Bill C-38 – the Civil Marriage Act
Open Letter from the Minister of Justice Concerning Alternative Approaches

To the Members of the Legislative Committee on Bill C-38:

For your use during your considerations of the Bill, I wanted to share with you why the Government has chosen to put forward Bill C-38. In particular, I wanted to set out why the alternative approaches included in the November 2002 Department of Justice Discussion Paper entitled – Marriage and the Legal Recognition of Same-sex Unions – are no longer possible in the view of the Government. As you know, the discussion paper formed the basis of the referral of this question by the former Minister of Justice, the Honourable Martin Cauchon, to the House of Commons Standing Committee on Justice and Human Rights in November of 2002.

While much has been both spoken and written on this topic, there still seems to be a great deal of misinformation about whether any options exist to extending equal access to civil marriage to same-sex couples, who wish to demonstrate the same degree of commitment. Many people would like to think of this topic as a blank slate with many options available. But that is not the case.

We are addressing this topic within the federal constitutional structure of Canada and within a system of parliamentary democracy governed by the Canadian Charter of Rights and Freedoms. These two elements of our governance structure provide a legal and constitutional structure that determine how any option can be designed. I can best illustrate this point by reviewing the three major options that were originally put forward in the November 2002 discussion paper.

The first option is that the word “marriage” be preserved for opposite-sex couples and the relationships of same-sex couples who wish the same degree of commitment be recognized by some word other than marriage - civil union being the most common suggestion. All rights and responsibilities flowing from the civil status are the same. And the only distinction would be the word that describes the relationship.

Such an option is seen as an attractive compromise to many. Those, for example, who view marriage primarily from a religious perspective where it is only possible between one man and one woman, will be able to support this view. They may not be in favour of any legal recognition for same-sex unions, but a balance will be achieved because same-sex couples will be recognized as having parallel rights and responsibilities, but marriage will be kept for opposite-sex couples only. In effect, same-sex couples are treated separately but equally.

Other countries such as many of the Scandinavian states and France have adopted this type of parallel regime and considered it a reasonable compromise to a very divisive issue. Why then can we not learn from their experience and create such a regime in Canada?

The answer is that it is no longer possible to create such a scheme in Canada’s constitutional and legal framework. The discussion paper was released before the many court decisions – now in eight provinces and territories – that have interpreted the meaning of equality within this context. Even in 2002, however, the discussion paper did indicate that this option would likely only be possible with the use of the notwithstanding clause.

The courts have now confirmed that the opposite-sex definition of marriage is unconstitutional, as a clear breach of the equality guarantees contained in the Charter. Although the Supreme Court did not rule on this question, the result is not that the question is left open. Rather, the Supreme Court clearly indicated that the binding decisions in the eights provinces and territories would stand.

As a result, the only way to put the opposite-sex definition of marriage – which no longer exists legally in those eight provinces and territories – back into the law, would be to overrule those decisions, which would require the use of the notwithstanding clause.

Both the British Columbia and Ontario Courts of Appeal looked at the possibility of a civil union alternative and said that it would be less than equal and so unconstitutional. The Ontario Court of Appeal said that, “Allowing same-sex couples to choose their partners and to celebrate their unions is not an adequate substitute for legal recognition.”

The second alternative put forward in the paper would be for both federal and provincial levels of government to get out of the marriage business entirely and leave it to the religious authorities alone. Rather than having any legal or civil marriage, there would be only one legal status of “civil unions” available on the application of both opposite-sex and same-sex couples who desired the civil rights and responsibilities of marriage.

Those same couples, if they wished to be known as married, and not only as “civil unionized”, could then choose to go to their respective church, synagogue or mosque and be married in a religious ceremony. Religious authorities would control all requirements of religious marriage and decide if the particular couple met those requirements and if so, marry them. The marriage itself would be valid for the purposes of all requirements of that particular religion but have no legal effect whatsoever.

