Sexual Orientation and the Charter: The
Achievement of Formal Legal Equality
(1985-2005) and Its Limits
Robert Wintemute*
Canada is one of the leading countries in the world in the
strength of its legal protection against sexual orientation
discrimination and in the progress it has made toward securing
equal rights and opportunities for its lesbian, gay, and bisexual
(LGB) minority. The author details the achievement of
formal legal equality through the courts, particularly the
Supreme Court of Canadas, Charter decisions since section 15
(the equality provision) of the Charter first became effective. He
focuses on the topics of criminal law, employment, unmarried
same-sex couples, LGB parenting, and civil marriage for same-
sex couples. By canvassing the landmark cases in these areas,
he examines the Charter dialogue between the courts and
legislatures and the political results of these equality decisions.
The author hypothesizes that future Charter litigation will
concern the limits of formal legal equality. This is so because
once a group that has historically faced pervasive direct
discrimination achieves formal legal equality (based on claims
of sameness), attention
indirect
discrimination (based on claims of difference). As in the case
of Little Sisters, where the Supreme Court was unwilling to
make exceptions to the definition of obscenity for the LGB
minority, sexuality is one area that is likely to remain a focus of
the struggle for substantive equality.
The article concludes with the reminder that once formal
legal equality has been achieved, and proves inadequate, there
is a tendency among equality-seeking groups to dismiss it.
While the author recognizes that formal legal equality on its
own is not enough, he stresses that it has tremendous material
and symbolic value. He hopes that Canadas leadership in this
area of human rights law will inspire the many countries where
formal legal equality for LGB individuals and same-sex couples
remains a distant dream.
immediately shifts
to
cause de ses fortes garanties juridiques contre la
discrimination fonde sur lorientation sexuelle, et cause de
ses avances vers la reconnaissance de lgalit des droits et des
chances pour sa minorit lesbienne, gaie et bisexuelle (LGB), le
Canada fait figure de chef de file dans le monde. Lauteur
retrace lhistoire de latteinte de lgalit formelle par le biais
des tribunaux, et sattarde plus prcisment sur les dcisions de
la Cour suprme sur la Charte des droits et liberts de la
personne depuis lentre en vigueur de son article 15. Il se
concentre sur le droit criminel, lemploi, les couples de mme
sexe non maris, lhomoparentalit et les mariages civils des
couples de mme sexe. Dans son examen des arrts marquants
dans ces domaines, il examine le dialogue entre les tribunaux et
le lgislateur, de mme que limpact politique des dcisions
prtoriales portant sur la notion dgalit.
Lauteur conjecture que la prochaine vague de litiges
portant sur la Charte portera sur les limites de lgalit juridique
formelle. En effet, un groupe qui a historiquement subi une
discrimination directe considrable et qui finit par obtenir
lgalit formelle (sur la base dappels la similarit) tend
alors sen prendre la discrimination indirecte dont il se dit
tre lobjet (sur la base dappels la diffrence). Laffaire
Little Sisters, dans laquelle la Cour suprme na pas voulu
crer, pour la minorit LGB, dexception la dfinition de
lobscnit, montre que la sexualit sera probablement un lieu
dactivit important dans la lutte pour la reconnaissance de
lgalit substantielle.
Larticle se termine par un rappel. Si, une fois atteinte,
lgalit formelle se rvle inadquate, les groupes militant pour
lgalit auront tendance la laisser tomber. Bien que lauteur
reconnaisse que lgalit formelle ne suffise pas en soi, il en
souligne lnorme valeur matrielle et symbolique. Il espre
que lexemple du Canada dans ce domaine des droits de la
personne inspirera les nombreux pays o lgalit formelle des
personnes LGB et les conjoints de mme sexe nest quun rve
loign.
* B.A. (Alberta), LL.B., B.C.L. (McGill), Attorney (New York State), D.Phil. (Oxford); Professor of
Human Rights Law, School of Law, Kings College, University of London, United Kingdom. Thanks
to Don Casswell (Victoria), Lo Veng Bun (Ontario Bar), and Bruce MacDougall (UBC) for their
comments on drafts. This article is a substantially revised version of Equality Principle, Sexual
Orientation Discrimination, and the Canadian Charter in Eleonora Ceccherini, ed., Sexual
Orientation in Canadian Law (Milan: Giuffr Editore, 2004) 81.
McGill Law Journal 2004
Revue de droit de McGill 2004
To be cited as: (2004) 49 McGill L.J. 1143
Mode de rfrence : (2004) 49 R.D. McGill 1143
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 49
1144
Introduction
I. Recognizing Sexual Orientation as an Analogous
Ground Under Section 15(1)
II. Applying Section 15(1) to Specific Forms of
Sexual Orientation Discrimination
A. Equality in the Criminal Law
B. Equal Access to Employment
C. Equality for Unmarried Same-Sex Couples
D. Equality for Actual and Prospective LGB Parents
E. Equal Access to Civil Marriage for Same-Sex Couples
III. Indirect Discrimination Claims: From Formal to
Substantive Legal Equality?
Conclusion
1145
1146
1148
1148
1149
1153
1157
1158
1173
1179
2004]
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Introduction
Canada is one of the leading countries in the world in the strength of its legal
protection against sexual orientation discrimination1 and in the progress it has made
toward securing equal rights and opportunities for its lesbian, gay, and bisexual
(LGB) minority.2 The Canadian Charter of Rights and Freedoms,3 and the Supreme
Court of Canadas Charter decisions, have played an important role in expanding this
legal protection since the equality rights provision of the Charter, section 15, came
into force on 17 April 1985.
Although not limited to such situations, section 15(1) has proven most powerful
when it is wielded against legislation or other rules that blatantly deny formal legal
equality (i.e., involve directusually expressdiscrimination). On 16 April 1985, the
age of consent to same-sex sexual activity4 was twenty-one (versus fourteen for most
male-female sexual activity),5 sexual orientation discrimination in employment and
other areas was legal in twelve out of the then thirteen jurisdictions, and unmarried
same-sex couples were not recognized by any legislation or case law, especially
legislation on joint adoption of children. By invoking section 15 of the Charter, LGB
litigants have been able to challenge some of the hundreds of distinctions in
legislation that existed in 1985 and persuade judges that they are discriminatory and
unjustifiable. Judicial decisions have, in turn, encouraged governments and
legislatures to repeal many of these distinctions voluntarily without further litigation.
In this article, I will consider the progress that has been made since 1985,
especially in the case law of the Supreme Court, and the areas of Canadian law in
which this progress has occurred. In doing so, I will assess the likelihood of the
1 See generally Donald G. Casswell, Lesbians, Gay Men and Canadian Law (Toronto: Emond
Montgomery Publications, 1996) [Casswell, Lesbians, Gay Men]; Kathleen A. Lahey, Are We
persons Yet?: Law and Sexuality in Canada (Toronto: University of Toronto Press, 1999); Bruce
MacDougall, Queer Judgments: Homosexuality, Expression and the Courts in Canada (Toronto:
University of Toronto Press, 2000).
2 Time and space did not permit me to incorporate transgendered issues into this article. I have done
so for England and Wales in Robert Wintemute, Sexual Orientation and Gender Identity in Colin
Harvey, ed., Human Rights in the Community (Oxford: Hart Publishing) [forthcoming in 2005].
3 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
4 See Criminal Code, S.C. 1953-54, c. 51, s. 149 (prohibiting gross indecency between any two
persons, not just two men). Theoretically, this prohibition was sexual-orientation neutral in that it
covered any male-female sexual acts considered grossly indecent. See R. v. Davis (1969), [1970] 3
C.C.C. 260, 69 W.W.R. 638 (Alta. C.A.) (acts of adult male-female fellatio, cunnilingus, and anal
intercourse in the presence of, and photographed by, a 16-year-old girl on LSD were indecent). The
vast majority of prosecutions, however, concerned male-male sexual activity, and the stigmatizing
effect of the prohibition fell exclusively on same-sex sexual activity. See Casswell, Lesbians, Gay
Men, supra note 1 at 108-14.
5 See Marilyn Pilon, Canadas Legal Age of Consent to Sexual Activity (12 April 2001), online:
Library of Parliament: Parliamentary Research Branch
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Supreme Court requiring nationwide equal access to civil marriage in 2005, which
would represent the remarkable achievement of formal legal equality for LGB
individuals and same-sex couples after only twenty years of Charter protection. I will
close by examining issues of substantive legal equality that will remain to be
addressed in the future.6
[Vol. 49
I. Recognizing Sexual Orientation as an Analogous Ground
Under Section 15(1)
The words sexual orientation do not appear in section 15(1) of the Charter,
alongside race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability. On 29 January 1981, a parliamentary committee had rejected
(with twenty-two votes against and two for) an amendment proposed by then MP
Svend Robinson7 that would have added sexual orientation.8 Then Minister of Justice,
Jean Chrtien said: We have explained that there are other grounds of discrimination
that will be defined by the courts. We wanted to have an enumeration of grounds and
we do not think it should be a list that can go on forever.9 Thus, in January 1981, less
than twelve years after the decriminalization of adult same-sex sexual activity,10 and at
a time when sexual orientation appeared in the anti-discrimination legislation of only
one province (Quebec)11 and in no national-level constitution or legislation anywhere
in the world, discrimination against LGB persons was not yet considered sufficiently
serious to warrant express inclusion in section 15(1) as an enumerated ground. In
view of the subsequent developments to be discussed below, there can be no doubt
that if section 15(1) were to be drafted for the first time today, sexual orientation
would be included, as it has been in section 9(3) of the South African Constitution
(1996)12 and article 21(1) of the Charter of Fundamental Rights of the European
Union (2000).13
The decision not to mention sexual orientation in section 15(1) in 1982 was
clearly not intended to prevent subsequent judicial determinations that it is implicitly
6 See also John Fisher, Outlaws or Inlaws?: Successes and Challenges in the Struggle for LGBT
Equality (2004) 49 McGill L.J. 1183.
7 Mr. Robinson was closeted in 1981 but courageously came out as Canadas first openly gay MP in
1988.
8 See Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the
House of Commons on the Constitution of Canada, 1st Sess., 32d Parl., Issue No. 48 at 48:20-21,
48:31-34.
9 Ibid. at 48:33.
10 Criminal Law Amendment Act, 1968-69, S.C. 1968-69, c. 38, s. 7.
11 Charter of Human Rights and Freedoms, R.S.Q. c. C-12, s. 10 (orientation sexuelle added by
S.Q. 1977, c. 6, s. 1).
12 Constitution of the Republic of South Africa 1996, No. 108 of 1996, s. 9(3).
13 EC, Charter of Fundamental Rights of the European Union, [2000] O.J.C. 364/1, art. 21(1). Art.
21(1) is art. II-21(1) of the 18 July 2003 Draft Treaty establishing a Constitution for Europe (Part II,
Title III), online:
1147
R. WINTEMUTE SEXUAL ORIENTATION AND THE CHARTER
2004]
included. Indeed, as early as 1986, the federal Department of Justice stated that it was
of the view that the courts will find that sexual orientation is encompassed by the
guarantees in section 15.14 Lower courts could not easily address this question until
after the Supreme Court decided, in Andrews v. Law Society of British Columbia,15 to
limit the scope of review under section 15(1) by defining discrimination as: (i) a
distinction (or a neutral rule with a similar effect); (ii) that is based on a ground
enumerated in section 15(1) or analogous to the enumerated grounds (like
citizenship, the ground in Andrews); and (iii) which is discriminatory in some
substantive rather than purely formal sense.16
Was sexual orientation an analogous ground (i.e., similar to race, religion, and
sex)? Most lower courts found that it was, but often did not give any reasons for their
conclusion because the respondent government had conceded the point.17 When the
question finally reached the Supreme Court in Egan v. Canada,18 all nine judges held
that sexual orientation is such a ground. However, they gave two different sets of
reasons for this conclusion. Justices Cory and Iacobucci, writing for a group of five
judges, found that homosexuals, whether as individuals or couples, form an
identifiable minority who have suffered and continue to suffer serious social, political
and economic disadvantage.19 They did not refer to the cause of an individuals
sexual orientation and instead focused on the social, political, economic, and legal
status of LGB individuals as a group. Justice La Forest, writing for the other four
judges, observed that: whether or not sexual orientation is based on biological or
14 Canada, Department of Justice, Toward Equality: The Response to the Report of the
Parliamentary Committee on Equality Rights (Ottawa: Communications and Public Affairs,
Department of Justice Canada, 1986) at 13 [Toward Equality].
15 [1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1 [Andrews].
16 I have criticized the use of this third requirement: Robert Wintemute, Discrimination Against
Same-Sex Couples: Sections 15(1) and 1 of the Charter: Egan v. Canada (1995) 74 Can. Bar Rev.
682 at 691-700 [Wintemute, Discrimination Against Same-Sex Couples]. In Law v. Canada
(Minister of Employment and Immigration), [1999] 1 S.C.R. 497, 170 D.L.R. (4th) 1 [Law], the
Supreme Court unanimously adopted an extremely complex version of this third requirement
focusing on whether the distinction based on an enumerated or analogous ground also constitutes a
violation of essential human dignity. The Court has yet to use this third requirement to screen out a
distinction based on sexual orientation, thereby excusing a government from having to justify use of
the distinction under section 1, but has done so for distinctions based on age (Law, ibid.; Gosselin v.
