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THE CONTROVERSY OVER COUPLES - CONTINUED...

In March of 2004, Stacey M. Johnson from our office wrote an article titled "The Controversy Over Couples".  This article discussed the history of Canada's controversy over the issue of how to recognize different types of intimate adult relationships that fall outside of our current definition of marriage, and specifically the recognition of same-sex relationships.  In June of 2003 the Federal Government asked the Supreme Court of Canada for their opinion on the issue of same-sex marriage, and the Supreme Court recently released their opinion on the topic on December 9, 2004.

In their decision the Supreme Court of Canada confirmed that the definition of marriage is the exclusive responsibility of the federal government.  The Supreme Court further confirmed that extending the right of marriage to same-sex couples is consistent with the Canadian Charter Of Rights And Freedoms.  Given this decision, same-sex marriage is in the process of being legalized in Canada.  This will make us the third country in the world to legalize same-sex marriage nationwide, along with Belgium and the Netherlands. 

Under The Constitution Act, 1867 the provinces have exclusive jurisdiction regarding the solemnization of marriage, including the issuance of marriage certificates.  Given this, even prior to the Supreme Court of Canada's decision, several provinces were issuing marriage certificates to same-sex couples as the result of provincial court cases which had ruled that existing bans on same-sex marriage were unconstitutional.  Currently, British Columbia, Saskatchewan, Manitoba, Ontario, Quebec, Nova Scotia, Newfoundland and Labrador and the Yukon Territory permit same-sex marriage.  Only Alberta, New Brunswick, Prince Edward Island, Nunavut and The Northwest Territories do not issue marriage licenses to same-sex couples, although only the Albertan provincial government remains "officially" opposed to the legalization of same-sex marriage.   A federal bill to formally legalize same-sex marriage in Canada is expected soon, and once passed, provincial jurisdiction regarding the solemnization of marriage will be affected by requiring all provinces to issue marriage licenses to same-sex couples.     

When considering the issue of the legalization of same-sex marriage, the Supreme Court of Canada was also asked to consider whether religious officials would be able to choose not to perform same-sex marriages if they see fit.  In their decision, the Supreme Court indicated that absent unique circumstances, the guarantee of religious freedom in The Canadian Charter Of Rights And Freedoms 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.  They did go on however, to indicate that it would up to the provinces to legislate in a way that protects the rights of religious officials, while providing for the solemnization of same-sex marriage.

It is now just a matter of time before the federal definition of marriage as "the union of one man and one woman to the exclusion of all others" is replaced with "the lawful union of two persons to the exclusion of all others".  It's hard to know how exactly Alberta will deal with the matter once this occurs, but if nothing else, it should make for some interesting times ahead.

By Danielle Elder
January 19, 2005