Same-sex marriage was progressively introduced in several provinces and territories of Canada by court decisions beginning in 2003 before being legally recognized nationwide with the enactment of the Civil Marriage Act on July 20, 2005. On June 10, 2003, the Court of Appeal for Ontario issued a decision immediately legalizing same-sex marriage in Ontario, thereby becoming the first province where it was legal. The introduction of a federal gender-neutral marriage definition made Canada the fourth country in the world, and the first country outside Europe, to legally recognize same-sex marriage throughout its borders. Before the federal recognition of same-sex marriage, court decisions had already introduced it in eight out of ten provinces and one of three territories, whose residents collectively made up about 90 percent of Canada's population. More than 3,000 same-sex couples had already married in those areas before the Civil Marriage Act was passed. In 2023, polling by Pew Research suggested that more than three-quarters of Canadian residents supported the legal recognition of same-sex marriage. Most legal benefits commonly associated with marriage had been extended to cohabiting same-sex couples since 1999.
The Civil Marriage Act was introduced by Prime Minister Paul Martin's Liberal minority government to the House of Commons of Canada on February 1, 2005, as Bill C-38. It was passed by the House of Commons on June 28, 2005, and by the Senate on July 19, 2005, it received royal assent the following day. Following the 2006 election, which was won by a Conservative minority government under Prime Minister Stephen Harper, the House of Commons defeated a motion to reopen the matter by a vote of 175 to 123 on December 7, 2006, effectively reaffirming the legislation. This was the third vote supporting same-sex marriage taken by three parliaments under three prime ministers.
Same-sex marriage by province/territory Same-sex marriage was legally recognized in the provinces and territories as of the following dates: June 10, 2003: Ontario July 8, 2003: British Columbia March 19, 2004: Quebec July 14, 2004: Yukon September 16, 2004: Manitoba September 24, 2004: Nova Scotia November 5, 2004: Saskatchewan December 21, 2004: Newfoundland and Labrador June 23, 2005: New Brunswick July 20, 2005 (Civil Marriage Act): Alberta, Prince Edward Island, Nunavut and the Northwest Territories
In some of these cases, some marriages were in fact legal at an earlier date (for example, an Ontario ruling held that marriages performed in January 2001 were legal when performed), but the legality was questioned. As of the given dates, the legality was authoritatively established. The decision of the Government of Ontario to recognize two marriages that took place in Toronto on January 14, 2001, retroactively made Canada the first country in the world to have a government-legitimized same-sex marriage (the Netherlands and Belgium, which legalized same-sex marriage before Canada, had their first in April 2001 and June 2003, respectively).
Overview
Same-sex marriage was originally recognized by law as a result of cases in which courts in eight out of the ten Canadian provinces, and in one of its three territories, ruled existing bans on same-sex marriage unconstitutional. Thereafter, many same-sex couples obtained marriage licences in those provinces; like opposite-sex couples, they did not need to be residents of any of those provinces to marry there.
The legal status of same-sex marriages in these jurisdictions created an unusual jurisdictional issue. According to the Constitution of Canada, the definition of marriage is the exclusive responsibility of the federal government; this interpretation was upheld by a December 9, 2004, opinion of the Supreme Court of Canada (Reference Re Same-Sex Marriage). Until July 20, 2005, the federal government had not yet passed a law redefining marriage to conform to recent court decisions. Until the passage of the Civil Marriage Act, the previous definition of marriage remained binding in the four jurisdictions (two provinces and two territories) where courts had not yet ruled it unconstitutional, but void in the nine jurisdictions (eight provinces and one territory) where it had been successfully challenged before the courts. Before the enactment of federal legislation recognizing same-sex marriage, therefore, the application of federal marriage law differed depending on the province or territory.
Given the Supreme Court ruling, the role of precedent in Canadian law, and the overall legal climate, it was very likely that any challenges to legalize same-sex marriage in the remaining four jurisdictions would be successful as well. Federal lawyers had ceased to contest such cases, and only Alberta's Conservative provincial government remained officially opposed. Premier Ralph Klein threatened to invoke the notwithstanding clause of the Canadian Charter of Rights and Freedoms to avoid having to comply with the ruling. Many commentators opined that a province likely could not use the notwithstanding clause to avoid recognizing same-sex marriage because the federal government had jurisdiction over marriage. Alberta Attorney General Ron Stevens agreed with that conclusion, stating: "Since the court ruled the authority over same-sex marriage falls to the federal government, it is only the federal government who can invoke the notwithstanding clause to maintain the traditional definition of marriage."
