Written on behalf of Long Shariff & Associates
Canada is known around the world for its liberal and progressive laws. Although same-sex marriage was first declared legal in The Netherlands in 2001, Canada quickly followed suit by 2005.
However, the road to legalizing same-sex marriage was a long one. This article will explore how homosexuality became legal in Canada and how it became legal for same-sex couples to marry all across Canada. And although same-sex marriage was made legal in Canada in 2005, many laws as they relate to the LGBTQ2 family require much-needed updates for equality to fully be realized.
Homosexuality used to be illegal in Canada
Homosexuality was illegal in Canada until 1969, when it was decriminalized by the Criminal Law Amendment Act of 1968. The bill decriminalized sexual acts of consenting adults over the age of 21 years, regardless of their gender.
The decriminalization of homosexuality is one of former Prime Minister Pierre Elliott Trudeau’s most notable contributions to Canadian law. As he famously stated in 1967 in defence of the change in the law: “There’s no place for the state in the bedrooms of the nation.”
LGBTQ2 rights are not protected by decriminalization of homosexuality
Changing attitudes in society, in the law and courts, and in the media have all played a role in shaping same-sex marriage’s history in Canada. Although their sexual orientation was no longer the subject of the criminal law, the LGBTQ2 community in Canada still had an uphill battle to attain true equality not only in love but in marriage as well.
Even after the decriminalization of homosexuality, gay and lesbian people were legally discriminated against in many ways. For example, they could be arrested for having sex or being found together in a bedroom with a door closed. People who worked with young people or children might have lost their jobs if they were discovered to be gay or lesbian. Others may have been refused service at a business or restaurant.
Quebec became the first province to include sexual orientation in its Human Rights Code in 1977. This law made it illegal to discriminate on the basis of sexual orientation in employment, housing, and public accommodations. In 1979, the Canadian Human Rights Commission recommended the addition of “sexual orientation” to the Canada Human Rights Act. The first bill tabled to do so, Bill C-242 of 1980, did not pass. From 1980 through to 1991, similar proposed bills were all defeated.
In 1992, Member of Parliament Svend Robinson attempted to remove the term “opposite sex” from the definition of “spouse” in Bill C-55, a bill regarding survivor benefits provisions of federal pension legislation. This also failed. “Sexual orientation” would not become a protected ground under the Canada Human Rights Act until 1996.
Through time, courts began to recognize the validity of same-sex marriage
It was not until Canada (Attorney General) v Mossop in 1993 that the attitudes towards same-sex marriage began to shift. In this case, two Supreme Court judges opined that “family status” could include same-sex couples cohabitating in a long-term relationship.
In Egan v Canada, although unsuccessful in a lawsuit concerning the right to claim spousal pension under the Old Age Security Act, the Supreme Court was unanimous that sexual orientation is a protected ground, which extends to same-sex partnerships. That same year, an Ontario court judge found that Ontario’s Child and Family Services Act at that time infringed on the equality rights protected by the Charter of Rights and Freedoms by not allowing same-sex couples to apply together for adoption. Ontario became the first province to allow same-sex couples to adopt, encouraging some other provinces to follow suit.
In 1999, the case M v H came before the Supreme Court. This case concerned two Toronto women who had lived together for over a decade. One of the spouses sued the other for spousal support under Ontario’s Family Law Act, where “spouse” was defined as either a married couple of a “man and woman” who are unmarried and lived together for at least three years. The Supreme Court ruled that the limited description of spouse is unconstitutional, as is any provincial law that denies benefits to same-sex couples.
Federal government doubles down on exclusion of same-sex couples in definition of marriage
Even though many provincial laws had shifted to comply with the Supreme Court’s ruling in M v H, on the federal level marriage was still defined to unions of men and women. In 1999, Justice Minister Anne McLellan expressed that the government had “no intention of changing the definition of marriage or legislating same-sex marriage.”
Bill C-23 was introduced by the federal government in February 2000 to drive home this point. Although the act would give same-sex couples cohabitating for more than a year the same rights as common-law couples, Minister McLellan announced that the definition of marriage would remain “the lawful union of one man and one woman to the exclusion of all others.”
Ontario and BC were first to legalize same-sex marriage
The first two provinces to legalize same sex marriages were Ontario and British Columbia. In Ontario, the legalization stemmed from the Ontario Court of Appeal decision in Halpern v Canada (Attorney General). A Toronto pastor had begun performing same-sex marriages without a city-issued marriage license. The need for certification of the marriage under the provincial registrar forced a court case.
The unanimous ruling found that the exclusion of same-sex couples from the definition of marriage was a Charter violation. Parties to the suit, Michael Leshner and Michael Stark (known as “the Michaels”), were the first gay couple to be issued a marriage license in Canada. Following this decision, courts across Canada also legalized same-sex marriage in their jurisdictions. By 2005, only New Brunswick, Northwest Territories, Nunavut, Alberta, and Prince Edward Island did not recognize same-sex marriage.
Federal law passed in 2005 to legalize same-sex marriage
It was not until the introduction of Bill C-38, the Law on Civil Marriage, in 2005 that same-sex marriage was considered at the federal level. The bill passed in June of that year, with Prime Minister-to-be Stephen Harper promising to revisit the law if his government goes into power. As of July 20, 2005, same-sex couples have legally been allowed to marry in Canada and it remained unchallenged by governments in power thereafter.
The road to equality has been an uphill climb, but today same-sex couples are able to enjoy the same benefits as all Canadians.
Contact Long Shariff & Associates in Stouffville for Same-Sex Family Matters
The family lawyers at Long Shariff & Associates work with clients to resolve their family law disputes through mediation. We will review your situation and provide a realistic assessment of the likelihood of successful outcomes and explore your other options. We will advocate for the best possible outcome on your behalf. To review your matter with a member of our team, please reach out to us online, or call us at 905-591-4545.