Qubec (A.G.), [2002] 4 S.C.R. 429, 221 D.L.R. (4th) 257; Canadian Foundation for Children, Youth
and the Law v. Canada (A.G.), [2004] 1 S.C.R. 76, 234 D.L.R. (4th) 257), marital status (Nova Scotia
(A.G.) v. Walsh, [2002] 4 S.C.R. 325, 221 D.L.R. (4th) 1 [Walsh]), mental disability (Winko v. British
Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, 175 D.L.R. (4th) 173), and physical
disability (Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703,
186 D.L.R. (4th) 1).
17 See Robert Wintemute, Sexual Orientation and Human Rights: The United States Constitution,
the European Convention, and the Canadian Charter (Oxford: Oxford University Press, 1997) at
163-68.
18 [1995] 2 S.C.R. 513, 124 D.L.R. (4th) 609 [Egan].
19 Ibid. at para. 175.
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physiological factors, which may be a matter of some controversy, it is a deeply
personal characteristic that is either unchangeable or changeable only at unacceptable
personal costs … 20 For these judges, the fact that it is impossible or difficult for
individuals to change their sexual orientation (in the sense of internal feelings or
attractions) was an important factor.21
[Vol. 49
to Specific Forms of Sexual
II. Applying Section 15(1)
Orientation Discrimination
The determination in 1995 that sexual orientation is an analogous ground meant
that, in Egan and subsequent cases, governments would be required to show under
section 1 that all distinctions based on sexual orientation (satisfying the third
requirement that they be discriminatory) are reasonable limits prescribed by law
[which] can be demonstrably justified in a free and democratic society. The courts
would decide on a case-by-case basis whether particular discriminatory distinctions
based on sexual orientation could be justified. If not, they would violate the Charter.
In this Part, I will examine the case law of Canadian courts (mainly the Supreme
Court) on specific forms of sexual orientation discrimination. Instead of discussing
decisions in chronological order, I will follow Kees Waaldijks standard sequences
in legislative recognition of homosexuality: (1) decriminalisation, followed or
sometimes accompanied by the setting of an equal age of consent, after which (2)
anti-discrimination legislation can be introduced, before the process is finished with
(3) legislation recognising same-sex partnership and parenting.22 Although the
standard sequences describe the order in which legislatures in most countries
address these issues, not the order in which litigants have presented these issues to the
Supreme Court, the standard sequences are still useful because they correlate
strongly with the difficulty of each issue for a court applying the Charter. Thus, direct
discrimination in the criminal law is generally easier than direct discrimination against
LGB individuals in employment and other areas, which is in turn easier than direct
discrimination against same-sex couples and parents.
A. Equality in the Criminal Law
The first issue of sexual orientation discrimination raised under a national
constitutional bill of rights, or an international human rights treaty, is often that of a
blanket ban: a law criminalizing all private, consensual sexual activity between men
or women of any age (or specific important forms of such activity). This has been true
20 Ibid. at para. 5.
21 See Wintemute, Discrimination Against Same-Sex Couples, supra note 16 at 687-88.
22 Small Change: How the Road to Same-Sex Marriage Got Paved in the Netherlands in Robert
Wintemute, ed. & Mads Andens, honourary co-ed., Legal Recognition of Same-Sex Partnerships: A
Study of National, European and International Law (Oxford: Hart Publishing, 2001) 437 at 439-40.
R. WINTEMUTE SEXUAL ORIENTATION AND THE CHARTER
2004]
of the European Court of Human Rights,23 the Constitutional Court of South Africa,24
and the Supreme Court of the United States.25 However, because Canada repealed its
blanket ban on same-sex sexual activity in 1969, the question of a constitutional
right of privacy protecting such activity never reached the Supreme Court. Instead,
given that such activity was lawful, the Court in Egan was able to consider sexual
orientation discrimination immediately as an issue of equality under section 15(1)
of the Charter, rather than initially as one of liberty or privacy under section 7.
1149
The unequal age of consent of twenty-one for same-sex sexual activity,
established in 1969, could have been challenged under the Charter. In 1987, however,
an equal age of consent of fourteen was adopted for all sexual activity (other than anal
intercourse, for which it was set at eighteen if the parties are not husband and wife).26
Together, the 1969 decriminalization and the 1987 partial equalization of the age of
consent eliminated the most obvious forms of sexual orientation discrimination from
the Criminal Code, and section 15(1) of the Charter (if not also section 7) would
prevent their reintroduction. There remain, however, rules in the Criminal Code that
are neutral both as drafted and as applied but have the potential to cause indirect
(adverse effects) discrimination based on sexual orientation. The role of the Charter in
prohibiting indirect discrimination, thereby providing more substantive rather than
purely formal legal equality to LGB individuals, will be considered in Part III.
B. Equal Access to Employment
Just as the most serious examples of sexual orientation discrimination in criminal
law were removed by federal legislation, the Charter has not been the main source of
protection against such discrimination in employment (i.e., access to, promotion
within, and retention of jobs by LGB individuals, as opposed to equal access to
employment benefits for their same-sex partners). This is because: (i) section 32 of
the Charter limits its application to the public sector; and (ii) even within the public
sector, victims of discrimination would prefer to make a complaint to a federal or
provincial human rights (anti-discrimination) commission under the applicable human
rights code or act (i.e., anti-discrimination legislation). If the relevant commission
considers the complaint worth pursuing, it will cover the complainants legal fees
through to the Supreme Court if necessary. Complainants challenging the
discrimination under the Charter will generally have to fund their own legal costs.
23 Dudgeon v. U.K. (1981), 4 E.H.R.R. 25.
24 National Coalition for Gay and Lesbian Equality v. Minister of Justice, [1998] 1 B.C.L.R. 5 (S.
Afr. Const. Ct.).
25 Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140 (1986), overruled in Lawrence v. Texas, 539
U.S. 558, 156 L. Ed. 2d 508 (2003). The US Supreme Court became stuck on the criminalization
issue in 1986 and (unlike the Supreme Court of Canada, the European Court of Human Rights, and
the Constitutional Court of South Africa) was not able to move on to other issues for 17 years (apart
from Romer v. Evans, 517 U.S. 620, 134 L. Ed. 2d 855 (1996)).
26 Criminal Code, R.S.C. 1985, c. C-46, s. 159, as am. by S.C. 1987, c. 24, ss. 1-4.
[Vol. 49
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Instead of the Charter, the main source of protection against sexual orientation
discrimination in employment has been amendments adding sexual orientation to the
prohibitions of discrimination in federal, provincial, and territorial anti-discrimination
legislation. Until about 1994, these amendments were probably made voluntarily by
the legislatures of eight of Canadas then thirteen jurisdictions, rather than because of
pressure from appellate court decisions interpreting the Charter. Indeed, this
legislative consensus was a significant factor supporting the conclusion of Justices
Cory and Iacobucci in Egan, in 1995, that sexual orientation is an analogous ground
under the Charter.27 Nonetheless, in 1992, litigation under the Charter began to play a
role in filling the gaps in protection offered by legislation. The two most glaring gaps
were at the federal level: (i) the armed forces had a policy of dismissing all LGB
personnel; and (ii) the Canadian Human Rights Act (CHRA), which prohibits
discrimination in access to jobs in the federal government and federally regulated
private sector industries (e.g., banks and airlines), did not include sexual orientation.
The first gap was filled as the result of a section 15(1) challenge brought by
Michelle Douglas, a lesbian woman who had been dismissed from the armed forces.
On 27 October 1992, the day the trial of her case was to begin, the armed forces
agreed to settle and asked MacKay J. of the Federal Court to sign a judgment granting
declarations that Douglass section 15(1) rights had been violated and that the
Defendants poli[cies] … regarding the service of homosexuals in the Canadian Armed
Forces are contrary to the Charter.28 He did so, and later that day, the Chief of
Defence Staff issued a statement that Canadians, regardless of their sexual
orientation, will now be able to serve their country … without restriction.29
The filling of the second gap was hastened by a section 15(1) challenge brought
by Joshua Birch, a gay man who had been dismissed by the armed forces. In Haig v.
Canada, his lawyer, Philip MacAdam, made the very creative argument that the
omission of sexual orientation from the CHRA (which would otherwise have
permitted Birch to challenge his dismissal) was a violation of section 15(1) as indirect
sexual orientation discrimination (i.e., it was neutral, in also denying heterosexual
individuals any protection, but had a disproportionate effect on LGB individuals, who
were much more likely to need such protection).30 The Ontario Court of Appeal
agreed and ordered that the [CHRA] … be interpreted, applied and administered as
though it contained sexual orientation as a prohibited ground of discrimination.31
The federal government did not appeal the decision, making its effect on the CHRA
27 Supra note 18 at para. 175.
28 Douglas v. R. (1992), [1993] 1 F.C. 264 at para. 15, 98 D.L.R. (4th) 129.
29 Thomas Claridge & Geoffrey York, Forces Agree to End Anti-Gay Policies; Ottawa Pays
Former Officer $100,000 to Settle Rights Suit The Globe and Mail (28 October 1992) A1.
30 The first commentators to propose this argument were probably Arnold Bruner, Sexual
Orientation and Equality Rights in Anne Bayefsky & Mary Eberts, eds., Equality Rights and the
Canadian Charter of Rights and Freedoms (Toronto: Carswell, 1985) 457 at 467-68; James E.
Jefferson, Gay Rights and the Charter (1985) 43:1 U.T. Fac. L. Rev. 70 at 76-77.
31 (1992), 9 O.R. (3d) 495 at 508, 94 D.L.R. (4th) 1 [Haig].
R. WINTEMUTE SEXUAL ORIENTATION AND THE CHARTER
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outside Ontario uncertain, but finally rendered the question moot when Parliament
added sexual orientation to the CHRA in 1996, ten years after the federal government
had first promised to do so.32
1151
After the 1996 federal amendment, four jurisdictions had still not added sexual
orientation to their anti-discrimination legislation: Alberta, Newfoundland, Prince
Edward Island, and the Northwest Territories. Because Haig had not been appealed to
the Supreme Court, the question remained: does section 15(1) of the Charter oblige all
Canadian legislatures to include sexual orientation in their anti-discrimination
legislation, or is a decision to do so voluntary on their part? The Supreme Court
answered the question in Vriend v. Alberta,33 in which gay chemistry teacher Delwin
Vriend was unable to challenge his dismissal by a private religious college in
Edmonton (now known as Kings University College) because of the Alberta
governments stubborn refusal to add sexual orientation to its anti-discrimination
legislation. All eight judges held that Albertas omission (failure to provide legal
protection against public and private sector sexual orientation discrimination) violated
section 15(1), and seven judges agreed that sexual orientation should be read in to
Albertas legislation.
Justices Cory and Iacobucci held that the Alberta legislation drew a distinction
between homosexuals and heterosexuals in that the exclusion of the ground of
sexual orientation … clearly has a disproportionate impact on [gays and lesbians] as
opposed to heterosexuals34 (i.e., there was indirect discrimination). This distinction
was based on the analogous ground of sexual orientation and, whether or not it had a
discriminatory intent, its effects were discriminatory. The exclusion sends a strong
and sinister message, suggesting that discrimination on the ground of sexual
orientation is not as serious or as deserving of condemnation as other forms of
discrimination, which may be tantamount to condoning or even encouraging
discrimination against lesbians and gay men.35
Under section 1, Justices Cory and Iacobucci rejected all of the Alberta
governments justifications for the discriminatory distinction, including the argument
that the Court should defer to the Alberta legislature in making a social policy
decision that required it to mediate between competing interests: religious freedom
and homosexuality. They held that any conflicts with religious freedom can be dealt
with on a case-by-case basis under the Alberta legislations exception provisions.36
Because the case concerned the omission in the legislation, not the employers action,
the fact that the employer was a private fundamentalist Christian college was not an
issue before the Court. Reading in was the appropriate remedy because it is
32 Toward Equality, supra note 14 at 13.
33 [1998] 1 S.C.R. 493, 156 D.L.R. (4th) 385 [Vriend].
34 Ibid. at para. 82.
35 Ibid. at para. 100.
36 Ibid. at paras. 123-25.
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reasonable to assume that, if the legislature had been faced with the choice of having
no anti-discrimination legislation or having legislation that offered protection on the
ground of sexual orientation, the latter option would have been chosen, especially in
view of the size of the excluded group.37
[Vol. 49
Whether or not section 15(1) would permit it, repeal of Albertas anti-
discrimination legislation after Vriend was not politically feasible. And the Alberta
government decided not to override the Supreme Courts decision by invoking section
33 of the Charter to re-enact the legislation without sexual orientation. As of 7
September 2004, however, the Alberta government was still refusing to to amend its
legislation by writing in sexual orientation and making the Supreme Courts remedy
no longer necessary.38 In anticipation of the Vriend decision, or following it, every
province or territory that had not yet done so (other than Alberta) complied with the
case by enacting an express amendment: Newfoundland (1997), Prince Edward Island
(1998), and the Northwest Territories (2002), as well as Nunavut (2003). These
express amendments, combined with the application of Vriend to Alberta, mean that
Canada now has coast-to-coast protection against sexual orientation discrimination
in employment (and other areas such as education, housing, and the provision of
goods and services).39
Vriend was perhaps the first decision of its kind in the world, effectively holding
that the Alberta legislature had not only a negative obligation to refrain from
discriminating in its own laws, but also a positive obligation to act by providing
legal protection against sexual orientation discrimination, especially in the private
sector. The Supreme Court of Canada went well beyond the US Supreme Court,
which held in Romer v. Evans40 that a state constitutional amendment could not
prohibit a state or local legislature from voluntarily adding sexual orientation to its
anti-discrimination legislation. The US Supreme Court did not find any federal
constitutional obligation requiring the state or local legislature to do so, and it is not
37 Ibid. at para. 161.
38 See online: Alberta Human Rights and Citizenship Commission
39 Federal level: Canadian Human Rights Act, R.S.C. 1985, c. H-6, ss. 2, 3(1), as am. by S.C. 1996,
c. 14; British Columbia: Human Rights Code, R.S.B.C. 1996, c. 210, ss. 7-11, 13-14, as am. by S.B.C.
