The charter’s checkered past

Canadian Charter Of Rights And Freedoms turns 20

The Canadian Charter Of Rights And Freedoms just turned 20 years old, with many gay and lesbian advocates joining the birthday celebrations with toasts for the charter’s groundbreaking role in promoting gay and lesbians rights.

The last 20 years has seen gay and lesbian litigants go to court, challenging laws that discriminated against them as individuals or as members of same-sex relationships. The early years saw mostly defeat after defeat. Courts sputtered some pretty homophobic stuff all dressed up in legalese. Most courts did not see the protection of gay and lesbian rights as part of their mandate.

In the 1990s, things began to change. We won more cases as some courts began to be committed to equality for gay men and lesbians.

In 1995, the Supreme Court Of Canada, for the very first time, held that the charter did prohibit discrimination on the basis of sexual orientation, and that an opposite-sex definition of spouse violated equality rights. Unfortunately, the more conservative side of the court decided that the denial was a reasonable limit on these rights; the law was upheld.

In 1998, the Supreme Court held that Alberta’s human rights code violated the charter by failing to prohibit discrimination on the basis of sexual orientation. And the court amended the code to by “reading in” this ground of discrimination.

Finally, in 2002, the Supreme Court struck down an Ontario law with an opposite-sex definition of spouse. The result was that Ontario, the federal government and almost all of the provinces have since amended their laws to include same-sex couples on the same basis as unmarried straight couples.

This is quite a legacy, and arguably, more than enough to justify raising a glass of champagne.

But before we drink the whole bottle, a few words of caution.

Some folks think that the charter has changed gay and lesbian politics in not so great ways. The movement for gay and lesbian rights has come to be overly controlled and directed by a small group of lawyers and activists, with little grassroots support. Other folks argue that the gay and lesbian liberation agenda has been hijacked by those who just want to be like straight folks.

And while equality claims have faired well, other claims, like those for sexual freedom, haven’t.

Consider Little Sister’s, the case challenging the authority of Canada Customs to censor sexually explicit materials at the border. We lost, even though the Supreme Court recognized that the gay and lesbian community has been excessively targeted. The court merely told Customs to stop discriminating in their enforcement, while the idea that governments can and should censor sexually explicit materials was vindicated.

And then there are all the other cases involving the restrictions on sexual freedoms: Think of the charges and police raids against gay bars, gay strip clubs and lesbian bathhouses and their patrons. While the formal equality of gay and lesbian relationships marches forward, rather less progress has been made on challenging the continuing regulation of sexuality.


While I have my doubts that the charter will make progress on the issue of sexual freedom, its delivery on formal equality is a legacy worth defending.

A passage from Margaret Atwood’s The Handmaid’s Tale has always highlighted for me just why the denial of formal equality is insidious. In recounting the transformation from liberal democracy to theocracy, the narrator tells us that one day, her bank card just stopped working. With a sleight of hand, and the denial of formal equality, women became non-citizens.

Formal equality is important – because not having it really sucks.

And the charter and the courts have delivered formal equality to gay men and lesbians when politicians just didn’t have the guts to do the right thing.

The equality troops have now moved to the final frontier in the struggle for formal equality, marriage. Though, along with others, I’m no fan of marriage, I think the marriage challenges should win – and probably will.

Once the charter has finished delivering formal equality by extending marriage, it ain’t going to deliver much else. And we are going to have to remember the other things that were part of gay and lesbian politics before the charter.

A little champagne never hurt anyone, but let’s not get blinded by the bubbles.

* Brenda Cossman is a member of the board of Pink Triangle Press, which publishes Xtra.

Brenda Cossman

Brenda Cossman is a professor of law at the University of Toronto, the author of Sexual Citizens: The Legal and Cultural Regulation of Sex and Belonging (Stanford University Press) and a former board member of Pink Triangle Press, Xtra’s publisher.

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Power, History, Canada, Toronto, Human Rights

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