Prop 8 battle first seen in Bill C-38 fight part 2

History of Gay rights in Canada:

The Haig and Birch v. Canada case becomes a landmark case in 1992 as it overturns the Canada Human Rights Act. Kim Campbell the PC minister of justice reintroduces the new Human Rights Act to include sexual orientation, however it did not pass. In 1996 the legislation is changed. It along with the Delwin Vriend case set the stage for the next argument. Benefits to same sex couples.

In 1999 the M v H case, two lesbians suing each other over their break up, allows the Supreme Court to rule same-sex couples should have the same benefits and obligations as opposite-sex common-law couples and equal access to benefits from social programs to which they contribute.

The Supreme Court does not simply strike down law but tries to redefine it by saying that the Ontario Family law should not define spouse as “a man and woman” but that it should be replaced with “two persons.”

This redefinition of Spouse leads to a huge blow up in Parliament over Judicial activism. This leads to the Parliament to vote on a statement reaffirming the definition of marriage as between one man and one woman. This vote is passed overwhelmingly 216 to 55

During the debate Justice Minister Anne McLellan says the definition of marriage is already clear in law and the federal government has “no intention of changing the definition of marriage or legislating same-sex marriage.”

In February of 2000 the Feds introduce legislation to add gay couples to the Benefits and Obligations act. This bill also includes the statement that marriage is “the lawful union of one man and one woman to the exclusion of all others.” On April 11, 2000, Parliament passes Bill C-23, with a vote of 174 to 72. The legislation gives same-sex couples the same social and tax benefits as heterosexuals in common-law relationships.

In Alberta they pass Bill 202 the defense of marriage act which states that the province will use the Notwithstanding Clause to prevent a change to the definition of marriage.

Shortly after this there is a cacophony of court challenges across the country by the Gay lobbyists of Leaf and Egale (using the government funded court challenge monies). In short order BC, Ontario and Quebec within two years all see the cases from the gay lobby and each case is won by the Gay advocates. The lower courts all rule the exact same way.

Ignoring earlier legislation and promises to never change the definition the Liberal party initiates the reference case to the Supreme Court over the definition of marriage.

The Supreme Court replying to the reference state that, “the Constitution act of 1867 did not entrench the common law definition of marriage as it stood in 1867… does not exclude same sex marriage.”

The Supreme Court comes up with the novel idea that Section 15 Charter and the reading in of Sexual Orientation and Same Sex Marriage were not against the charter but rather the obvious result of the charter.

However when it comes to protection of the practitioners of Religion the Supreme Court hedges, “Absent unique circumstances with respect to which the court will not speculate, the guarantee of religious freedom in Section 2 of the Charter is broad enough to protect religious officials from being compelled by the state to perform civil or religious same sex marriages.”

The Court also went a long way to dodge the question of the constitutionality of traditional marriage by avoiding saying yes it was or no it is not. They avoided it not because of any good logical reason but because, “[it] has the potential to undermine the government’s stated goal of achieving uniformity of civil marriage across Canada.”


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