1992, c. 43; Manitoba: Human Rights Code, C.C.S.M. c. H175, s. 9(2)(h); New Brunswick: Human
Rights Act, R.S.N.B. 1973, c. H-11, ss. 3-7, as am. by S.N.B. 1992, c. 30; Newfoundland: Human
Rights Code, R.S.N. 1990, c. H-14, ss. 6-9, 12, 14, as am. by S.N. 1997, c. 18; Northwest Territories:
Human Rights Act, S.N.W.T. 2002, c. 18, s. 5(1) (which also includes gender identity); Nova
Scotia: Human Rights Act, R.S.N.S. 1989, c. 214, s. 5(1)(n), as am. by S.N.S. 1991, c. 12; Ontario:
Human Rights Code, R.S.O. 1990, c. H.19, ss. 1-3, 5-6 (S.O. 1986, c. 64, s. 18); Nunavut: Human
Rights Act, S.N. 2003, c. 12, s. 7(1); Prince Edward Island: Human Rights Act, R.S.P.E.I. 1988, c. H-
12, s. 1(1)(d), as am. by S.P.E.I. 1998, c. 92; Quebec: Charte des droits et liberts de la personne,
R.S.Q. c. C-12, s. 10, as am. by S.Q. 1977, c. 6, s. 1; Saskatchewan: Saskatchewan Human Rights
Code, S.S. 1979, c. S-24.1, ss. 9-19, 25, 47, as am. by S.S. 1993, c. 61; Yukon Territory: Human
Rights Act, R.S.Y. 2002, c. 116, ss. 7, 37 (S.Y. 1987, c. 3).
40 517 U.S. 620 (1996).
R. WINTEMUTE SEXUAL ORIENTATION AND THE CHARTER
2004]
clear that it would find such an obligation even for race discrimination.41 Vriend could
perhaps inspire the European Court of Human Rights, which has yet to consider a
case where a Council of Europe member state has failed to prohibit a particular kind
of discrimination in the private sector. For example, Council Directive 2000/78/EC42
requires European Union member states to prohibit public and private sector sexual
orientation discrimination only in employment and vocational training (which
includes most post-secondary education), but not in primary or secondary education,
housing, or the provision of goods and services.
1153
C. Equality for Unmarried Same-Sex Couples
Discrimination against unmarried same-sex couples, compared with married or
unmarried opposite-sex couples, has given rise to the most litigation under the Charter
since 1985.43 This is perhaps because, as late as 1985, it was still assumed that there
was nothing discriminatory about treating unmarried opposite-sex couples as
spouses (as federal and provincial legislation began to do in the 1970s) and
unmarried same-sex couples as roommates. Indeed, Equality for All, the October
1985 report of the federal Parliamentary Committee on Equality Rights, saw no
contradiction in recommending:
that the [CHRA] be amended to add sexual orientation as a prohibited ground
of discrimination … [and] that a consistent definition of common law
relationships [cohabiting or de facto couples] be incorporated in all federal
laws and policies that recognize such relationships, and … that the definition
require that the parties be of the opposite sex, reside continuously with each
other for at least one year, and represent themselves publicly as husband and
wife.44
Once section 15(1) came into force, unmarried same-sex couples began to invoke
it, as well as federal and provincial anti-discrimination legislation, in challenging their
exclusion from employment, social security, and other benefits made available to
unmarried opposite-sex couples. The first such case to reach the Supreme Court,
Canada (A.G.) v. Mossop,45 was brought by Brian Mossop, a federal government
employee who had been denied bereavement leave when his male partners father
died, but would have received it had his partner been a woman, whether or not they
41 See Reitman v. Mulkey, 387 U.S. 369 at 376-77, 18 L. Ed. 2d 830 (1967).
42 EC, Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for
equal treatment in employment and occupation, [2000] O.J.L. 303/16.
43 The first two section 15(1) cases on sexual orientation discrimination concerned the rights and
obligations of same-sex partners: Anderson v. Luoma (1986), 50 R.F.L. (2d) 127 (B.C.S.C.); Andrews
v. Ontario (Minister of Health) (1988), 64 O.R. (2d) 258, 49 D.L.R. (4th) 584 (H.C.J.). See also
Robert Wintemute, Sexual Orientation Discrimination as Sex Discrimination: Same-Sex Couples
and the Charter in Mossop, Egan and Layland (1994) 39 McGill L.J. 429 at 431-32.
44 Canada, Parliament, Equality for All: Report of the Parliamentary Committee on Equality Rights
(Ottawa: Queens Printer, 1985), Recommendations 10, 17 [emphasis added].
45 [1993] 1 S.C.R. 554, 100 D.L.R. (4th) 658.
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were married. Instead of relying on section 15(1) to challenge either the denial of the
benefit, or the omission of sexual orientation from the CHRA (as in Haig), Mr.
Mossop complained to the Canadian Human Rights Commission that he had suffered
discrimination based on family status, a ground covered by the CHRA. In a four to
three decision, the Court held that, because Parliament had decided not to add sexual
orientation to the CHRA in 1983 when it added family status, homosexual couples
cannot constitute a family for the purposes of … the CHRA.46 Justice La Forest
added: While some may refer to [Mr. Mossops] relationship as a family, I do not
think it has yet reached that status in the ordinary use of language.47
The next six years saw a rapid evolution in the Courts thinking on sexual
orientation discrimination generally, and on discrimination against unmarried same-
sex couples in particular. In Egan, after finding unanimously that sexual orientation is
an analogous ground under section 15(1), the Court had to apply this principle to
the facts of the case: the denial of a spouses allowance (an extra social security
benefit for low-income pensioners) to John Nesbit, the partner since 1948 of James
Egan, when a hypothetical unmarried female partner of Mr. Egan would have
qualified after one year of cohabitation. By five votes to four, the Court held that the
challenged distinction was between same-sex common law couples and opposite-
sex common law couples on the ground of sexual orientation (not between same-
sex non-spouses and opposite-sex spouses on the ground of spousal status) and
constituted discrimination in the definition of spouse contrary to section 15(1). The
Courts final decision, by five votes to four, was that the discrimination could be
justified under section 1. Justice Sopinka who agreed with the dissenters that the
legislation violated section1 15(1), argued that the legislation was addressing itself to
those in greatest need, and that equating same-sex couples with heterosexual
spouses, either married or common law, is still generally regarded as a novel
concept.48
It took only four years for the concept of equal treatment for unmarried same-sex
couples to cease to be novel. In M. v. H.,49 by eight votes to one, the Supreme Court
held that an Ontario statute defining spouse as including unmarried opposite-sex
but not same-sex couples, contained unjustifiable sexual orientation discrimination.
M. and H. were two women who, during a ten-year relationship, had lived together,
purchased property, and started an advertising business. When the relationship broke
down, M. (the financially weaker party) sought financial support from H. and brought
a constitutional challenge to the only legal obstacle she faced: the definition of
spouse (for the purpose of support obligations) in section 29 of Ontarios Family
Law Act (FLA) was a legally married spouse or either of a man and woman who
46 Ibid. at para. 40.
47 Ibid. at para. 46.
48 Supra note 18 at paras. 107-11 [emphasis in original]. See Wintemute, Discrimination Against
Same-Sex Couples, supra note 16 at 700-704.
49 [1999] 2 S.C.R. 3, 171 D.L.R. (4th) 577.
R. WINTEMUTE SEXUAL ORIENTATION AND THE CHARTER
2004]
are not married to each other and have cohabited … continuously for a period of not
less than three years.50
1155
Under section 15(1), Justices Cory and Iacobucci began by observing that the
appeal did not concern whether same-sex couples can marry, or whether [they] must,
for all purposes, be treated in the same manner as unmarried opposite-sex couples.51
They then found that:
[S]ame-sex couples will often form long, lasting, loving and intimate
relationships. The choices they make in the context of those relationships may
give rise to the financial dependence of one partner on the other. … [Yet under
s. 29, they] are denied access to [the FLAs court-enforced system of support]
entirely on the basis of their sexual orientation.52
This distinction was discriminatory because:
It implies that [same-sex couples] are judged to be incapable of forming
intimate relationships of economic interdependence as compared to opposite-
sex couples … [S]uch exclusion perpetuates the disadvantages [they suffer] and
contributes to the erasure of their existence … Therefore … the human dignity
of individuals in same-sex relationships … is violated by the impugned
legislation.53
Under section 1, Justices Cory and Iacobucci found that the opposite-sex
definition of spouse did not advance the Ontario governments two asserted
objectives: improving the economic circumstances of heterosexual women and the
protection of children. Heterosexual men had the right to apply for support, and it
did not matter that gay men and lesbian women might need to do so less frequently
than heterosexual women because
typically more
egalitarian.54 With regard to children, the FLA was
their relationships are
Simultaneously underinclusive and overinclusive … [O]pposite-sex couples are
entitled to apply … irrespective of whether or not they are parents and
regardless of their reproductive capabilities or desires … [And an] increasing
percentage of children are being conceived and raised by lesbian and gay
couples as a result of adoption, surrogacy and donor insemination.55
They distinguished Egan, where equality would probably have meant a slight increase
in government social security expenditure, from M. v. H., where equality would
probably have resulted in a slight reduction.56 Turning to the remedy, Justices Cory
and Iacobucci declared section 29 to be of no force or effect, but suspended the
declaration for six months, because it
50 R.S.O. 1990, c. F. 3.
51 M. v. H., supra note 49 at para. 55.
52 Ibid. at paras. 58-62.
53 Ibid. at paras. 73-74.
54 Ibid. at paras. 109-12.
55 Ibid. at paras. 113-14.
56 Ibid. at para. 130.
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may well affect numerous other statutes that rely upon a similar definition of
the term spouse. The legislature may wish to address the validity of these
statutes in light of the unconstitutionality of s. 29 of the FLA … [I]f left up to
the courts, these issues could only be resolved on a case-by-case basis at great
cost to private litigants and the public purse … [T]he legislature ought to be
given some latitude in order to address these issues in a more comprehensive
fashion.57
Technically, the decision in M. v. H. invalidated only one definition of spouse in
one Ontario statute. The federal and most provincial governments, however, took up
the Courts invitation to conduct comprehensive reviews of all their legislative
definitions of spouse, and thereby avoid the expensive judicial review alluded to by
Justices Cory and Iacobucci. M. v. H. thus caused direct sexual orientation
discrimination against unmarried same-sex couples (compared with unmarried
opposite-sex couples) to collapse like a house of cards. Since 1999, the rights and
obligations of unmarried same-sex and opposite-sex couples have been equalized in
hundreds of federal, provincial, and territorial statutes (including federal immigration
legislation).58 The amended laws grant unmarried same-sex couples equal treatment
as, for example, spouses (British Columbia), de facto spouses (Quebec),
common-law partners (federal level), same-sex partners (Ontario), or adult
interdependent partners (Alberta). Before M. v. H., a few laws had been amended in
British Columbia and the Yukon Territory, and a comprehensive reform in Quebec
was in progress.