This option has a superficial appeal. First, it looks like it treats all couples – opposite-sex and same-sex - the same way and would thus be consistent with the principles of equality contained in the Charter. Second, for many, it would reinforce marriage as a purely religious institution.

However, on any real examination, the problems far outweigh the gains. First, no-one worldwide has adopted this model. Is it simply because no-one else has thought of such a good idea? Not really.

This option was rejected by all of the major religions when they appeared before the Standing Committee in 2003. None of them were willing to no longer have legal effect for their religious marriages. One can easily see why. What would happen if someone decided to marry one person but was already “unionized” with another? The law would no longer have any jurisdiction to protect vulnerable spouses or children of religious marriages, as the law has no jurisdiction over religious marriage.

And in Canada , only the provinces and territories have constitutional jurisdiction over civil unions, as confirmed by the Supreme Court of Canada. So – to get out of the business, Parliament would have to pass a law stating that no-one has the legal capacity to marry for civil purposes in Canada.

How would any of us explain to Canadians – to our own parents and grandparents – that marriage is no longer a part of our law? The other countries that have adopted a parallel regime of civil unions for same-sex couples are unitary states, and not federal states like Canada . In those countries, the entire responsibility for the subject matter of marriage, solemnization of marriage and civil unions in the hands of the national government.

In Canada , the federal government is restricted to the substantive aspects of marriage – that is capacity to marry. The procedural or solemnization aspects of marriage and civil unions are the responsibility of the provinces. Thus any regime to replace civil marriage would have to be done by a coordinated response of all thirteen provinces and territories. History will tell you that such a coordinated response is so rare as to be virtually impossible. So what would that mean to Canadians? Possibly no more access to survivor benefits. Certainly, no more protections in the Divorce Act for child support, custody or access. If there is no more marriage, then there is no more federal jurisdiction over the breakdown of the new civil unions, leading to a possible patchwork quilt of laws depending on your province of residence. And likely no recognition of these new civil unions outside of Canada , if you moved to another country or went on vacation.

This would be an extreme response to the equality issue - to take away civil marriage from all opposite-sex couples just to deny it to a few same-sex couples. It would replace one unfairness with a larger one to opposite-sex couples. No wonder that no other country world-wide has moved in this direction.

That leaves us back where we were when we began. There are before us two alternatives – we can move forward to provide uniformity of the law in this area, by passing the Government’s bill, or we can move backwards to overrule the court decisions and restore the traditional definition of marriage as the law in Canada, by using the notwithstanding clause. That clause enables governments to expressly declare that an act of Parliament shall operate notwithstanding that it violates one or more of the fundamental freedoms and equality rights set out in the Charter.

But in order to do so, Parliament would first have to publicly acknowledge that they are prepared to deliberately discriminate against same-sex couples who wish the same degree of commitment as other married couples. That is how it works. Members who vote in favour of using the notwithstanding clause must realize that they are acknowledging publicly that the law is discriminatory but insisting that the law be proclaimed despite the effect on constitutionally-protected minority rights.

And even that is not the end of it. Parliament is then required to review the law every five years to state whether it wishes to continue this deliberate discrimination. Thus this approach would not even bring a final resolution to this issue – only an interim one. Every five years, on into eternity possibly, members of the House of Commons and the Senate would have to pass statutes endorsing discrimination, until at last one Parliament rejected the unenlightened approach of the past and restored Charter equality rights. It is this aspect that greatly concerns me.

The Government views use of the notwithstanding clause to overrule Charter rights of a minority as inconsistent with responsible leadership. It leaves opens all minorities to the possibility of deliberate discrimination through legislation.

Canada has a long and rich history of tolerance and respect for diversity. Our pluralistic society is the envy of many nations. It is what makes passing this Bill the right thing to do. For Bill C-38 strikes a balance between ensuring that a minority group in our society that has historically been marginalized and excluded is now equally able to access civil marriage and at the same time protecting the continuing freedom of religious authorities to marry only those who meet their requirements. In my view, any other approach in the Canadian context will not work.

Irwin Cotler
Minister of Justice and Attorney General of Canada