April 17, 2012
Today marks the 30th anniversary of the Canadian Charter of Rights and Freedoms. w00t!
As a gay man I credit the Charter for the advancement of a culture and society that protects and includes gay and lesbian people.
While sexual orientation is not specifically mentioned in the Charter successive rulings prohibited discrimination based on sexual orientation and expanded gay and lesbian equality to areas such as marriage and pensions. Gay and lesbian people have also made gains in areas such as employment, health benefits, housing, hate crimes, and adoption.
It makes me grateful to live in Canada but I am mindful that even here we have politicians and governments who would love to push through a bunch of crazy homophobic laws. But they can’t. We have have a constitutionally embedded Charter.
In a 2002 University of Toronto law professor Brenda Cossman wrote an article in which she evaluated the legal implications of the Charter for the gay and lesbian community.
The Charter has been an effective tool in challenging the denial
of formal legal equality of lesbians and gay men. Laws that discriminate against
lesbian and gay individuals and relationships have been struck down as
unconstitutional, and legislatures have been forced to amend their laws to
extend formal legal equality. In so doing, there has been a shift in the politics
of democracy. The Charter critics—right and left—are correct to point out that
courts have done what almost no legislature was prepared to do. The
legalization of politics has delivered formal equality for lesbians and gay men
In early 2011 Saskatchewan’s right-of-centre government told provincial marriage commissioners that if they refused to conduct same-sex marriages they would have to resign or be fired even if doing so conflicted with their religious conviction.
“In my view, from a litigation point of view, it’s a done issue,” Saskatchewan’s Justice Minister, Don Morgan told me. “There’s certainly an option to appeal to the Supreme Court, but when you got a well-written judgment from five of the leading jurists in the province, you would want to accept that.”
The decision came a week after Saskatchewan’s highest court unanimously ruled that proposed legislation giving marriage commissioners the right to refuse to marry couples for religious reasons was unconstitutional.
The Government of Alberta, in contrast, has gone to great lengths to prevent gay and lesbian equality from taking root there. IF it wasn’t for the charter Alberta would be just like one of the 29 US States where residents can be fired on the basis of sexual orientation.
In 1991 Delwin Vriend was fired from his position at a private Christian university because he was gay. He was unable to file a human rights complaint as sexual orientation was not included as a prohibited ground of discrimination in Alberta’s Human Rights legislation.
He sued the commission and the provincial government and the case was ultimately heard by the Supreme Court who ruled that provincial government could not exclude gay and lesbian people from human rights legislation and that such exclusion violated the Charter.
We still have a long way to go with regards to gay and lesbian equality but I’m grateful for the significant gains we have made thus far and I believe we have the Charter to thank.