Indeed, the comprehensive reform at the federal level (Bill C-23, the
Modernization of Benefits and Obligations Act) extended to unmarried same-sex
partners the specific benefit that John Nesbit had been denied in Egan. Bill C-23 had
its first reading in the House of Commons on 11 February 2000, shortly before James
Egan died, aged 78, on 9 March 2000. The bill had its third and final reading in the
57 Ibid. at para. 147.
58 Federal level: Modernization of Benefits and Obligations Act, S.C. 2000, c. 12; Immigration and
Refugee Protection Act, S.C. 2001, c. 27, s. 12(1); Alberta: Adult Interdependent Relationships Act,
S.A. 2002, c. A-4.5; British Columbia: Family Relations Amendment Act, 1997, S.B.C. 1997, c. 20;
Definition of Spouse Amendment Act, 1999, S.B.C. 1999, c. 29; Definition of Spouse Amendment Act,
2000, S.B.C. 2000, c. 24; Manitoba: An Act to Comply with the Supreme Court of Canada Decision in
M. v. H., S.M. 2001, c. 37 [Act to Comply with M. v. H.]; Charter Compliance Act, S.M. 2002, c. 24;
Common-Law Partners Property and Related Statutes Amendment Act, S.M. 2002, c. 48; New
Brunswick: Family Services Act, S.N.B. 1980, c. F-2.2, s. 112(3), as am. by S.N.B. 2000, c. 59;
Newfoundland: An Act to Amend the Family Law Act, S.N. 2000, c. 29; Same Sex Amendment Act,
S.N. 2001, c. 22; Northwest Territories: Family Law Act, S.N.W.T. 1997, c. 18, s. 1(1), as am. by
S.N.W.T. 2002, c. 6; Nova Scotia: Law Reform (2000) Act, S.N.S. 2000, c. 29; Ontario: Amendments
Because of the Supreme Court of Canada Decision in M. v. H. Act, S.O. 1999, c. 6; Prince Edward
Island: An Act to Amend the Family Law Act, S.P.E.I. 2002, c. 7; Quebec: An Act to amend various
legislative provisions concerning de facto spouses, S.Q. 1999, c. 14; Saskatchewan: Miscellaneous
Statutes (Domestic Relations) Amendment Acts, 2001, S.S. 2001, cc. 50-51; Yukon Territory:
Dependants Relief Act, R.S.Y. 2002, c. 56, s. 1; Family Property and Support Act, R.S.Y. 2002, c. 83,
ss. 1, 30, 31; Estate Administration Act, R.S.Y. 2002, c. 77, ss. 1, 74.
R. WINTEMUTE SEXUAL ORIENTATION AND THE CHARTER
2004]
Senate on 14 June 2000, shortly before John Nesbit died, aged 72, on 23 June 2000.
Although John Nesbit never received a spouses allowance, he and James Egan did
live to witness the final days of the discriminatory law that had excluded them.
1157
D. Equality for Actual and Prospective LGB Parents
Unlike the Constitutional Court of South Africa,59 the Supreme Court of Canada
has yet to hear a case involving a section 15(1) claim of sexual orientation
discrimination against an LGB parent or parents, whether actual or prospective. The
two areas most likely to give rise to such a case are access to joint or second-parent
(versus individual)60 adoption of children and access to assisted reproduction and
birth registration. In the case of joint or second-parent adoption, trial courts in
Ontario61 and Nova Scotia62 have held that section 15(1) does not permit the exclusion
of unmarried same-sex partners when unmarried (or only married) opposite-sex
partners are permitted to adopt. Charter litigation in Alberta led to an amendment
expressly permitting step-parent adoption,63 which was then interpreted as covering
an unmarried same-sex partner.64 These decisions were not appealed. Whether or not
compliance with the Charter was the motivation, British Columbia, Manitoba,
Newfoundland, the Northwest Territories, Ontario, Quebec, and Saskatchewan now
also provide expressly or impliedly for joint or second-parent adoption (or both) by
unmarried same-sex partners.65
59 Suzanne Du Toit & Anna-Marie De Vos v. Minister for Welfare and Population Development
(2002)
(Case no. CCT40/01), online: The Constitutional Court of South Africa
married different-sex partners to adopt children jointly); J. & B. v. Director General, Department of
Home Affairs (28 March 2003) (Case no. CCT46/02), online: The Constitutional Court of South
Africa
of married opposite-sex partners to both be registered as the parents of a child born to the wife after
donor insemination). Unlike in Canada, all decisions of lower courts striking down legislation as
contrary to the South African Constitution must be confirmed by the Constitutional Court.
60 Every province and territory permits unmarried individuals to adopt children and no legislation or
case law anywhere in Canada excludes LGB individuals from this possibility. Compare Frett v.
France (26 February 2002) (Eur. Ct. H.R.), online: Council of Europe
psychanalyse administrative contre les droits subjectifs de lindividu (2004) 49 McGill L.J. 1035.
61 See Re K. & B., 23 O.R. (3d) 679, 125 D.L.R. (4th) 653 (Prov. Div.).
62 See Re Nova Scotia (Birth Registration No. 1999-02-004200) (2001), 194 N.S.R. (2d) 362, (sub
nom. Re M. (S.C.)), 202 D.L.R. (4th) 172 (S.C.).
63 Child Welfare Act, R.S.A. 2000, c. C-12, s. 72(3).
64 See Re A (1999), 253 A.R. 74, 181 D.L.R. (4th) 300 (Q.B.).
65 British Columbia: Adoption Act, R.S.B.C. 1996, c. 5, ss. 29(1) (two adults jointly may apply … to
adopt a child), 29(2) ([o]ne adult may apply … to jointly become a parent of a child with a birth
parent of the child); Manitoba: Adoption Act, C.C.S.M. c. A2, ss. 36, 73(1) (joint adoption by
common-law partners), 88 (adoption by a common-law partner of the parent of a child), as am. by
S.M. 2002, c. 24, s. 1; Newfoundland: Adoption Act, R.S.N. 1999, c. A-2.1, ss. 20(1) (2 adults jointly
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As regards assisted reproduction and birth registration,66 two cases have been
successfully argued under British Columbias anti-discrimination legislation67 (which
prohibits sexual orientation discrimination in services customarily available to the
public), but neither case went to the BC Court of Appeal. At the federal level, the
Assisted Human Reproduction Act declares, as one of the acts principles, that
persons who seek to undergo assisted reproduction procedures must not be
discriminated against, including on the basis of their sexual orientation or marital
status.68 On the basis of the lower court decisions, provincial adoption legislation, the
Assisted Human Reproduction Act, and the South African case law, it seems likely that
the Supreme Court would hold that section 15(1) requires equal access to adoption,
assisted reproduction, and birth registration for LGB individuals and same-sex
partners.
E. Equal Access to Civil Marriage for Same-Sex Couples
The Supreme Courts decision in M. v. H. catalyzed a process of rapid
equalization of the rights of unmarried same-sex and opposite-sex couples in federal,
provincial, and territorial law. Although gaps remain (especially in New Brunswick,
may apply … to adopt a child), 20(2) ([o]ne adult may apply … to jointly become a parent of a child
with a parent of that child), as amended by S.N. 2002, c. 13, s. 10; Northwest Territories: Adoption
Act, S.N.W.T. 1998, c. 9, ss. 1(1) (spouse includes a person … living in a conjugal relationship
outside marriage with another person), 5(1)(b) (adoption by spouses jointly), 5(1)(c) (adoption by a
spouse, where the child is the child of his or her spouse), as amended by S.N.W.T. 2002, c. 6, s. 1;
Ontario: Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 136(1) (spouse which includes an
unmarried different-sex but not same-sex partner), 146(2) (adoption by the spouse of the childs
parent), 146(4) (joint adoption by spouses or by any other individuals that the court may allow,
having regard to the best interests of the child), as am. by S.O. 1999, c. 6, s. 6; Quebec: arts. 546
([a]ny person of full age may, … jointly with another person, adopt a child), 579 (a persons
adoption of a child of his or her [married, civil union or de facto] spouse) C.C.Q.; Saskatchewan:
Adoption Act, S.S. 1998, c. A-5.1, ss. 16(2) (adoption by married adults jointly or any other …
persons that the court may allow, having regard to the best interests of the child), 23(1) (second-parent
adoption by spouse, defined in section 2 as including a person with whom [a] person is cohabiting
as spouses), as amended by S.S. 2001, c. 51, s. 2. See also A.A. v. New Brunswick Department of
Family and Community Services (28 July 2004), No. HR-004-03 (N.B. Labour & Employment Board,
Board of Inquiry), online: Equal Marriage
(the NB Human Rights Acts prohibition of sexual orientation and marital status discrimination in public
services requires that a mothers same-sex partner have access to second-parent adoption and birth
registration).
66 Under Quebecs art. 538.3 C.C.Q., the female married or civil union spouse of a woman giving
birth after donor insemination is automatically a legal parent and is not required to adopt the child
(assuming that the donor is not a party to the womens parental project).
67 See Korn v. Potter (1996), 134 D.L.R. (4th) 437, 22 B.C.L.R. (3d) 163 (S.C.) (refusal of doctor to
inseminate lesbian woman); Gill v. Ministry of Health (24 August 2001), 2001 BCHRT 45, online:
BC Human Rights Tribunal
Agency to accept lesbian mothers female partner as the second parent on a birth registration form).
68 S.C. 2004, c. 2, s. 2(e).
1159
R. WINTEMUTE SEXUAL ORIENTATION AND THE CHARTER
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the Northwest Territories, Nunavut, Prince Edward Island, and the Yukon),69 M. v. H.
will require that the legislature or lower courts fill them eventually. Despite this
equalization process same-sex couples faced three remaining sources of inequality:
(1) in some provinces and territories, the rights and obligations of married couples are
greater than those of unmarried couples, and the Charter permits some of these
distinctions,70 even though they are based on the analogous ground of marital status;71
(2) in some provinces and territories, unmarried same-sex couples can obtain rights
and obligations only after a minimum period of cohabitation and, unlike unmarried
opposite-sex couples, cannot obtain
their
relationships;72 and (3) even if rights and obligations identical to those of married
opposite-sex couples can be obtained through an alternative registration system,73
unmarried same-sex couples are excluded from the term marriage (i.e., the
symbolic, emotional, and other intangible benefits of equal access to the same public
institution and relationship registration system as unmarried opposite-sex couples).
immediately by registering
them
The question of equal access to civil marriage was first raised by an unmarried
same-sex couple in 1974 in Re North & Matheson,74 perhaps the first reported
Canadian decision on sexual orientation discrimination outside the criminal law.
Given that same-sex sexual activity had been decriminalized only five years before, it
is not surprising that the claim failed. A second challenge, this time under the Charter,
was unsuccessful at trial in 1993 and then suspended after Egan made it clear that a
majority of the Supreme Court was not yet ready to find a Charter violation.75 A third
wave of cases challenging access to marriage began with three Charter cases starting
in 2000, a year after M. v. H.; trials were held in Vancouver, Toronto, and Montreal in
2001.76
69 These provinces and territories do not seem to have attempted (after M. v. H., supra note 49) to
amend all of their statutory definitions of spouse that include unmarried opposite-sex partners but
exclude unmarried same-sex partners.
70 See Walsh, supra note 16 (equal division of matrimonial assets after the breakdown of the
relationship can be limited to married opposite-sex partners).
71 See Miron v. Trudel, [1995] 2 S.C.R. 418, 23 O.R. (3d) 160.
72 Manitoba and Nova Scotia now have registration systems for unmarried opposite-sex and same-
sex partners that do not provide rights and obligations identical to those of married opposite-sex
partners. See Act to Comply with M. v. H., supra note 58. In Alberta, the similar status of adult
interdependent partner may be acquired immediately by entering into an adult interdependent
partner agreement. See Adult Interdependent Relationships Act, supra note 58, ss. 3(1), 7.
73 This is possible in Quebec. See An Act instituting civil unions and establishing new rules of
filiation, S.Q. 2002, c. 6 [Act instituting civil unions]. Parties to a civil union are known as conjoints
en union civile or conjoints unis civilement or civil union spouses, not conjoints maris or
poux or married spouses.
74 (1974), 52 D.L.R. (3d) 280, 20 R.F.L. 112 (Man. Co. Ct.).
75 Layland v. Ontario (Minister of Consumer and Commercial Relations) (1993), 14 O.R. (3d) 658,
104 D.L.R. (4th) 214 (Div. Ct.). Greer J. wrote a strong dissent.
76 See Donald G. Casswell, Moving Toward Same-Sex Marriage (2001) 80 Can. Bar Rev. 810;
Bruce MacDougall, The Celebration of Same-Sex Marriage (2000-01) 32 Ottawa L. Rev. 235.
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In the Vancouver case, EGALE Canada Inc. v. Canada (A.G.), Pitfield J. of the
Supreme Court of British Columbia held, on 2 October 2001, that the exclusion of
same-sex couples from civil marriage is direct sexual orientation discrimination
contrary to section 15(1), but that it can be justified under section 1, because the one
factor in respect of which there cannot be similarity is the biological reality that
opposite-sex couples may, as between themselves, propagate the species and thereby
perpetuate humankind. Same-sex couples cannot.77
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In the Toronto case, Halpern v. Canada (A.G.),78 three judges of the Ontario
Superior Court of Justice (Divisional Court) held unanimously, on 12 July 2002, that
the violation of section 15(1) cannot be justified under section 1. LaForme J. (with
whom the other two judges agreed) rejected Pitfield J.s view in EGALE that the
purpose of marriage is (unassisted) procreation:
[I]t was only recentlywhen same-sex-couples began to advance claims for
equal recognition of their conjugal relationshipsthat some courts began to
infer that procreation was an essential component to marriage. …
[I]t is well-established in annulment cases that a marriage is valid and not
voidable despite the fact that one spouse refuses to have sexual intercourse, or
is infertile, or insists on using contraceptives when having sexual intercourse.
…
[In] cases where the husband is unable to consummate the marriage due to
impotence resulting from advanced age … Canadian courts have consistently
ruled that the marriage is understood to be for the purpose of companionship
and is therefore valid, and not voidable. …
[I]t could reasonably be argued … that [the objective of procreation] appears to
be a mere pretext used to rationalize discrimination against lesbians and gays.79
He then considered the question of proportionality between the end (promoting
unassisted procreation) and the means (excluding same-sex couples from civil
marriage):
There is simply no evidentiary basis to support the proposition that granting
same-sex couples the freedom to marry would either diminish the number of
children conceived by heterosexual couples, or reduce the quality of care with
which heterosexual couples raise their children.
