The Charter and gay rights

It is hard to imagine gay rights activists being so successful in getting their agenda implemented, were it not for the complicity of sympathetic courts invoking the Charter of Rights and Freedoms in various rulings to advance special rights for homosexuals in piecemeal fashion over the course of several years. Between 1995 and 1999, the Supreme Court of Canada granted new rights to homosexuals on three separate occasions.

In 2003, the courts of appeal in British Columbia and Ontario granted “marriage” rights to same-sex couples on the grounds that the traditional definition of marriage violated their Charter Rights; in December 2004, the SCOC responded to a set of reference questions from the federal government in regards to same-sex “marriage,” which provided cover for Paul Martins Liberals to introduce same-sex “marriage” legislation. This was even though the court refused to answer the question of whether not extending such rights to same-sex couples would violate the Charter of Rights.

In 1982, when Canada patriated its Constitution, it added the Canadian Charter of Rights and Freedoms. Section 15 of the Charter guarantees equality “before and under the law” and the “right to the equal protection and equal benefit of the law without discrimination, based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” It makes no mention of sexual orientation. When the Charter was drafted in 1981, the justice committee discussed inclusion of sexual orientation among the list of protected classes and explicitly (by a vote of 22-2) rejected the notion. Advocates of gay rights argue the Charter says the document is designed to permit the addition of new grounds (such as sexual orientation) by the courts.

In 1995, in Egan v. Canada, the first in the ‘“trilogy of equal rights cases,” the SCOC ruled that sexual orientation should be “read in” to Section 15 of the Charter. Egan and John Norris Nesbit argued that the opposite-sex definition of spouse under the Old Age Security Act improperly discriminated against homosexual couples, as they fought for the right of pension benefits. The SCOC unanimously dismissed the appeal of a Federal Court of Appeal decision that ruled Egan’s and Nesbit’s Charter rights had been violated. Gérard V. La Forest wrote that homosexuality was akin to race, gender and religion, because “it is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs.”

In 1998, in Vriend v. Alberta, the SCOC said that Section 15 of the Charter (the non-discrimination clause) required that Alberta human rights law should be read to include special protections based on sexual orientation. Delwin Vriend was a homosexual employee of King’s College, a private religious college in Edmonton, who was fired because of his sexual orientation. He claimed he had no basis for a discrimination suit because the Alberta Individual Rights Protection Act does not include sexual orientation among its list of protected classes.

The Alberta Court of Queen’s Bench agreed with Vriend that the college violated his Charter rights of equal protection, but the Alberta Court of Appeal did not. Vriend took his case to the Supreme Court where, in an 8-1 decision, it ruled that Alberta’s human rights laws were remiss in not including sexual orientation as a protected class and that the act should be “interpreted” to include sexual orientation, even if the Alberta government refused to amend it to include special protection for homosexuals.

In 1999, in Attorney-General of Ontario v. M and H, the Supreme Court of Canada ruled that same-sex couples should have the same rights and obligations as opposite-sex common-law couples when it found that the Ontario Family Law Act’s definition of “spouse” unconstitutionally discriminated against homosexuals. In the case of M and H, it was the obligation of a lesbian to pay alimony after the unidentified couple split up. Rather than read in any changes to the Act, the SCOC struck down Section 29 of the Act altogether; Section 29 defined “spouse” as opposite-sex partners.

The Supreme Court had now applied special protection under Section 15 of the Charter to sexual orientation in three separate cases. It was only a matter of time until the test was applied to the definition of marriage. In 2003, the Courts of Appeal in both B.C. and Ontario said the traditional (opposite-sex) definition of marriage unfairly discriminated against homosexual couples. They struck down the federal government’s definition of marriage and extended marriage rights to same-sex partners. The federal government refused to appeal the decisions, ensuring that in those provinces, at least, homosexual couples were allowed to marry.

Intending to change the definition of marriage in federal law, prime minister Jean Chretien sent three reference questions to the SCOC on the question of marriage definition, a move critics said was intended to provide cover – “the court made us do this” – for a divisive political move. When Paul Martin replaced Chretien as prime minister, he added one (meaningless and time-wasting) question.

In December 2004, the SCOC ruled that the federal government was allowed to change the definition of marriage, but remained silent on the question of whether, under the Charter of Rights, it had to change the definition of marriage. Six months later, the House of Commons passed legislation extending marriage to same-sex partners. Many politicians dishonestly claimed the court left them no choice.

The Charter, although silent on the issue of sexual orientation as a basis for special rights, has had sexual orientation “read in” to Section 15 by various levels of courts and by the Supreme Court of Canada on no less than three occasions. As Ted Morton and Rainer Knopf argue in their book The Charter Revolution and the Court Party, the judges (pushed by federally funded special interests) were invited by the Charter to became legislators. But Morton and Knopf also argue that the judges (and the Court Party coalition of special-interest litigants) have perverted the Charter by reducing it to a single value: equality.

The courts have ignored individual rights enumerated by the Charter in favour of group rights. This has repeatedly benefited homosexual activists and left the rest of society with little or no recourse to resist the advance fo the gay agenda. It is clear (from the justice committee’s 22-2 vote) that the Charter was not intended to do this; it is also clear that there is little political will to resist the court’s lead down this dangerous path.

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