Conservative Alberta Premier Ralph Klein proposed putting the question to the public at large via a national referendum, In 1999, the Supreme Court of Canada ruled in M. 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.
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. Most laws which affect couples are within provincial rather than federal jurisdiction.
Given the composition of the House of Commons at the time, such a measure would have been very unlikely to pass. As a result, rights varied somewhat from province to province. 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.
This was the third vote supporting same-sex marriage taken by three Parliaments under three Prime Ministers in three different years, as shown below.
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.
Same-sex marriage was originally recognized by law as a result of cases in which courts in eight out of ten of Canada's 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 (Re Same-Sex Marriage).