Same-sex couples experience, and raise children as a result of a variety of
reproductive and parenting arrangements, none of which is unique to same-sex
partners. …
… I find that, the restriction against same-sex marriage fails the rational
connection test because it is both: overinclusive in that it allows non-
77 [2001] 11 W.W.R. 685 at para. 205, 95 B.C.L.R. (3d) 122 [EGALE (S.C.)].
78 (2002), 60 O.R. (3d) 321, 215 D.L.R. (4th) 223 (Sup. Ct. (Div. Ct.)) [Halpern (Sup. Ct.)].
79 Ibid. at paras. 238-42.
2004]
R. WINTEMUTE SEXUAL ORIENTATION AND THE CHARTER
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procreative heterosexuals to marry; and underinclusive because it denies same-
sex parents and intended parents the right to marry.80
Balancing the exclusions deleterious effects against its benefits, LaForme J.
concluded:
The restriction against same-sex marriage is an offence to the dignity of
lesbians and gays because it limits the range of relationship options available to
them. The result is they are denied the autonomy to choose whether they wish
to marry. This in turn conveys the ominous message that they are unworthy of
marriage. For those same-sex couples who do wish to marry, the impugned
restriction represents a rejection of their personal aspirations and the denial of
their dreams.81
With regard to the remedy, LaForme J. would have reformulated the common law
rule82 so that it would define civil marriage as the lawful union of two persons to the
exclusion of all others and would have ordered the immediate issuance of marriage
licences to the plaintiff same-sex couples. The majority remedy was, however, that of
Blair J. (with the tacit support of LaForme J.): the common law rule would be
reformulated, and same-sex couples in Ontario would be entitled to marriage licences
in two years (on 12 July 2004), if the federal government had not acted by then.
In the Montreal case, Hendricks c. Qubec (P.G.),83 Lemelin J. of the Superior
Court of Quebec (District of Montreal) also found an unjustifiable violation of section
15(1) on 6 September 2002. She rejected the argument that there was no
discrimination because existing Quebec and federal legislation provided sufficient
rights and duties to same-sex couples. Quebec legislation allows same-sex couples to
contract a civil union, which is identical to a civil marriage for all purposes of
provincial law.84 Moreover, unmarried same-sex and opposite-sex couples in Quebec
are generally treated under Canadian federal law, after one year of cohabitation, in the
same way as married different-sex couples.85 Despite this separate but almost equal
situation, Lemelin J. concluded that there is a difference in treatment that is
discriminatory: These laws correct certain inequities and confirm social acceptance
of a new reality. It remains the case that Mr. Hendricks and Mr. LeBoeuf do not have
the right to marry each other … They are thus deprived of the choice of the type of
union in which they wish to live their union … 86 She noted that, under Quebec law,
they have the choice of being de facto spouses or civil union spouses but cannot
80 Ibid. at paras. 248-50.
81 Ibid. at para. 261.
82 Parliament has never exercised its constitutional power to incorporate this rule into a federal
statute for the 9 provinces and 3 territories with common law systems.
83 [2002] R.J.Q. 2506 (S.C.) [Hendricks].
84 See Act instituting civil unions, supra note 73.
85 See Modernization of Benefits and Obligations Act, supra note 58.
86 Hendricks, supra note 83 at para. 133 (unofficial translation).
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be married spouses.87 Opposite-sex couples in Quebec have all three options. She
then quoted Linden J.A. of the Federal Court of Appeal:
[Vol. 49
One cannot avoid the conclusion that offering benefits to gay and lesbian
partners under a different scheme from heterosexual partners is a version of
the separate but equal doctrine. That appalling doctrine must not be
resuscitated in Canada four decades after its much heralded death in the United
States.88
With regard to the remedy, Lemelin J. declared invalid the federal statutory definition
of marriage for Quebec: Marriage requires the free and enlightened consent of a man
and a woman to be the spouse of the other.89 However, she suspended the effect of
the declaration until 6 September 2004 and declined to repair the constitutional defect
by reading out a man and a woman and reading in two persons.90
The three cases then moved to the Courts of Appeal of British Columbia, Ontario,
and Quebec. The first court to rule was the BC Court of Appeal on 1 May 2003 in
EGALE (C.A.).91 The court reversed the decision of Pitfield J., and became the first
non-final appellate court in the world to order the issuance of civil marriage licences
to same-sex couples, after a suspension period to allow for the adjustment of
legislation (and subject to possible reversal by the Supreme Court of Canada).
In the lead judgment, Prowse J.A. preferred the reasoning of LaForme J. in
Halpern (Sup. Ct.). Even if promoting unassisted procreation were a pressing and
substantial objective, the means used to achieve it (excluding same-sex couples from
civil marriage) were disproportionate. In particular, she disagreed with Pitfield J.s
view that permitting same-sex marriages [would represent] a significant threat to the
institution of marriage, and agreed with the comments of Justices Cory and
Iacobucci (in the non-marriage context of Egan) that they failed to see how
according same-sex couples the benefits flowing to opposite-sex couples in any way
inhibits, dissuades or impedes the formation of heterosexual unions.92
As to the appropriate remedy for the unjustifiable violation of section
15(1),Prowse J.A. again agreed with LaForme J. in Halpern (Sup. Ct.):
If [the absence of] same-sex marriage is recognized as being a contravention of
the equality rights of same-sex couples, … the obvious remedy is that chosen
by Mr. Justice LaForme in Halpernthe redefinition of marriage to include
same-sex couples. In my view, this is the only road to true equality for same-
87 See e.g. art. 15 C.C.Q. (consent [to medical care] is given by his or her married, civil union or
de facto spouse … ).
88 Supra note 83 at para. 134, quoting from Egan, supra note 18 (dissenting opinion) [emphasis in
original].
89 Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4, s. 5 [Harmonization Act].
90 Hendricks, supra note 83 at paras. 200-209.
91 EGALE Canada Inc. v. Canada (A.G.) (2003), 225 D.L.R. (4th) 472, [2003] 7 W.W.R. 22
(B.C.C.A.) [EGALE (C.A.)].
92 Ibid. at para. 127 (quoting Egan, supra note 18 at para. 211).
2004]
R. WINTEMUTE SEXUAL ORIENTATION AND THE CHARTER
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sex couples. Any other form of recognition of same-sex relationships, including
the parallel institution of [registered domestic partnerships], falls short of true
equality. This Court should not be asked to grant a remedy which makes same-
sex couples almost equal, or to leave it to governments to choose amongst
less-than-equal solutions.
If [the federal] Parliament concludes that this result is unacceptable, it
continues to have options available to it. It could, for example, abolish marriage
altogether.93 … In the alternative, it is open to the [federal] government to use
its override power under s. 33 of the Charter.94
She therefore granted the only possible remedy: a declaration that the common law
bar against same-sex marriage is of no force or effect, and a reformulation of the
common-law definition of marriage to mean the lawful union of two persons to the
exclusion of all others. She agreed, however, with Blair J. in Halpern (Sup. Ct.) that
a suspension of the remedy until 12 July 2004 (the Ontario deadline at the time) was
necessary, not to give Parliament time to consider alternative remedies (such as
registered domestic partnerships or civil unions), but:
solely to give the federal and provincial governments time to review and revise
legislation to bring it into accord with this decision. This period of suspension
… is necessary … to avoid confusion and uncertainty in the application of the
law to same-sex marriages. The appellants acknowledge that there will be
consequential amendments required to both federal and provincial legislation to
give effect to this decision.95
The second appellate court to rule was the Ontario Court of Appeal on 10 June
2003 in Halpern (C.A.).96 As in EGALE (C.A.), the three judges were unanimous in
finding an unjustifiable violation of section 15(1) and issued a single judgment By
the Court. The court began its section 15(1) analysis by rejecting the federal
governments argument that marriage, as an institution, does not produce a
distinction between opposite-sex and same-sex couples. The word marriage is a
descriptor of a unique opposite-sex bond that is common across different times,
cultures and religions as a virtually universal norm.97 The court responded as
follows:
[W]hether a formal distinction is part of the definition itself or derives from
some other source does not change the fact that a distinction has been made. If
marriage were defined as a union between one man and one woman of the
Protestant faith, surely the definition would be drawing a formal distinction
93 Prowse J.A. correctly assumed that Parliament would probably not wish to do so and would
prefer to include a small excluded group (same-sex couples). Justices Cory and Iacobucci made the
same assumption about Albertas anti-discrimination legislation in Vriend, supra note 33 (and see
accompanying text).
94 Ibid. at paras. 156-57.
95 EGALE (C.A.), supra note 91 at para. 161.
96 Halpern v. Canada (Attorney General) (2003), 65 O.R. (3rd) 161, 225 D.L.R. (4th) 529 (C.A.)
[Halpern (C.A.)].
97 Ibid. at para. 66.
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between Protestants and all other persons. … Similarly, if marriage were
defined as a union between two white persons, there would be a distinction
between white persons and all other racial groups. In this respect, an analogy
can be made to the anti-miscegenation laws that were declared unconstitutional
in Loving v. Virginia, 388 U.S. 1 (1967) because they distinguished on racial
grounds.98
In finding that this distinction is discriminatory, the court observed that recent
federal and provincial legislation equalizing the rights and obligations of unmarried
opposite-sex and same-sex couples did not remove the three remaining sources of
inequality mentioned above:
… In many instances, benefits and obligations do not attach until the same-sex
couple has been cohabiting for a specified period of time. Conversely, married
couples have instant access to all benefits and obligations.
Additionally, not all benefits and obligations have been extended to cohabiting
couples [such as those in Walsh]. …
[Section] 15(1) guarantees more than equal access to economic benefits. One
must also consider whether persons and groups have been excluded from
fundamental societal institutions. …
In this case, same-sex couples are excluded from a fundamental societal
institutionmarriage. The societal significance of marriage, and
the
corresponding [non-economic] benefits that are available only to married
persons, cannot be overlooked. … Exclusion perpetuates the view that same-sex
relationships are less worthy of recognition than opposite-sex relationships. In
doing so, it offends the dignity of persons in same-sex relationships.99
Under section 1, the court rejected the promotion of unassisted procreation
justification, pointing out that many opposite-sex couples choose not to or are unable
to have children. The court also dismissed as speculative any threat to the institution
of marriage. Having found an unjustifiable violation of section 15(1), the court then
agreed with LaForme J. in Halpern (Sup. Ct.) and the BC Court of Appeal in EGALE
(C.A.) that the only possible remedy was the reformulation of the common-law
definition of marriage. Despite the federal governments request for a two-year
suspension, the court also agreed with LaForme J. [they disagreed with BC Court of
Appeal on this point] that there was no reason to delay the granting of this remedy
because it would not require the volume of legislative reform that followed in M. v.
H.100 The court therefore made the following historic order on 10 June 2003, and
98 Ibid. at para. 70.
99 Halpern (C.A.), supra note 96 at paras. 104-107.
100 Ibid. at para. 153. This is not necessarily true at the provincial level. Lo Veng Bun has pointed
out to me that at least 40 of the 67 Ontario statutes amended after M. v. H., supra note 58, require
legislative amendment or judicial repair: they exclude a married same-sex partner both from the
category spouse (defined as a person of the opposite sex) and from the category same-sex partner
(defined as a person living in a conjugal relationship outside marriage). See e.g. Election Act,
R.S.O. 1990, c. E-6, s. 1.
R. WINTEMUTE SEXUAL ORIENTATION AND THE CHARTER
2004]
became the first non-final appellate court in the world to order the immediate issuance
of civil marriage licences to same-sex couples (despite possible reversal by the
Supreme Court of Canada):
1165
To remedy the infringement of these constitutional rights, we:
(1) declare the existing common-law definition of marriage to be invalid to the
extent that it refers to one man and one woman;
(2) reformulate the common-law definition of marriage as the voluntary union
for life of two persons to the exclusion of all others;
(3) order the declaration of invalidity in (1) and the reformulated definition in
(2) to have immediate effect;
(4) order the Clerk of the City of Toronto to issue marriage licenses to the
[applicant same-sex] Couples; and
(5) order the Registrar General of the Province of Ontario to accept for
registration the marriage certificates of Kevin Bourassa and Joe Varnell and of
Elaine and Anne Vautour [who were married in a religious ceremony at the
Metropolitan Community Church in Toronto on 14 January 2001].101
Because the judgment had immediate effect, one of the applicant same-sex couples,
Michael Leshner and Michael Stark, obtained a marriage licence from the City of
Toronto and were married that day.102 By 13 June, Toronto City Hall had issued
eighty-nine marriage licences to same-sex couples. Unlike in the Netherlands or
Belgium, Ontarios Marriage Act has no residence or nationality requirements,103
which meant that any same-sex couple from anywhere in the world had become able
to marry in Ontario (even if recognition at home might be unlikely).104
From a legal perspective, the Ontario Court of Appeals ordering the immediate
issuance of marriage licences to same-sex couples is questionable. A much more
orderly remedy would have been that of the BC Court of Appeal in EGALE on 1 May
2003, and the Supreme Judicial Court of Massachusetts (to be discussed below),
which allows time for legislation and forms to be adjusted, and for same-sex couples
to plan their weddings, rather than stampede to the citys clerk office. Moreover,
given the national dimension of the question (one of federal rather than Ontario law),
and the significance of the change from the legal status quo, the Ontario Court of
Appeal ought to have suspended the effect of its judgment at least until the expiry of
the appeal period in EGALE (30 June 2003), if not in Halpern (9 September 2003).105
This would have allowed the federal government time to seek a stay of the judgment
101 Ibid. at para. 156.
102 See Tracy Tyler & Tracy Huffman, Gay Men Get Married After Appeal Court Ruling Toronto
Star (11 June 2003) A4.