On June 17, 2003, Prime Minister Jean Chrétien announced that the government would present a bill to grant same-sex couples equal rights to marry. A draft of what would become Bill C-38 was released on July 17, 2003, by Justice Minister Martin Cauchon. Before introducing it to Parliament, the Cabinet submitted the bill as a reference to the Supreme Court (Reference Re Same-Sex Marriage), asking the court to rule on whether limiting marriage to heterosexual couples was consistent with the Canadian Charter of Rights and Freedoms and if same-sex civil unions were an acceptable alternative. On December 9, 2004, the Supreme Court of Canada ruled that the marriage of same-sex couples is constitutional, that the federal government has the sole authority to amend the definition of marriage, and the Charter'''s protection of freedom of religion grants religious institutions the right to refuse to perform marriage ceremonies for same-sex couples.
Following the Supreme Court's decision, Justice Minister Irwin Cotler introduced Bill C-38 on February 1, 2005, to legalize marriage between persons of the same sex across Canada. The government of Prime Minister Paul Martin supported the bill but allowed a free vote by its backbench MPs in the House of Commons. Defeat of the bill in Parliament would have continued the status quo and probably incremental legalization, jurisdiction by jurisdiction, via court challenges. This trend could have been reversed only through Parliament passing a new law that explicitly restricted marriage to opposite-sex couples notwithstanding the protection of equality rights afforded by the Canadian Charter of Rights and Freedoms or by amending the Canadian Constitution by inserting the clause "marriage is defined as being between a man and a woman", as was recommended by several conservative religious groups and politicians. Given the composition of the House of Commons at the time, such a measure would have been very unlikely to pass. Premier Klein proposed putting the question to the public at large via a national referendum, but his suggestion was rejected by all four party leaders.
History
Court rulings
Background In 1999, the Supreme Court of Canada ruled in M v H that same-sex couples in Canada were entitled to receive many of the financial and legal benefits commonly associated with marriage. However, this decision stopped short of giving them the right to full legal marriage. Most laws which affect couples are within provincial rather than federal jurisdiction. As a result, rights varied somewhat from province to province.
On January 14, 2001, Reverend Brent Hawkes forced the issue by performing two same-sex marriages, taking advantage of the fact that Ontario law authorizes him to perform marriages without a previous license, via the issuance of banns of marriage. The registrar refused to accept the records of marriage, and a lawsuit was commenced over whether the marriages were legally performed. In other provinces, lawsuits were launched seeking permission to marry.
In 2002 and 2003, decisions in the superior trial courts of Ontario and Quebec, Halpern v Canada (AG) and Hendricks and Leboeuf v. Quebec, held that the restriction of marriage to opposite-sex couples was discriminatory and contrary to the equality clause of the Canadian Charter of Rights of Freedoms, while the Supreme Court of British Columbia ruled oppositely. On May 1, 2003, the British Columbia Court of Appeal reversed the superior court decision. The courts in each case suspended the effect of the declarations of invalidity for two years, to allow the federal government to consider legislative responses to the rulings. However, on June 10, 2003, the Court of Appeal for Ontario ruled on an appeal in the Halpern case. The court agreed with the lower court that the heterosexual definition of marriage was discriminatory and that same-sex marriage was legally permitted. However, unlike the previous three court decisions, the Court of Appeal did not suspend its decision to allow Parliament to consider the issue. Instead, it ruled that the 2001 marriages were legal and same-sex marriage was available throughout Ontario immediately. The federal government had appealed the trial decisions to the provincial courts of appeal, but following the decision on the Ontario Court of Appeal, Prime Minister Chrétien announced on June 17, 2003, that the federal government would not seek to appeal the decisions to the Supreme Court. Instead, it would propose a draft Civil Marriage Act and refer it to the Supreme Court for an advisory opinion.
Ontario decision