 9, 2004. It found that the federal government has exclusive jurisdiction over any opposite-sex restriction on marriage, that including same-sex couples in civil marriage is consistent with the Charter (and in fact “flows from it” ), and that the Charter protects religious officials from being compelled to perform a marriage that goes against their religious beliefs, to rent a sacred place for such a marriage, or to otherwise assist in the solemnization of such a marriage.

The Attorney-General of Canada asked the Supreme Court to re-open the decisions of courts across the country who found that excluding same-sex couples from civil marriage violates the Charter. Egale argued before the Court that it should not re-open these decisions, because to do so would question the finality of these judgments and amount to a back-door appeal. The Court agreed with Egale. It also stated that there is a need for a uniform law across Canada and that the decisions that it refused to re-open are binding in those jurisdictions.

4. Equal marriage has been approved in principle by Parliament

The institution of marriage both reflects and affects society. Throughout history, marriage has evolved with society. The purpose of many of these changes was to end discrimination. Slaves were permitted to marry. Women were no longer treated as the legal property of their husbands. Inter-racial couples were permitted to marry. Husbands were no longer permitted to rape their wife. Unbelievably, this last change was only made in Canada in 1985.

Canadians now recognize that lesbian, gay, bisexual and trans-identified people should not be treated differently than their heterosexual peers simply because of their sexual orientation or gender identity. Most federal laws have been changed to provide equal treatment. However, the exclusion from civil marriage in the 5 remaining jurisdictions represents a glaring omission to the federal government’s commitment to equality. The only way to remedy this problem is to provide equal access to civil marriage. No separate and unequal scheme will do.

Creating a separate legal category for same-sex couples and denying them access to civil marriage would only reinforce the message that same-sex relationships are inferior to opposite-sex relationships, and by extension that lesbian, gay, bisexual and trans-identified Canadians are second-class citizens. In addition, Parliament simply lacks the jurisdiction to implement such a scheme. As noted by the Supreme Court, “Civil unions are a relationship short of marriage and are, therefore, provincially regulated.” This fact is aptly noted in the preamble to Bill C-38.

On May 4, 2005, Bill C-38 passed second reading and thus equal marriage was officially approved in principle by Parliament. As such, it is not necessary to go into further detail about why Parliament should legislate equal marriage rather than pursue other options.

5. The symbolic importance of Bill C-38

The goal of ending marriage discrimination must be achieved in substance as well as in fact. Many Canadians do not see the numerous court decisions as legitimate. Many Canadians believe that equal marriage is not really legal unless Parliament passes legislation. It is important that Parliament pass Bill C-38 not only for the actual legal changes it will effect, but also because of the symbolic importance of Parliament definitively legislating to extend equal marriage across Canada.

Passage of Bill C-38 will convince Canadians that same-sex couples really do have the right to legally marry. It will also send an important message. It will tell Canadians that same-sex couples are not second-class citizens and are entitled to the same legal rights and protections as everyone else, including Charter protection. It will tell Canadians that Parliament stands up for everyone’s Charter rights, and that it will not selectively apply those rights.

6. Bill C-38 ends marriage discrimination

Bill C-38 fully accomplishes the goal of ending discrimination against same-sex couples in federal marriage law. It takes Canada from a complex and incomplete patchwork of marriage equality and inequality to a uniform, comprehensive and Charter-compliant law.

Section 2 of the Civil Marriage Act is the core of the legislation. It states that “Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.” This section is the operative section that ends any opposite-sex restriction on civil marriage. Section 4 is an appropriate interpretive provision to give clear guidance to the courts.

Section 9 amends the Federal Law and Civil Law of the Province of Quebec Act (Part I of the Harmonization Act). Section 5 of the Harmonization Act contained an explicit opposite-sex restriction on civil marriage. This restriction was found to be an unconstitutional violation of s.15 of the Charter by both the Quebec Superior Court and a unanimous 5 judge panel of the Quebec Court of Appeal. Section 9 of Bill C-38 is necessary to officially correct the Harmonization Act and to ensure consistency with its Quebec counterpart.