103 R.S.O. 1990, c. M-3, s. 5(1).
104 See John Deverell, Gays Flocking Down Aisle in Toronto: Same-Sex Couples Arrive from
U.S. Toronto Star (14 June 2003) E1.
105 See Supreme Court Act, R.S.C. 1985, c. S-26, s. 58.
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from the Supreme Court, thereby giving the Supreme Court the final say as to whether
the first same-sex civil marriages in Canada should go ahead (or be retroactively
validated) before the Supreme Court ruled on any appeal, or only after any appeal.
[Vol. 49
From a political perspective, the Ontario Court of Appeals order was brilliant.
One of the main reasons why many heterosexual individuals oppose equal access to
civil marriage for same-sex couples is very simply fear of the unknown. As has
been seen in the Netherlands (2001) and Belgium (2003),106 and now in Canada, the
fear of many opponents dissipates quickly once married same-sex couples become a
reality, and it is clear that their marriages do not harm anyone. The Ontario Court of
Appeal appears to have decided that the best way to ensure a permanent end to the
discriminatory exclusion of same-sex couples from civil marriage in Canada, as
required by the Charter, was for marriages to begin immediately. The Court could be
said to have let the genie out of the bottle, created a fait accompli, or pushed a
nervous heterosexual majority into the swimming pool of marriage equality.
On balance, I would have to congratulate the Ontario Court of Appeal for its
courage and for taking the lead in North America. Both the courts and the legislatures
in Canada and the US were reluctant to press the button and make marriage equality
happen, fearing that the foundations of civilization might explode. Someone had to
be the first. Given the legal and political culture in Canada and the US with regard to
controversial human rights issues, an appellate court was in a better position to do so
than a legislature. Without the Ontario Court of Appeals remedy, and the ensuing
same-sex marriages, it is possible that the federal government would have appealed,
no such marriages would have been celebrated in Canada for two or three years, and
the Massachusetts court would not have been inspired to follow the example set by
Canada (as we will see below).
Perhaps taken by surprise by the Ontario Court of Appeals remedy, and reluctant
to continue fighting a change that seemed inevitable, the federal government did not
attempt to seek a stay from the Supreme Court. After seven days studying the BC and
Ontario judgments, then Prime Minister Jean Chrtien abruptly changed course107 in
an historic Statement of the Prime Minister on Same-Sex Unions. On 17 June 2003,
106 Netherlands, Act of 21 December 2000 amending Book 1 of the Civil Code, concerning the
opening up of marriage for persons of the same sex (Act on the Opening Up of Marriage), Staatsblad
2001, nr. 9; Belgium, Law of 13 February 2003 opening up marriage to persons of the same sex and
modifying certain provisions of the Civil Code, Moniteur belge, 28 February 2003, Edition 3, 9880.
107 In response to the decisions of the BC, Ontario, and Quebec trial courts, on 12 November 2002,
then federal Minister of Justice, Martin Cauchon, published a discussion paper and referred the
question of what measures should be taken to recognize same-sex unions to the House of
Commons Standing Committee on Justice and Human Rights, which held a series of public hearings
on the options discussed in the paper. See Department of Justice, News Release, Minister Refers
Question of Marriage and Same Sex Unions to Standing Committee (12 November 2002), online:
Department of Justice
Justice, Marriage and Legal Recognition of Same-Sex Unions: A Discussion Paper (November
2002), online: Department of Justice
R. WINTEMUTE SEXUAL ORIENTATION AND THE CHARTER
2004]
he announced that the federal government would not appeal either appellate court
judgment108 (or pursue its appeal of the Quebec trial court decision), and would
instead introduce legislation complying with the opinions of ten of eleven judges in
the three cases (and with recommendations of the Law Commission of Canada and
the Canadian Human Rights Commission).109
1167
The federal governments decision to end all appeals caused the BC Court of
Appeal to lift the suspension of its judgment in EGALE on 8 July 2003:
[A]ny consequential amendments to the law which may be required as a result
of this Courts decision do not require the suspension of remedy which this
Court originally imposed. … [A]ny further delay in implementing the remedies
will result in an unequal application of [federal] law as between Ontario and
British Columbia … [T]he declaratory relief and the reformulation of the
common-law definition of marriage as the lawful union of two persons to the
exclusion of all others will take immediate effect. 110
Antony Porcino and Tom Graff were married in Vancouver within an hour of the
decision.111
Similarly, the Quebec Court of Appeal ruled on 19 March 2004 that, because of
the pending Supreme Court reference (to be discussed below), the intervener, Ligue
Catholique pour les droits de lhomme no longer had a sufficient interest to appeal the
Hendricks trial court decision and that its appeal had become moot.112 The court
therefore said nothing about the merits of the section 15(1) issue. With the consent of
the federal Attorney General, the court granted the cross-appeal, ended the suspension
of Lemelin J.s judgment (giving it effect from 19 March 2004 instead of 6 September
2004), and ordered that Michael Hendricks and Ren LeBoeuf be allowed to marry
twenty days after publication of the notice required by article 368 of the Civil Code.113
108 On 9 October 2003 (Case No. 29879), the Supreme Court dismissed attempts to appeal by two
Halpern interveners: the Association for Marriage and the Family in Ontario and the Interfaith
Coalition on Marriage and Family.
109 See Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close
Personal Adult Relationships (Ottawa: Minister of Public Works and Government Services, 2001),
recommendation 33, online: Law Commission of Canada
Committee on Justice and Human Rights study on marriage and the legal recognition of same-sex
unions, online: Canadian Human Rights Commission
110 (2003), 228 D.L.R. (4th) 416 at paras. 6-8, 15 B.C.L.R. (4th) 226 (C.A.).
111 See Gwendolyn Richards, B.C. Joins Ontario in Embracing Same-Sex Marriage The Globe
and Mail (9 July 2003) A1.
112 Ligue Catholique pour les droits de lhomme v. Hendricks (2004), J.E. 2004-724 (Que. C.A.)
[Ligue Catholique].
113 The Court of Appeal (like Lemelin J.) declined to repair the constitutional defect in the
challenged federal statute (Harmonization Act, supra note 89), by reading out a man and a woman
and reading in two persons (Ligue Catholique, ibid. at para. 55). The BC and Ontario Courts of
Appeal made the corresponding changes to the federal common-law definition of marriage. As Lo
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After the judgment, Quebec Minister of Justice and Attorney General, Marc
Bellemare, issued a press release announcing that same-sex couples would henceforth
be able to marry in Quebec and that courthouse staff were ready to process their
applications.114 With special permission, Hendricks and LeBoeuf married on 1 April
2004, the third anniversary of the worlds first same-sex civil marriages in the
Netherlands.115
[Vol. 49
As of 19 March 2004, exclusion from civil marriage had been ended for all same-
sex couples living in British Columbia, Ontario, and Quebec, which together have
seventy-five per cent of Canadas thirty-two million people. The impact of the
proposed federal bill announced by Prime Minister Jean Chrtien on 17 June 2003,
and published that same day, has therefore been reduced to extending the decisions of
the British Columbia, Ontario, and Quebec Courts of Appeal in Halpern, EGALE, and
Hendricks to the other twenty-five per cent of Canadas population: those living in the
other seven provinces and the three territories where no Charter litigation is pending,
including my home province of Alberta (which would resist same-sex marriage as
strongly as Texas or Utah but for federal jurisdiction over capacity to marry).116
The Proposal for an Act respecting certain aspects of legal capacity for marriage
for civil purposes (Proposal), which omits necessary consequential amendments to
other federal legislation, reads as follows:
1. Marriage, for civil purposes, is the lawful union of two persons to the
exclusion of all others.
2. Nothing in this Act affects the freedom of officials of religious groups to
refuse to perform marriages that are not in accordance with their religious
beliefs.117
Veng Bun pointed out to me, it is arguable that the Quebec Court of Appeal inadvertently removed
any civil law obstacle in Quebec to valid simultaneous polygamy (a marriage of three or more
persons). But see Criminal Code, s. 290 (prohibiting simultaneous marriage with more than one
person), and the astonishing s. 293 (prohibiting practis[ing] … any form of polygamy, or … any kind
of conjugal union with more than one person at the same time, whether or not it is by law recognized
as a binding form of marriage, and requiring no proof of hav[ing] or intend[ing] to have sexual
intercourse). Groups of three or more adults living together in conjugal unions outside of marriage,
beware!
114 See Cabinet du ministre de la Justice et Procureur gnral, Communiqu, Mariages entre
conjoints de mme sexe autoriss au Qubec (19 March 2004), online : Gouvernement du Qubec
115 See Brian Daly, Quebecs First Same-Sex Marriage Legally Unites Partners of 31 Years The
Globe and Mail (2 April 2004) A7.
116 As a result of the Marriage Amendment Act, 2000, S.A. 2000, c. 3, ss. 4-5, the Marriage Act,
R.S.A. 2000, c. M-5, purports in subsection 1(c) to define marriage as a marriage between a man
and a woman and in section 2 to override sections 2 and 7 to 15 of the Charter, but is almost
certainly ultra vires the Alberta legislature.
117 Canada, Department of Justice, Fact Sheet: Reference to the Supreme Court of Canada on Civil
Marriage and the Legal Recognition of Same-Sex Unions (January 2004), online: Department of
R. WINTEMUTE SEXUAL ORIENTATION AND THE CHARTER
2004]
The government of Prime Minister Jean Chrtien announced on 17 July 2003 that it
had referred to the Supreme Court three questions about the Proposal, while the
government of Prime Minister Paul Martin announced on 28 January 2004 that it had
added a fourth question. Together these are:118
1169
1. Is the annexed Proposal … within the exclusive legislative authority of the
Parliament of Canada? If not, in what particular or particulars, and to what
extent?
2. If the answer to question 1 is yes, is section 1 of the proposal, which extends
capacity to marry to persons of the same sex, consistent with the … Charter … ?
If not, in what particular or particulars, and to what extent?
3. Does the freedom of religion guaranteed by paragraph 2(a) of the … Charter
… protect religious officials from being compelled to perform a marriage
between two persons of the same sex that is contrary to their religious
beliefs?119
4. Is the opposite-sex requirement for marriage for civil purposes, as
established by the common law and set out for Qubec in s. 5 of the Federal
LawCivil Law Harmonization Act, No. 1 [S.C. 2001, c. 6] consistent with the
… Charter … ? If not, in what particular or particulars and to what extent?120
In the Matter of a Reference by the Governor in Council concerning the Proposal for
an Act respecting certain aspects of legal capacity for marriage for civil purposes
(No. 29866) is scheduled to be heard by the Supreme Court on 6-8 October 2004. If
the Court answers Yes, Yes, Yes, No (the opposite-sex requirement is completely
invalid), the federal government plans to introduce the proposed bill in the House of
Commons in 2005.
It seems very likely that a majority of the Supreme Court will: (i) agree with the
opinion of ten of eleven judges in the lower courts that the opposite-sex requirement
for marriage for civil purposes is inconsistent with the Charter (the five judges of the
Quebec Court of Appeal expressed no opinion on this question); (ii) find that the
proposed bill removing the requirement respects both the equality rights of same-sex
Justice Canada
the Supreme Court].
118 See Canada, Department of Justice, News Release, Government of Canada Reaffirms Its
Position on Supreme Court Reference (28 January 2004), online: Department of Justice
Sheet: Background: Civil Marriage and the Legal Recognition of Same-sex Unions (29 March
2004), online: Department of Justice
The only advantage of the fourth question is that it will permit the Supreme Court to make it clear that
the Charter requires (and does not merely permit) equal access to civil marriage. Same-sex couples
around the world will be able to cite the Courts reasoning on this question.
119 See art. 367 C.C.Q. None of the lower courts suggested that the Charter would require equal
access for same-sex couples to religious marriage. See EGALE (C.A.), supra note 91 at paras. 133-34,
181; Halpern (C.A.), supra note 96 at para. 138; Halpern (Sup. Ct.), supra note 78 at paras. 7-11,
124, 263; Hendricks, supra note 83 at paras. 28-30, 164-71.
120 Reference to the Supreme Court, supra note 117.
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couples under section 15(1) and freedom of religion under section 2(a); and (iii) find
that the bill is within the exclusive authority of Parliament under subsection 91(26) of
the Constitution Act, 1867 because it is confined to capacity to marry.121 These
probable answers to the reference questions will be a logical extension of M. v. H.,
and will be consistent with recent decisions of the Supreme Judicial Court of
Massachusetts (the first final appellate court in the world to order the issuance of civil
marriage licences to same-sex couples, after a 180-day suspension period to allow for
the adjustment of legislation),122 and potential future decision(s) of one or both of
South Africas highest courts (the Supreme Court of Appeal and the Constitutional
Court).123
121 The formalities of marriage, and most other aspects of family law (except for divorce), fall under
the jurisdiction of the provincial and territorial legislatures under the Constitution Act, 1867 (U.K.),
30 & 31 Vict., c. 3, ss. 92(12)-(13).
