Nancy Nicol

The End of Second Class

© 2006 Intervention Video Inc. (90 min., DVD)
Directed and Produced by Nancy Nicol


“"The only reason why same sex couples have not been able to marry in this country for the last several hundred years is because same sex couples weren't recognized to be worthy of the institution of marriage. What the marriage case is about is moving up the equality ladder. At the lower rung of the equality ladder we engage the discourse of condemnation. We want to establish that gays and lesbians are equal enough in our society that they shouldn't be condemned to the back of the bus... But what the marriage case does is test whether gays and lesbians are really equal."
Joe Arvay, Q.C., Lawyer, The End of Second Class


On July 20th, 2005, Canada became the forth country in the world to extend the right to marry to lesbian and gay couples, following a decade long battle.

The End of Second Class traces the story through the voices of three couples from Quebec, Ontario and British Columbia, and key activists and human rights lawyers who were at the forefront of the battle.

In 1998, Michael Hendricks and René LeBoeuf, applied for a marriage license in Montreal, motivated by the testimony of Anne Robinson, a professor of law from Laval university who recommend the right of lesbians and gay men to marry to a Quebec Human Rights Enquiry on Violence and Discrimination against gays and lesbians in 1993. Michael and René had been activists in ACT-UP (the AIDS coalition to unleash power) for many years and had seen the impact of lack of relationship recognition on their friends in the context of the devastation of the gay community in Montreal wrought by the AIDs crisis. When they initiated their case, they were quite isolated and received little support.

The tide turned in 1999, when a Supreme Court of Canada decision forced the Federal government to bring in legislation recognizing lesbian and gay common law relationships. Gay rights activists and key lawyers seized the moment to challenge the Canadian government's exclusion of same sex couples from marriage. In May 2000, Martha McCarthy filed a case in Ontario on behalf of seven couples seeking the right to marry. At the same time, Egale Canada initiated a marriage challenge with five couples in B.C. Cythnia Petersen, was their lawyer. Egales' five couples were joined by three more couples represented by barbara findlay and together, the eight couples filed their case for the right to marry in Sept., 2000 in B.C.

At the time Jane Hamilton and Joy Masuhara had been together for 7 years and had wanted marry for a number of years. They had already sought legal recognition of their family to provide Meghann and Sarah with two legal parents by doing a co-parent adoption, which became possible for same sex couples in B.C. in 1995. That experience contributed to their resolve to pursue the marriage case.

Around the same time, Kathy Lahey, a professor of law at Queen's university and a member of the equal marriage committee of Egale, while doing research into marriage law in Canada in preparation for the legal challenge, came across a little known statute in Ontario.

"I really couldn't believe it when I saw that in Ontario, banns can be issued as an independent source of entitling a person to get married. You don’Äôt need a marriage license if you can belong to a church that has the right to announce banns. It's an alternative path to gaining the right to marry."
Kathy Lahey, Lawyer

Taking this up, the Metropolitan Community Church of Toronto (MCCT), proceeded to challenge the ban on same sex marriage by performing two same sex marriages in January 2001.

"The weddings were on a Sunday afternoon and that morning at six o’clock I was picked up at my home by undercover body guards and taken to the church on a different route. I had my bullet proof vest on because I had to, they wanted to make sure that nothing happened on the way to church. I had twelve undercover body guards with me, protecting me. There were many many police dispersed in the crowd and in the basement. And when I came in to welcome people, I officially declared the weddings a worship service to give it that legal protection. And I said to the crowd, "if anyone disrupts the worship service, it's a criminal offence and we will charge you." But, it was just electric. There was this unbelievable sense of excitement and fear."
Reverend Dr. Brent Hawkes
Paster, Metropolitan Community Church of Toronto

On June 10th 2003, following a series of mounting court rulings that the denial of the right to marry to gays and lesbians was a violation of the Charter of Rights and Freedoms, the Ontario Court of Appeal ruled unanimously in favour of same sex marriage and order the city clerk to issue marriage licenses immediately. Michael Leshner and Michael Stark, a couple, represented by McCarthy, married that same day. Toronto became a centre for same sex marriage for couples from across Canada and the world. The court order also gave retroactive recognition to the MCCT marriages of Joe Varnell and Kevin Bourrassa and Ann and Elaine Vautour performed in January 2001, making these the first legally recognized same sex marriages in world history.

Following the court decision Jean Chrétian, then Prime Minister of Canada, announced that the government would not appeal the decision and instead would put enabling legislation to recognize same sex marriage in the form of a reference to the Supreme Court of Canada.

The response of opponents to same sex marriage was immediate and extensive. Prayer vigils were held in front of MPs office across the country and Stephen Harper, leader of the Canadian Alliance (now Conservatives) tabled a motion in Parliament to defend the traditional definition of marriage as between a man and woman. The motion was narrowly defeated a vote of 132 to 137. For the first time in Canada, the Parliament voted to up hold the right of lesbians and gays to marry.

However, the political process continued to remain unstable. The Supreme Court hearing on the government’s proposed same sex marriage bill was delayed. Before the issue could be resolved an election was called. The issue of same sex marriage became a central issue during the summer 2004 election, and Stephen Harper campaigned to defend the traditional definition of marriage.

The election resulted in a minority Liberal government. But from day one, the Conservative Party was intent on bringing the government down. On the opening day of Parliament, the conservatives and the Bloc Quebecois brought forward amendments to the throne speech threatening the government with a non-confidence vote. The next day, the Supreme Court of Canada hearing on the same sex marriage reference opened. Three month later, the Supreme Court ruled in favour of same sex marriage, and the government introduced Bill C-38, an act which would extend the right to marry to same sex couples. But the fate of the bill was uncertain given the fragile state of the minority government and on-going opposition to same sex marriage from Conservatives and a significant number of back-bench Liberal members.

In the last act of The End of Second Class, Alex Munter, co-chair of Canadians for Equal marriage, gives a blow by blow of the last days of the minority parliament and how the bill was passed. In an atmosphere of profound mistrust and brinkmanship, the House leaders for the Liberals, the Bloc Québécois and the NDP finally agreed to an unprecedented extension of the parliamentary session to pass the same sex marriage bill. The legislation was passed by a margin of 25 votes.

By the time of the vote, eight of ten provinces and one of three territories had already enacted same sex marriage by court rulings and thousands of gay men and lesbian couples had already married across Canada. Meanwhile, Spain also just passed same sex marriage legislation, becoming the third country in the world to uphold equal marriage. On July 20th Canada became the fourth country in the world to recognize the right of lesbians and gay men to marry.

Principal Credits

Directed & Produced by: Nancy Nicol

Editor: Ricardo Acosta

Director of Photography: Robin Bain

Original Music: Alyssa Ryvers

Research Collaborator: Dr. Miriam Smith

Funded by: The Social Science and Humanities Research Council of Canada.