|
Backgrounder
Reference
to the Supreme Court of Canada
On June 10, the Ontario Court of Appeal ruled that
the opposite-sex requirement for marriage is unconstitutional and directed that
marriage in the province of Ontario be open to same-sex couples. The Court
stated that its decision does not in any way deal or interfere with the religious
institution of marriage. The Court ordered its decision to take effect immediately.
The Ontario decision follows on a similar decision of the British Columbia
Court of Appeal on May 1 of this year. Although the British Columbia decision
originally gave Parliament until July 12, 2004, to change its legislation
to fit this new definition, it lifted that suspension order on July 8,
effectively allowing same-sex couples to marry in that province immediately.
Another similar decision of the Quebec Superior Court allowed same-sex marriages
effective September 2004. The Quebec case is still before the Quebec Court
of Appeal.
On June 17, 2003, the Prime Minister announced that the Government
of Canada would not appeal the decisions of the courts of appeal in British
Columbia and Ontario on the definition of marriage. On July 15, 2003, the Government
of Canada also withdrew its appeal from the Quebec case.
Further, the Prime Minister announced that the Government
of Canada would draft legislation to legally recognize the union of same-sex
couples, while recognizing the freedom of churches and religious organizations
not to perform marriages against their beliefs. He also indicated that the
draft legislation would be referred to the Supreme Court of Canada to ensure
its constitutionality.
What
is a Reference to the Supreme Court of Canada?
A reference is a procedure by which the
Government of Canada refers important legal or factual questions to the Supreme
Court of Canada and asks the Court to give the Government its opinion.
There have been 76 federal references
since 1892. The most recent of these include: the Anti-Inflation Act Reference
(1976), the Senate Reference (1980), the Newfoundland Continental
Shelf Reference (1984), the Manitoba Language Rights Reference
(1984), the Ng Extradition Reference (1991), the David Milgaard
Conviction Reference (1991), the Quebec Sales Tax Reference (1994)
and the Quebec Secession Reference (1998).
The Supreme Court has also heard many
important references that provincial governments have made to their courts of
appeal (and which were subsequently appealed to the Supreme Court). Examples
include the Constitutional Patriation Reference (1981), the Quebec
Veto Reference (1982), the Provincial Court Judges Reference (1997)
and the Firearms Act Reference (2000).
The Reference Process
The process begins with the filing of the reference questions with the Supreme
Court. Following this, the Attorney General of Canada files a motion to seek
directions from the Supreme Court to determine the procedure that will be followed
on the reference. The Court can decide to cover such matters as who should
be notified of the reference, who is to manage the reference process, what material
should be placed before the Court to form the factual underpinning to the reference,
and deadlines for interested parties to apply to intervene. Other matters such
as who will be granted intervenor status and the timetable by which the various
steps must be taken will also need to be decided.
After the reference process is completed and the Court has given its opinion
on the draft bill, a bill will be introduced in the House of Commons. Once
introduced, it will be debated through the usual legislative process (including
hearings before the House of Commons Standing Committee on Justice and Human
Rights), and put to a free vote in the House. The bill will then be referred
to the Senate.
In taking this course of action, the Government of
Canada is ensuring, through a dynamic dialogue between the courts and Parliament,
that our laws reflect the fundamental values of the Charter.
The Reference
Questions
The Government of Canada has referred the following three questions about the
draft bill to the Court. These questions are reproduced here in full:
- 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?
- 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?
- 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?
- 30 -
JULY 2003
Wording
of Draft Bill
Proposal for an Act respecting certain aspects of legal capacity
for marriage for civil purposes
WHEREAS marriage is a fundamental
institution in Canadian society and the Parliament of Canada has a responsibility
to support that institution because it strengthens commitment in relationships
and represents the foundation of family life for many Canadians;
WHEREAS, in order to reflect
values of tolerance, respect and equality consistent with the Canadian Charter
of Rights and Freedoms, access to marriage for civil purposes should be
extended to couples of the same sex;
AND WHEREAS everyone has the
freedom of conscience and religion under the Canadian Charter of Rights and
Freedoms and officials of religious groups are free to refuse to perform
marriages that are not in accordance with their religious beliefs;
NOW, THEREFORE, Her Majesty, by and with the advice and consent of
the Senate and House of Commons of Canada, enacts as follows:
- Marriage, for civil purposes, is the lawful union of two persons to the
exclusion of all others.
- Nothing in this Act affects the freedom of officials of religious groups
to refuse to perform marriages that are not in accordance with their religious
beliefs.
Consequential amendments will be added in the bill that is introduced in Parliament.*
* Consequential amendments are changes to other federal statutes that will
have to be made as a result of new legislation.
|