122 See Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass., 18 November 2003)
(The Massachusetts constitution requires equal access to civil marriage for same-sex couples); Re the
Opinions of the Justices to the Senate, 802 N.E.2d 605 (Mass., 3 February 2004) (a separate law
establishing civil unions for same-sex couples only is not sufficient). The Supreme Judicial Court
has the final say on interpretation of the Massachusetts constitution. Its decisions ending the exclusion
of same-sex couples from civil marriage, effective 17 May 2004, can be overruled only by an
amendment to the Massachusetts constitution or an amendment to the US constitution. On 29 March
2004, the Massachusetts legislature gave preliminary approval to a proposed amendment to the states
constitution (only the union of one man and one woman shall be valid or recognized as a marriage …
Two persons of the same sex shall have the right to form a civil union … ), but even if the legislature
approves the proposed amendment a second time in 2005, it seems unlikely that a majority of voters
would support it (with the possible effect of divorcing thousands of married same-sex couples) in a
referendum in November 2006. The proposed amendment to the US constitution ([m]arriage in the
United States shall consist only of the union of a man and a woman) is unlikely to be adopted by the
federal Congress or ratified by the necessary 38 states, because capacity to marry has always been
regulated by state law. Thus, the decisions of the Supreme Judicial Court of Massachusetts are likely
to stand and represent the beginning of slow, turbulent, 20 to 40-year process of ending the exclusion
of same-sex couples from civil marriage in the US. See Perez v. Lippold, 198 P.2d 17, 32 Cal. 2d 711
(Cal., 1948) (first judicial invalidation of a law prohibiting different-race marriage, with the dissent
citing South Africa as a positive model of racial segregation in marriage); Loving v. Virginia, 388 U.S.
1, 18 L. Ed. 2d 1010 (1967) (invalidating similar laws that remained in 16 states). The striking
differences between Canada and the US on this issue are: (i) that it would almost be politically
unthinkable for the federal government to invoke section 33 of the Charter, or propose a permanent
amendment to the Charter, to override the Supreme Courts judgment in the same-sex marriage
reference; and (ii) that, by late 2005, same-sex couples should be able to marry in all ten provinces
and three territories (and have their marriages recognized in federal law), whereas Massachusetts
might still be the only one of 50 US states in which same-sex couples are able to marry with the
authority of the highest court or the legislature (and the federal Defense of Marriage Act, Pub. L. No.
104-199, 110 Stat. 2419 (1996) will preclude recognition of their marriages in federal law, including
immigration law). See also Australia, Marriage Amendment Act 2004 (Cth.) (adding man-woman
definition).
123 Because the exclusion of same-sex partners from civil marriage is the result of a common-law
rule, rather than a statute, a constitutional challenge must first be heard by the Supreme Court of
Appeal, which will have a chance to reformulate the rule so that it conforms to the South African
1171
R. WINTEMUTE SEXUAL ORIENTATION AND THE CHARTER
2004]
I would argue that, after answering the reference questions, the Supreme Court of
Canada should provide the following definitive Charter remedy to same-sex couples
throughout Canada: (i) a declaration reformulating the federal common-law definition
of civil marriage as the voluntary union of two persons to the exclusion of all
others, with immediate effect; and (ii) with respect to the equivalent definition for
Quebec,124 a declaration reading out the words a man and a woman and reading in
the words two persons, with immediate effect. Although there may be no precedent
for providing a remedy in the course of answering reference questions,125 the Supreme
Court would be entirely justified in doing so in the unusual circumstances that led to
this reference, especially given that the fourth reference question has made the case in
substance an appeal of EGALE, Halpern, and Hendricks (even though in form it
remains a reference). This impressive procedural lateral arabesque has allowed the
federal government to appeal the main issue, switch to the same side of the issue as
the plaintiff same-sex couples, and leave counter-arguments to interveners.
The federal government implied on 17 June 2003 that it had understood from the
lower courts decisions what the Charter required, that the work of the courts was
over, and that the federal government and Parliament would take over and ensure a
speedy end to the ongoing violations of the equality rights of same-sex couples across
Canada. It has, instead, ended up providing a good example of how not to conduct a
Charter dialogue with the Supreme Court. The Chrtien government did so first by
referring the proposed bill to the Supreme Court instead of introducing it in the House
of Commons. This means that the reference will take as long as an appeal would have
taken, but would seem to deprive the Supreme Court of the opportunity of providing a
remedy for the Charter violation.
constitution. See Marie Fourie & Cecilia Bonthuys v. Minister of Home Affairs, [2003] 10 B.C.L.R.
1092 (S. Afr. Const. Ct.), which was heard instead by the Supreme Court of Appeal on 23 August
2004 as Case no. 232/02. South African case law is such that reformulation by one or both courts is
highly probable. See Constitutional Court decisions, supra note 59, as well as National Coalition for
Gay & Lesbian Equality v. Minister of Home Affairs (1999), [2000] 1 B.C.L.R. 39 (S. Afr. Const. Ct.)
(same-sex partners entitled to same immigration rights as married opposite-sex partners); Satchwell v.
President of Republic of South Africa (2003), [2004] 1 B.C.L.R. 1 (S. Afr. Const. Ct.) (same-sex
partners of judges entitled to same employment benefits as married opposite-sex partners). See also
Du Plessis v. Road Accident Fund, [2003] 11 B.C.L.R. 1220 (S. Afr. S.C.A.) (common-law
dependants action extended to cover surviving partner in a same-sex permanent life relationship
similar in other respects to a marriage).
124 See Harmonization Act, supra note 89, s. 5.
125 The Supreme Court Act, supra note 105, s. 53(4), does not expressly preclude a remedy, stating
only that the Court shall certify to the Governor in Council, for his information, its opinion on each
[referred] question, with the reasons for each answer, and the opinion shall be pronounced in like
manner as in the case of a judgment on an appeal to the Court … [emphasis added]. Thanks to Lo
Veng Bun for suggesting a possible precedent: Re Manitoba Language Rights, [1985] 1 S.C.R. 721,
[1985] 2 S.C.R. 347 (Court declares unilingual Manitoba laws invalid but orders period of temporary
validity to allow for time for translation into French and re-enactment).
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Then, by adding the fourth question and removing any substantive distinction
between the reference and an appeal, the Martin government succeeded in delaying
the hearing of the reference by nearly six months (from 15 April 2004 to 6 October
2004). The net result is that the proposed bill might not be introduced in the House of
Commons before 17 June 2005, the second anniversary of Prime Minister Chrtiens
historic announcement. I would argue that same-sex couples in Alberta, Manitoba,
New Brunswick, Newfoundland, the Northwest Territories, Nova Scotia, Nunavut,
Prince Edward Island, Saskatchewan should not have to wait a single day beyond the
Supreme Courts judgment in the reference to be granted equality. Nor should they
have to start their own Charter cases in their provincial or territorial courts (which
could take five years to reach the Supreme Court), just in case (even after the
reference judgment) either the House of Commons or the Senate does not pass the
proposed bill.126
If the Supreme Court provides a remedy, the proposed bill will not be necessary,
except to codify the Supreme Courts remedy in federal legislation. But if the bill goes
ahead, its chances were greatly improved by the results of the 28 June 2004 federal
election, in which it was one of the main issues. The Conservative Party stated its
belief that Parliament, not unelected judges, should have the final say on contentious
social issues like the definition of marriage, and promised to withdraw the current
marriage reference … and hold a free vote in Parliament.127 Although party leader,
Stephen Harper, would not say whether he would invoke section 33 of the Charter to
protect the one woman, one man definition of marriage from review by the
Supreme Court, a Conservative MP was quoted as saying: Well the heck with the
courts, eh. You know, one of these days we in this country are going to stand up and
say, the politicians make the laws and the courts do not. The courts interpret that law.
And if we dont like that interpretation theres the Notwithstanding clause in the
Charter … 128 If the results of the election are treated as a referendum on this aspect
of the Conservative platform, 56.7 per cent of voters supported either the Liberal
Party (36.7 per cent) or a party that included unequivocal support for marriage
equality in its platform: the New Democratic Party (15.7 per cent) or the Green Party
(4.3 per cent). Coincidentally, a poll conducted between 16 and 21 June 2004 found
that 57 per cent of respondents (including 77 per cent of eighteen to twenty-nine-year-
olds) agree that gays and lesbians should be allowed to get married.129
126 See the Senates 21 January 1991 defeat of Bill C-43 on abortion (Debates of Senate, 34th Parl.,
No. 134). As of 7 September 2004, Charter cases were pending in Manitoba and Nova Scotia, and
had succeeded in the Yukon: See Dunbar v. Yukon (14 July 2004), 2004 YKSC 54, online: EGALE
Canada
127 Conservative Party of Canada, Platform 2004 at 14, online: Conservative Party of Canada
128 Randy White Interview, May 19, 2004 (25 June 2004), online: Liberal Party of Canada
129 Canadians Reject Ban on Religious Symbols or Clothes in Schools: Majority Sees Racial or
Religious Background of Party Leaders as Irrelevant (1 July 2004) online: Centre for Research and
R. WINTEMUTE SEXUAL ORIENTATION AND THE CHARTER
2004]
III. Indirect Discrimination Claims: From Formal to Substantive
1173
Legal Equality?
From 1985 (when sexual orientation discrimination was prohibited only in
Quebec and equality for same-sex couples was not seen as an issue) to 1995 (when
the Supreme Court held in Egan that sexual orientation is an analogous ground
under section 15(1) but that discrimination against unmarried same-sex couples can
be justified under section 1) to 2005 (likely the year of the Supreme Court decision
holding that the Charter requires equal access to civil marriage for same-sex couples),
the Charter-assisted achievement of formal legal equality by LGB individuals and
same-sex couples in Canada has been extraordinarily quick. A general principle has
been established that direct sexual orientation discrimination in legislation or other
governmental action is contrary to section 15(1), whether the discrimination relates to
the criminal law, access to employment, the rights of unmarried same-sex couples, the
rights of actual or prospective LGB parents, or (subject to confirmation by the
Supreme Court) access to civil marriage.
Apart from tidying up remaining pockets of clearly unjustifiable direct sexual
orientation discrimination in the public sector, future Charter litigation will concern
the limits of this formal legal equality and the section 15(1) general principle. For
example, are there exceptional situations in which the Charter (especially freedom of
religion in subsection 2(a)) permits direct sexual orientation discrimination? Does the
Charter prohibit indirect sexual orientation discrimination (neutral rules that
disproportionately affect LGB individuals or same-sex couples)?
Because I have discussed potential conflicts between freedom from direct sexual
orientation discrimination and freedom of religion at length elsewhere,130 I will
instead focus on claims of indirect discrimination.
Once a group that has historically faced pervasive direct discrimination achieves
formal legal equality (the elimination of such discrimination in legislation and public
sector rules and policies, and legal protection against such discrimination in the public
and private sectors, although specific decisions to discriminate by individual public
and private sector actors may continue), attention shifts to indirect discrimination. In
other words, there is a shift from claims that we are the same in all relevant respects
(and therefore entitled to formal legal equality) to we are different in some relevant
respects that require accommodation (in order to achieve substantive equality). Given
the paucity (at the Supreme Court level) of successful Charter claims for indirect
discrimination violating section 15(1),131 LGB individuals and same-sex couples can
Information
summary.pdf> at 4 (Environics poll for the Centre for Research and Information on Canada).
to enforce section 159 at least once since M.(C.). See Lucas v. Toronto Police Service Board (2001),
54 O.R. (3d) 715, 148 O.A.C. 215 (Sup. Ct. (Div. Ct.)).
135 In Ligue Catholique, supra note 112 at paras. 27-28, the Quebec Court of Appeal suggested that
EGALE (C.A.) and Halpern (C.A.) are binding on all Canadian courts, because the federal
government failed to appeal. If this were true, M.(C.) should have been binding in Roy. Until the
Supreme Court clearly rules otherwise, it is unlikely that one province or territorys courts will
consider themselves bound by judgments of another province or territorys courts on a question of
federal law. The Alberta Court of Appeal did not consider the Ontario Court of Appeals decision in
Haig, supra note 31, as binding in Vriend v. Alberta ((1996) 184 A.R. 351, 141 D.L.R. (4th) 44), even
though the main issue (application of section 15(1) of the federal Charter to the omission of sexual
orientation from anti-discrimination legislation) was the same.
136 [2000] 2 S.C.R. 1120, 193 D.L.R. (4th) 193 [Little Sisters]. See also Brenda Cossman,
Disciplining the Unruly: Sexual Outlaws, Little Sisters and the Legacy of Butler (2003) 36 U.B.C.
L. Rev. 77.
137 [1992] 1 S.C.R. 452, 89 D.L.R. (4th) 449 [Butler].
