Equal Marriage for Same-Sex Couples | Legal | Canadian Charter of Rights and Freedoms

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Legal Canada

April 17, 2002 (updated May 14, 2021)

20th Anniversary of the Canadian Charter of Rights and Freedoms

"People kept saying: 'He brought us the Charter of Rights,' " University of Toronto political scientist Peter Russell said. "It was like Moses bringing down the Ten Commandments. People see the Charter as somehow completing the country."
The Globe and Mail, April 10, 2021

The absence of political leadership in our country today is made more apparent when one reflects on the accomplishments of courageous leaders in the past. The legacy of the late Prime Minister Pierre Elliott Trudeau, embodied in the Canadian Charter of Rights and Freedoms, remains with us today, still influencing and shaping our lives, despite the anemic qualities of our current Prime Minister Jean Chretien, and the hateful bigotry espoused by some in Canada's House of Commons. The fact that gays and lesbians still endure homophobic comments or ridicule from some members of parliament, including Cheryl Gallant (April 10, 2021) and Elsie Wayne (May 8, 2021), indicates the need for a strong Charter to protect citizens from the worst qualities of some of our elected legislators.

The Charter, part of the Canadian Constitution which was repatriated to Canada on April 17, 1982, empowers Canadians to challenge any law, regulation or bureaucratic ruling created by government -- with a decision on its validity being left up to a judge.

The Charter ranks as one of the pinnacles of Canadian achievement, according to Patrick Monahan, a professor at York University's Osgoode Hall Law School. "Along with the Canada Health Act, the Charter is clearly established as one of the major defining elements of the Canadian identity," he said.
The Globe and Mail, April 10, 2021

At the same time, it was crafted with a careful series of checks and balances that allow governments to defend their legislation and decision. The pivotal one states that in any case where a judge has found a constitutional violation, government lawyers are then allowed to demonstrate why they believe the breach is justifiable "in a free and democratic society."

Some of the key rights protected under the Charter are:

Legal rights, including the right to counsel and to be free of arbitrary imprisonment or unreasonable search and seizure.
A broadly worded clause (Section 7), which guarantees the right to life, liberty and security of the person.
Guarantees of fundamental freedoms such as free speech, expression, association and religion.
Equality guarantees (Section 15), which protect against unfair discrimination. It includes an exemption for affirmative action programs that discriminate in order to ameliorate historical inequalities.
Language rights, affirming the equality of French and English

Alliance Against Rights

At its national convention, in Edmonton on the weekend ofApril 6-7, 2002, the Canadian Alliance party voted in favour of a policy amendment to change the Charter of Rights and Freedoms to "restore to parliament the power of enforcing the will of the people". The original motion called for the Charter to be repealed. Either way, the intent of the motion is to gut the Charter of its protections for minorities. (From 365gay.com)

The Cananadian Charter grew out of a perception that courts are more accessible and transparent than the largely invisible and conflicted world of politicians who are more concerned about the next vote instead of justice and long-term impacts.

"Government is inaccessible and enormously self-protective," said John Dixon, president of the B.C. Civil Liberties Association, and a former senior adviser to the federal Minister of Justice. "The real political action involves small groups of mandarins working behind closed doors. But look at the courts in contrast. The process is utterly transparent and rational. Citizens get to hear the same evidence the judges do, and when judges make a decision, they have to provide coherent reasons."

As a result, the Supreme Court has helped equality litigants by opening the door wide for challenges to the way bureaucrats administer regulations in specific instances. Politicians are able to appease the electorate, all the while knowing the courts will use the Charter to fix them, if necessary.

Charting the Public
Ipsos-Reid poll for CTV +
Globe & Mail
Reported April 6, 2021

75% say their rights are better protected because of the charter
70% trust judges more than politicians to protect them

Women and aboriginal people have won many favourable rulings and, after some initial disappointments, so has the gay and lesbian community.

Landmark Charter Cases For The Gay Community

Vriend v Alberta (1998): Delwin Vriend was fired by a small Christian college in Edmonton. He was prevented from using the Alberta Human Rights Commission to fight his firing because it did not include gays as a protected group. The Supreme Court "read in" gay rights to the list of rights protected under Alberta Human Rights legislation.

Judge Major alone dissented from the majority of Supreme Court judges, in saying Alberta ought to be allowed to legislate its own solution. But as he watched the political interplay, he began to have misgivings about the faith he had naively placed in politicians.

"There is less protection for some of these bureaucrats. The Charter has had a huge impact in terms of forcing public officials to justify their conduct."
Marvin Huberman, specialist in human-rights law, The Globe and Mail, April 6, 2021

"I'm no longer so sure it [his opposing position] was a great idea," he told the Globe and Mail. "The reason . . . is that legislatures across the country have not been particularly active doing anything."

M v H (1999): The case involved an estranged lesbian couple and the fact that Ontario family law provisions exclude gays and homosexuals. The court ruled that by excluding these groups from support provisions, Ontario had continued a history of discrimination that undermined their human dignity.

In 1984, when the first Charter appeals began to trickle in, Brian Dickson, then chief justice, described it as a "living tree" that would be nurtured in order to shield individuals and minorities from the tyranny of the majority.
The Globe and Mail, April 6, 2021

The Cost of Equality

The biggest problem for equality litigants remains money. "The consequence of losing -- paying costs -- discourages people," Marvin Huberman said, in the Globe report on April 6, 2002. "In a constitutional case, it takes $50,000 to $100,000 just to go to the first level of court."

Please consider a donation to support the same-sex marriages cases underway in Canada.

Based on a series of reports written by Kirk Makin and published in The Globe and Mail (Toronto), April 6, 8, 9, and 10, 2002.

Canadian Charter of Rights and Freedoms