7. Bill C-38 protects religious freedom

Bill C-38 protects religious freedom in two ways. First, in the 5 remaining jurisdictions, it permits those religious officials who choose to marry same sex couples to be able to do so. Second, throughout Canada, it recognizes that religious officials who choose not to marry same sex couples are fully protected by section 2 of the Charter.

There are many religions who want to marry same-sex couples. These include the United Church of Canada, the Canadian Unitarian Council, the Religious Society of Friends (Quakers), most reform rabbis, and many Buddhists, as well as clergy from the Anglican and Lutheran religions. The B.C. Court of Appeal stated that if equal marriage were not allowed then these religious groups would be forced “to accept the religious practices of others.”

The preamble to Bill C-38 notes the freedom of religious officials “to refuse to perform marriages that are not in accordance with their religious beliefs.” This freedom is guaranteed by s.2(a) of the Charter. As noted by the Supreme Court, “the guarantee of religious freedom in s. 2(a) of the Charter is broad enough to protect religious officials from being compelled by the state to perform civil or religious same-sex marriages that are contrary to their religious beliefs.”

The Supreme Court of Canada stated that the Charter not only protects religious officials from being forced to perform a marriage that goes against their religious beliefs, but also that the Charter protects them from being compelled to rent a sacred place for such a marriage, or to otherwise assist in the solemnization of such a marriage.

Section 3 of Bill C-38 recognizes the Charter protection of religious freedom that was confirmed by the Supreme Court. It lets Canadians know that this protection exists and thereby gives them comfort and security. Since the Charter is the highest law in the land, Charter protection is superior to protection in either federal or provincial law.

Each province and territory must comply with the Charter’s protection of religious freedom. There is no doubt that they will. Ontario has already taken the proactive measure of explicitly writing this protection directly into its laws. In amending its Human Rights Code and Marriage Act it mirrored exactly the protection set out in the Reference.

8. Bill C-38 avoids costly and unnecessary court challenges

Bill C-38 accomplishes the goal of full marriage equality not only in the 5 “have-not” jurisdictions, but also in the 8 jurisdictions where equal marriage is now the law. While same-sex couples can access civil marriage in these 8 jurisdictions, there are inconsistencies in the law that remain. Bill C-38 addresses these inconsistencies through the consequential amendments contained in sections 5, 6, 7, 8, 10, 11, 12, 13, 14 and 15.

One legal inconsistency is that federal law prevents same-sex couples from obtaining a divorce. In Ontario, a couple had to go to court to get a divorce, which resulted in subsection 2(1) of the Divorce Act being declared unconstitutional. However, this change is only effective in Ontario and, without Bill C-38, court challenges would be required in each of the 12 other jurisdictions.

Bill C-38 provides relief to same-sex couples from having to go to court, either to secure equal marriage or to secure equal treatment once married. In every jurisdiction where same-sex couples have brought claims to equal marriage, the federal government has been ordered to pay their legal costs. Passing Bill C-38 will save the government both its own legal costs and the legal bills of the couples that it will be ordered to pay should the Bill not become law. It will save even more money if you consider the cost of Parliament’s valuable time in having to debate this issue again.

9. Don’t take away our marriages

For nearly two years now, same-sex couples have been getting legally married in Canada. Thousands have done so. These weddings have brought joy, affirmation and security to these couples, and to their children. It has allowed them to share in something that most Canadians take for granted – their right to legally marry.

Same-sex couples have gotten married for the same reasons as their opposite-sex counterparts – to publicly proclaim and celebrate their love and commitment, to protect their children, to ensure legal and social recognition, and for a whole host of other reasons. These couples have benefited greatly from being able to realize their choice to marry, an intensely personal choice that is widely recognized, at least for heterosexual couples, as a basic human right.

