A Canadian Legal Perspective on Homosexuality

Little is really known about homosexuality because it is a very controversial subject. In recent years there has been a lot of research on this generally disdained topic in an attempt to shed some light on what the misconceptions are and to separate it from the facts. What is generally said about homosexuality are just stereotypes, which are believed because the only thing many have as reference is the media, which is definitely not a valid source of information. Homosexual people are not trying to “convert” heterosexuals to become homosexuals; that is highly inaccurate and just one of the many stigmas that follow homosexuals everyday. There are many more misconceptions, for example, that homosexuals are just trying to disrespect God by choosing to be be homosexual. In contrary to the generally accepted belief, homosexuality is not a choice, but instead a perfectly natural occurrence as it is observed in countless animal species. There is nothing wrong with being gay, but people make it seem as though it is a negative characteristic. From a legal standpoint there is nothing against homosexuality in the Canadian Charter of Rights, which is what determines whether a law be struck down, or be upheld, and homosexuality violates none of the sections of the charter. The Charter does instead prove that homosexuality should be viewed as constitutional, and all prior beliefs, or laws restricting it should be declared unconstitutional and struck down, rather than upheld.

The October 1980 draft provided that “Everyone has the right to equality before the law and to the equal protection of the law without discrimination because of race, national or ethnic origin, colour, religion, age or sex.” This was changed to the more open ended and expansive provision contained now in the section 15(1) of the Charter, “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.” The Human Rights Code of Canada added new grounds applying to various activities include place of origin, marital status, receipt of public assistance, record of offence, and, most recently, sexual orientation. The laws violated the Charter of Rights and Freedoms–equality before law– and the current law was declared unconstitutional because of the impediment that marriage was union between a man and a woman, not same-sex couples. The couples involved in the Halpern v. Canada case appealed the decision, requesting that the changes take place immediately, not after a delay like many other cases. On June 10, 2003, the Ontario Court of Appeal validated that the equality provisions in the Canadian Charter of Rights and Freedoms were violated by the current Canadian law on marriage. The laws had to be changed right away, with no grace period given to change the laws to fit the ruling. Because of the ruling, the city clerk began to issue marriage licenses to same-sex couples. This made Ontario the first place in North America to recognize same-sex marriage, and therefore gave precedence in legalizing same-sex marriages in Canada. In Quebec, the couples involved in the Hendricks v. Quebec case in 2002 demanded the right to marry and they argued that the under the common law, prohibiting same-sex marriage be deemed unconstitutional because of its discriminatory nature and was therefore unjustifiable under Section 1 of the Canadian Charter of Rights and Freedoms. This issue was also addressed in the Halpern v. Canada (Attorney General). The primary issue addressed in the Barbeau v. British Columbia in 2003 was that the common law bar to same-sex couples because it violated the rights given in the Canadian Charter of Rights and Freedoms. Also this issue was addressed prior in the Halpern v. Canada (Attorney General), and the Hendricks v. Quebec (Attorney General). On September 13, 2004, the Ontario Court of Appeal declared that the Divorce Act was unconstitutional for not including same-sex marriages.


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