138 Ibid. at para. 136.
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cannot be freely transferred from heterosexual erotica to gay and lesbian
erotica, … [which] plays an important role in providing a positive self-image to
gays and lesbians, who may feel isolated and rejected in the heterosexual
mainstream, … [which] in the context of gay and lesbian culture is a core value,
… [and which] plays a different role in a gay and lesbian community than it
does in a heterosexual community … [T]he Butler approach based … on
heterosexual norms is oblivious to this fact. Gays and lesbians are defined by
their sexuality and are therefore disproportionately vulnerable to sexual
censorship.139
All nine judges rejected the argument. Justice Ian Binnie held that:
[G]ay and lesbian culture as such does not constitute a general exemption from
the Butler test … Portrayal of a dominatrix engaged in the non-violent
degradation of an ostensibly willing sex slave is no less dehumanizing if the
victim happens to be of the same sex, and no less (and no more) harmful in its
reassurance to the viewer that the victim finds such conduct both normal and
pleasurable. Parliaments concern was with behavioural changes in the voyeur
that are potentially harmful. There is no reason to restrict that concern to the
heterosexual community.140
He added that the Butler test is gender neutral and not solely concerned with violence
by men against women. Thus, he dismissed the arguments of the intervener, Womens
Legal Education and Action Fund (the original proponent of the Butler test) that
sado-masochism performs an emancipatory role in gay and lesbian culture and should
therefore be judged by a different standard from that applicable to heterosexual
culture, and that gender discrimination is not an issue in same-sex erotica.141
Justice Iacobucci agreed with Justice Binnie, writing that Butler should apply to all
obscenity, regardless of the sexual orientation of its audience.142
Although the Court found that neither the Butler test, nor the Customs Tariffs
ban on the importation of obscene publications, contained any direct or indirect sexual
orientation discrimination,143 the application of the tariff by Canada Customs to Little
Sisters Book and Art Emporium (a lesbian and gay bookstore in Vancouver) did
constitute direct sexual orientation discrimination (category (b), above). The trial
judge found that up to 75 per cent of the material from time to time detained and
examined for obscenity [by Customs] was directed to homosexual audiences.144
Justice Binnie concluded that the appellants suffered differential treatment [based on
sexual orientation] when compared to importers of heterosexually explicit material,
that it was discriminatory because it could be interpreted as demeaning gay and
139 Supra note 136 at para. 53.
140 Ibid. at para. 60.
141 Ibid. at paras. 63-64.
142 Ibid. at para. 199.
143 Justice Iacobucci, joined by Justices Arbour and LeBel, would have struck down this ban as
containing procedural defects contrary to subsection 2(b) (ibid. at paras. 214-53).
144 Ibid. at para. 113.
R. WINTEMUTE SEXUAL ORIENTATION AND THE CHARTER
2004]
lesbian values, and that it was not prescribed by law and could not, therefore, be
justified under section 1.145 By way of remedy,146 he declared that:
1177
[t]he rights of the appellants under s. 2(b) and s. 15(1) of the Charter have been
infringed [because] [t]hey have been targeted as importers of obscene materials
despite the absence of any evidence to suggest that gay and lesbian erotica is
more likely to be obscene than heterosexual erotica, or that the appellants are
likely offenders in this regard.147
Indirect discrimination claims by LGB individuals are similar to those by
religious minorities. The only possible remedies are usually invalidation of the neutral
rule for the benefit of all, or exemption of the minority from the rule.148 In Little
Sisters, it was unlikely that the Supreme Court would abolish the violence or
degrading or dehumanizing branches of the Butler test (for the benefit of all
interested in pornography) because of their allegedly disproportionate effect on LGB
individuals, or that the Court would create an exemption from these branches for
depictions of same-sex sexual activity. A minoritys entitlement to formal legal
equality must be well-established legally, and accepted by the majority socially,
before indirect discrimination claims will be taken seriously. Otherwise, some
members of the majority are likely to complain about special rights if the minority
is exempted from a neutral rule. The Christian majority might understand why the
Sikh minority is entitled to an exemption from rules on hardhats at construction
sites,149 but the heterosexual majority is currently unlikely to accept that the LGB
minority should be exempted from rules relating to pornography or sexual activity
that the heterosexual majority must obey.
Despite judicial resistance, LGB individuals will continue to make indirect
discrimination claims, but will probably seek the remedy of invalidation of the neutral
rule, rather than exemption from it. With regard to the criminal law on sexual activity,
this will mean attempting to expand the sexual freedom of all, either because a
particular aspect of sexual freedom enjoys independent protection under section 7 (or
subsection 2(b))150 of the Charter, or because the neutral rule restricting this freedom
145 Ibid. at paras. 116, 118, 123, 141.
146 By a six to three vote, the Court rejected the appellants attempt to have the provision of the
Customs Tariff that is used to harass them struck down. With hindsight, the appellants should perhaps
have claimed compensatory or even punitive damages, which might be the only effective way to deter
administrative officials from enforcing non-discriminatory laws in a discriminatory manner. The
harassment of the appellants by Canada Customs has continued. See Little Sisters Book & Art
Emporium v. Canada (Commissioner of Customs & Revenue) (2003), 105 C.R.R. (2d) 119
(B.C.S.C.).
147 Little Sisters, supra note 136 at para. 154.
148 See Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 S.C.R. 536, 23 D.L.R.
(4th) 321 (Seventh-Day Adventist employee who was obliged to work on Saturdays).
149 See Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561, 23 D.L.R. (4th) 481.
150 See R. v. Glad Day Bookshops Inc. (2004), 183 C.C.C. (3d) 449 (Ont. Sup. Ct.) (a judgment
upholding a subsection 2(b) freedom of expression claim by an LGB bookstore without using the
words lesbian or gay or same-sex).
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has a disproportionate effect on LGB individuals contrary to section 15(1). The case
of a police raid on Goliaths Sauna & Texas Lounge (Goliaths) in Calgary in
December 2002, currently before a criminal trial court, could reach the Supreme
Court. The raid resulted in the prosecution of one owner, six employees, and thirteen
patrons under section 210 of the Criminal Code, which prohibits keeping, being found
in, or permitting a place to be used as a common bawdy-house, defined in
subsection 197(1) as a place that is kept for the practice of acts of indecency.151
Those contesting the charges will argue that consensual, non-commercial sexual
activity between adult men in a place that is private (except for consenting witnesses)
is not indecent, and that acts of indecency must be interpreted (as was
obscenity in Butler) in a way that respects the section 7 liberty and section 15(1)
equality rights of gay and bisexual men.152 For many such men, anonymous sexual
encounters in bathhouses are an important part of their sexual culture, even if this is
not the case for most of the heterosexual majority.
Indirect discrimination claims, like those that can be advanced in the case of
Goliaths, will be challenging for both judicial doctrine and solidarity within the LGB
community. While some LGB individuals would see such claims as part of
accommodation of a shared group difference and a necessary part of substantive
equality, other LGB individuals would characterize such claims as being about
aspects of sexual freedom that do not interest them (e.g., bathhouses, semi-public
sexual activity, sado-masochism) but do interest many heterosexual individuals.
Expert witnesses might be required in order to show the disproportionate interest of
LGB individuals in a particular sexual activity, which other expert witnesses might
contest.
Outside the criminal law, other indirect discrimination claims (which might be
less controversial for courts and for LGB solidarity) could relate to neutral rules
regarding the recognition of unmarried couples (e.g., a requirement of a joint
residence or bank account), or access to assisted reproduction. Same-sex couples
could argue that, because of common differences in the way their relationships are
structured or the biological fact that they can only have children (with genetic input
from one partner) through assisted reproduction, it is more difficult for them to
comply with these rules than it is for opposite-sex couples.
151 See Patrick Brefhour, Calgary Bathhouse Raid Angers Gays The Globe and Mail (18
December 2002) A11. Bawdy Work: Getting the Criminal Code Out of Your Sex Life, online:
xtra.ca
Capital Xtra! on Canadas laws on sexual activity).
152 Terence Semenuk J. ruled that males masturbating in front of other males at a gay premise may
constitute indecent acts within the meaning of [s. 197(1)]. See Amy Steele, Tub Wonks to Be
Indecent Xtra! West (10 June 2004), online: xtra.ca
1179
R. WINTEMUTE SEXUAL ORIENTATION AND THE CHARTER
2004]
An example of accommodation of such a difference is found in the Immigration
and Refugee Protection Regulations,153 which exempt a same-sex or opposite-sex
common-law partner from the one-year cohabitation requirement if, due to
persecution or any form of penal control, they have been unable to cohabit with the
person sponsoring them for immigration to Canada.154 In M. v. H., the Supreme Court
stressed that neither opposite-sex couples nor same-sex couples are required to fit
precisely the traditional marital model to demonstrate that the relationship is
conjugal, and that the approach to determining whether a relationship is conjugal
must be flexible.155
An example of failure to accommodate, currently before the Ontario Court of
Appeal, is the Processing and Distribution of Semen for Assisted Conception
Regulations, which (combined with other rules or policies on eligible donors and non-
donor insemination) permit a man who would otherwise be banned from donating
semen to a clinic (because he has engaged in sexual activity with another man since
1977 or is aged forty or more) nonetheless to make a donation, but only if the woman
who will receive it is his spouse or sexual partner, and not merely his friend.156 This
requirement is more likely to be satisfied by a heterosexual woman who is having
difficulty conceiving with her spouse or sexual partner, than by a lesbian woman who
wishes to combine the advantages of clinic insemination and those of a known donor.
Conclusion
Since 17 April 1985, progress towards achieving formal legal equality for LGB
individuals and same-sex couples in Canada has been dramatic. In only two decades,
Canada has moved from an age of consent of twenty-one for same-sex sexual activity,
and only one jurisdiction out of thirteen having an anti-discrimination law, to coast-
to-coast anti-discrimination legislation, legislation on hate crimes and hate
speech,157 comprehensive equal treatment for unmarried same-sex and opposite-sex
couples (including in relation to adoption) at the federal level and in the majority of
153 Canada S.O.R./96-254.
154 Immigration and Refugee Protection Regulations, S.O.R./2004-227, s. 1(2). See also Nicole
LaViolette, Coming Out to Canada: The Immigration of Same-Sex Couples Under the Immigration
and Refugee Protection Act (2004) 49 McGill L.J. XXX.
155 Supra note 49 at paras. 59-60.
156 See Jane Doe v. Canada (A.G.) (2003), 68 O.R. (3d) 9 (Sup. Ct.).
157 On hate crimes, see Criminal Code, supra note 26, s. 718.2(a), as am. by S.C. 1995, c. 22, s.
6: evidence that the offence was motivated by bias, prejudice or hate based on … sexual orientation
… shall be deemed to be aggravating circumstances causing a sentence to be increased. On hate
speech, see Criminal Code, ss. 318-319, as am. by S.C. 2004, c. 14, Svend Robinson MPs Private
Members Bill C-250, An Act to Amend the Criminal Code, 2d Sess., 37th Parl., 2002, which makes it
a criminal offence by communicating statements, other than in private conversation, [to] wilfully
promot[e] hatred against any [section of the public distinguished by … sexual orientation], subject to
a new defence when in good faith, the person expressed or attempted to establish by an argument an
opinion on a religious subject or an opinion based on a belief in a religious text.
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provinces and territories, equal access to civil marriage in at least three provinces and
one territory, and the prospect of a Supreme Court decision requiring equal access to
civil marriage across the country. Although the Charter cannot take sole credit for this
progress, it has served to crystallize as constitutional principle the anti-discrimination
rules adopted voluntarily by legislatures in the late 1980s and early 1990s, which
resulted from political campaigns made possible by increasing social acceptance of
LGB individuals. Charter litigation has permitted LGB individuals and same-sex
couples to focus this new constitutional principle on remaining areas of formal legal
inequality and gradually to compel their removal by courts and legislatures.
Once formal legal equality has been achieved, and proves inadequate, there is a
tendency among equality-seeking groups to dismiss it as trivial, even insulting. Of
course, formal legal equality on its own is not enough. Neutral rules that exclude LGB
individuals and same-sex couples disproportionately must be challenged. And full
social equality will require education and a substantial change in attitudes among the
heterosexual majority. Its attainment might be defined as the day when two men or
two women will be able to kiss and hold hands in public anywhere in Canada, without
fearing a violent reaction from passersby.158
But formal legal equality on its own has tremendous material and symbolic value,
which only those who have been denied it for many years can fully appreciate.
Recalling my closeted secondary school years (1968-1974) when the sight of the
word homosexual in print sent a chill down my spine,159 and having devoted a
substantial part of my adult life to the struggle to achieve formal legal equality, I know
that it is far from trivial. As an expatriate Canadian, I am extremely proud of Canadas
leadership in this area of human rights law, and hope that it will inspire the majority of
US states and the vast majority of the 191 member states of the United Nations, where
formal legal equality for LGB individuals and same-sex couples remains a distant
dream.
158 See Gay Kiss Too Hot for Canadian School (18 April 2004), online: 365gay
students told to remove female-female kiss from play); Lesbian Kiss Lands Canadian Bar in
Trouble (4 May 2004), online: 365 gay
tells female-female couple to stop kissing or leave).
159 See Robert Wintemute, Lesbian and Gay Inequality 2000: The Potential of the Human Rights
Act 1998 and the Need for an Equality Act 2002 [2000] Eur. H.R. L. Rev. 603 at 604.