Despite the fact that equal marriage has been a Canadian reality for nearly two years, some MPs have stated that Parliament should legislate to take away the right to marry of same-sex couples and to annul existing marriages and give them second-class status instead.

Passing Bill C-38 will end the equal marriage debate and provide comfort, security and finality to the thousands of same-sex couples across Canada who are already married.

10. What if C-38 doesn’t pass?

If C-38 doesn’t pass, the current patchwork of laws will continue to exist. Same-sex couples will continue to marry in jurisdictions representing almost 90% of Canada’s population. They will be forced to go to court to secure access to civil marriage in the remaining jurisdictions, as well as access to divorce and equal treatment under the various other laws that C-38 would have amended.

If C-38 doesn’t pass, the equal marriage debate will continue. Constitutional imperatives do not go away. The cost of a new and protracted debate will continue to weigh heavily on gay, lesbian, bisexual and trans-identified Canadians. It will continue to hurt when we hear it said that we are a threat to marriage, to families, and to children. It will continue to hurt when we hear it said that we are immoral or evil.

A recent Ipsos-Reid poll showed that 39% of Canadians believe the equal marriage debate has increased discrimination towards gay and lesbian people, while only 9% said it has decreased discrimination.

If C-38 doesn’t pass, there will undoubtedly be attempts to turn back the clock on equality, to take away our right to marry and to annul existing marriages of same-sex couples. This raises the issue of the notwithstanding clause, which would be the only way for Parliament to do this. Bill C-38 recognizes this in its preamble.

Parliament must enact laws based on what the law is today, not on wishful thinking about what the law might be in the future. Parliament knows the opposite-sex restriction on civil marriage has been struck down as being unconstitutional in 8 jurisdictions. To enact legislation reinstating the opposite-sex restriction in these 8 jurisdictions would be acting in bad faith and would call into question Parliament’s respect for the rule of law. To act in good faith, any government wishing to enact such legislation must either invoke the notwithstanding clause or attempt to obtain a reference opinion from the Supreme Court stating that such legislation would be constitutional.

Some people have stated that only the common law opposite-sex restriction has been struck down and that courts would defer to Parliament if it was legislation that was challenged. This is simply untrue.

Court have declared not only the common law, judge-made exclusion of same-sex couples from civil marriage to be unconstitutional, they have also declared s.5 of the Federal Law and Civil Law of the Province of Quebec Act to be unconstitutional. This section defined marriage as between a man and a woman and was effective only in Quebec. As noted above, both the Quebec Superior Court and by a unanimous 5 judge panel of the Quebec Court of Appeal declared that it unconstitutionally violated s.15 of the Charter.

MPs must recognize that they have only two choices – enact legislation to comply with the numerous court decisions to date or invoke the notwithstanding clause.

11. Don’t use the notwithstanding clause

Parliament could choose to use the notwithstanding clause to enact an opposite-sex restriction on civil marriage or to annul existing marriages. The notwithstanding clause would allow Parliament to explicitly override the Charter for a period of 5 years. After 5 years, Parliament would have to legislate again, otherwise the notwithstanding clause would “expire” and the opposite-sex restriction would cease to be valid in those jurisdictions where it’s been struck down by the courts.

Parliament has never before used the notwithstanding clause. Doing so would set a dangerous precedent, making it easier for Parliament to override other people’s Charter rights in the future.

Parliament should consistently uphold the Charter, not selectively choose which minorities are deserving of protection and which are not. Such a selective rights approach is a slippery slope to a Canada in which no one can be sure that their Charter protection won’t be taken away.

12. Recommendation

Egale and Canadians for Equal Marriage recommend that Bill C-38 be passed into law in its current form. Doing so will bring federal marriage law into compliance with the Charter, will fix the current legal patchwork, and will bring to an end this acrimonious, costly and harmful debate over how to treat gay, lesbian, bisexual and trans-identified Canadians.