Backgrounder

Marriage and Legal Recognition of Same-sex Unions

What is being done today?

Today, the Minister of Justice delivered to the Chair of the House of Commons Standing Committee on Justice and Human Rights a discussion paper - Marriage and Legal Recognition of Same-sex Unions - prepared by the Department of Justice. The Minister intends to ask the Committee to study this issue and to provide him with recommendations on possible legislative reform.

Why Now?

There has been much debate over the issue of marriage in recent years. Currently, there are three challenges before the courts - in British Columbia, Quebec and Ontario - which raise the question of whether the opposite-sex requirement for marriage is constitutional. Trial level courts disagree on this issue - the court in British Columbia upheld the opposite-sex requirement, but the courts in Ontario and Quebec found that it was discriminatory under the Charter and not justified in a free and democratic country. The courts in Ontario and Quebec suspended the effect of their decisions for two years to allow Parliament to address this question, failing which marriage will automatically change in those two provinces to allow marriage between two persons of the same sex.

The Government of Canada believes that it is important to seek the guidance of the appeal courts on the legal questions raised by the different trial level decisions. At the same time, marriage is a question of fundamental social importance, and the Minister of Justice believes strongly that it is also important for this issue to be discussed among Canadians and in Parliament.

What is in the discussion paper?

The purpose of the discussion paper is to provide the Standing Committee with straightforward, contextual information about the legal and social issues concerning marriage and the legal recognition of conjugal relationships, both in Canada and in other jurisdictions, as well as an overview of some of the approaches that could be available to the government. The paper does not provide any recommendations or identify a preferred approach. Rather, it is meant to serve as a starting point for Committee members to generate discussion on the variety of complex issues inherent in changing how the law recognizes marriage and same-sex unions, including the need to find solutions that are consistent with our values as a society and that respect the Constitution.

Specifically, the discussion paper provides a brief review of recent opinion polls and sets out the diverse range of viewpoints expressed in earlier debates and media coverage. The paper traces the current legal framework (including relevant Charter guarantees and the division of powers between the provincial legislatures and the federal Parliament), the distinction between religious and civil marriage, a description of recent court decisions on the constitutionality of the current legal meaning of marriage, and an outline of the roles of Parliament and the courts.

The paper also includes a survey of what other countries are doing, as Canada is the latest of several countries to address this issue. Within Canada, three provinces have enacted legislation relating to same-sex unions - Quebec, Nova Scotia and Manitoba - and Alberta has a bill currently before the Legislature. In other countries, only one - the Netherlands - currently has legislated same-sex marriage. Many others have created registration systems that are deemed parallel to marriage for same-sex unions.

Finally, the discussion paper articulates several fundamental questions underpinning any discussion of whether or how to recognize same-sex unions, including the role of the state in defining legal requirements for marriage, the importance of marriage in our society, how the state can best support marriage, and the meaning and importance of equality in the debate on access to marriage as a social institution. The paper also sets out some possible approaches, including:

• maintaining marriage as an opposite-sex institution, possibly by passing a new statute that would also create a deemed equivalent to marriage for federal purposes for other conjugal relationships;
• changing marriage to also include same-sex couples; or
• with the cooperation of the provinces and territories, leaving marriage solely to the religions.

For each approach, there is a description of what it could look like, and what the effect could be.

What are the next steps?

The Minister intends to ask the House of Commons Standing Committee on Justice and Human Rights to study the issue of marriage and legal recognition of same-sex unions. The Committee will determine in the next few weeks the process it intends to follow. Questions about the Committee process should be referred to the Committees Directorate, House of Commons, Ottawa, Ontario K1A 0A6 (Tel. (613) 992-3150). Members of the public who want to participate in the discussion can write directly to their Member of Parliament or Senator, or send their views to the Minister of Justice, 284 Wellington Street, Ottawa, Ontario, K1A 0H8 or by e-mail at marriage@justice.gc.ca.

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Department of Justice
November 2002