What’s Happening in the Courts

Last modified: January 23, 1998

The Supreme Court of Canada has unanimously held that the Charter of Rights prohibits discrimination against gays and lesbians. Moreover, a majority of the Supreme Court ruled in Egan v. Canada [1995] 2 SCR 513, that legislation which fails to recognize same-sex couples equally constitutes sexual orientation discrimination, in violation of s.15 of the Charter of Rights:

"Sexual orientation is demonstrated in a person’s choice of life partner, whether heterosexual or homosexual. It follows that a lawful relationship which flows from sexual orientation should also be protected. ... The definition of ‘spouse’ as someone of the opposite sex reinforces the stereotype that homosexuals cannot and do not form lasting, caring, mutually supportive relationships with economic interdependence in the same manner as heterosexual couples. The appellants’ relationship vividly demonstrates the error of that approach. The discriminatory impact can hardly be deemed to be trivial when the legislation reinforces prejudicial attitudes based on faulty stereotypes. The effect of the impugned provision is clearly contrary to s.15’s aim of protecting human dignity, and therefore the distinction amounts to discrimination on the basis of sexual orientation."

The Supreme Court then went on to hold that ultimately it is up to Governments and Legislatures to take responsibility for bringing discriminatory legislation into line with the equality guarantees in the Charter of Rights.

The Egan decision has now been applied by many other Courts and Tribunals. In Moore & Akerstrom v. Canada, [1996] CHRD No. 8 (CHRT), a Canadian Human Rights Tribunal held last year that the federal government was required to extend same-sex benefits to federal employees. The three-person Tribunal unanimously ruled:

"It is now crystal clear that the law is that denial of the extension of employment benefits to a same-sex partner which would otherwise be extended to opposite-sex common-law partners is discrimination on the ground of sexual orientation.

It is equally clear from the reading of these cases that the inclusion of a definition of ‘spouse’ which excludes same-sex partners in legislation or collective agreements or regulations by the government so as to deny such benefits offends the Charter and the Canadian Human Rights Act and constitutes discrimination prohibited by both."

Similar conclusions were reached in Vogel v. Manitoba (1995), 102 Man.R.(2d) 89, in which the Manitoba government was held to have discriminated for failing to extend equal relationship benefits to lesbian and gay employees.

The Courts have also ruled that Governments have a legal obligation to accord equality to same-sex relationships in situations identical to that currently being considered by the Northwest Territories. In M v. H, (C23867, December 18, 1996), for example, the Ontario Court of Appeal held that legislation which restricted the obligation of spousal support to heterosexual couples was unconstitutional. Courts in Ontario have also ruled that legislation which restricts adoption rights to heterosexuals violates the equality guarantees in the Charter of Rights. In Re K (1995) 23 OR (3d) 679, the Court held that same-sex couples should be treated equally with opposite-sex couples for adoption purposes, noting: (at p.708)

"There is ... no evidence that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than families with homosexual parents. ... When one reflects on the seemingly limitless parade of neglected, abandoned and abused children who appear before our courts in protection cases daily, all of whom have been in the care of heterosexual parents in a ‘traditional’ family structure, the suggestion that it might not ever be in the best interests of these children to be raised by loving, caring and committed parents, who might happen to be lesbian or gay, is nothing short of ludicrous."

Furthermore, as recently as June 4, 1997, a Public Service Staff Relations Board in Nova Scotia ruled that the complainant Ross Boutilier was entitled to take marriage leave from work to celebrate his commitment ceremony with his same-sex spouse (Boutilier v. Treasury Board, File 166-2-26199).

It should also be noted that in no case has evidence been advanced to suggest that recognizing same-sex families harms heterosexual families in any way whatsoever. As Madam Justice L’Heureux-Dubé of the Supreme Court of Canada recognized in Mossop v. Canada [1993] 1 SCR 554, at 634:

"It is possible to be pro-family without rejecting less traditional family forms. It is not anti-family to support protection for non-traditional families. The traditional family is not the only family form, and non-traditional family forms may equally advance true family values. ... [I]t is in society’s interest to improve conditions to enable families to function as best they can, free from discrimination."

It is submitted that the legal responsibility of governments is now quite clear: it is discrimination and a violation of the Canadian Charter of Rights to enact legislation which fails to treat those in same-sex relationships equally. In EGALE’s view, it is an abdication of legislative responsibility to allow these matters to be decided by the Courts. Rather than waste public money defending discriminatory laws before the Courts, it is submitted that it is far better for Legislatures to take the lead and comply with their obligations under the Charter of Rights, by ensuring that laws do not discriminate against gays and lesbians by privileging those in same-sex relationships.

Egale Canada ©2011

Canada's LGBT human rights organization: advancing equality, diversity, education, and justice.