5 min

Canada’s first openly gay judge a little bit Dr Phil

'This is what faggots grow up to be now'

Credit: Joshua Meles

Canada’s first openly gay judge, who describes himself as “more Dr Phil than Judge Judy,” has performed hundreds of same-sex marriages since the option became legal in Ontario on Jun 13, 2003.

As a judge, he can’t charge for the service but says he wouldn’t even if he could. He considers it an honour and a privilege, in fact, the best part of his workday. He legally joins weepy brides and teary grooms in his office before court begins at 10am or squeezes in ceremonies at lunch or after work, often rounding up staff to act as witnesses and take pictures for the some 80 percent who arrive without family or friends, which he finds “deeply distressing.”

Yet, the man who goes to work under the impressive moniker the Honourable Mr Justice Harvey P Brownstone hardly considers the institution of marriage a success.

“I don’t think you can call a 40 percent failure rate [in North America] a successful institution,” he says, leaning forward dramatically with, yes, a flourish of Dr Phil. “And I don’t think gays will be any more successful at it than straights.”

Brownstone, wearing a swanky black and white check jacket over a black sweater, is sitting in his office in North York’s Ontario Court Of Justice. The 48-year-old actually resembles the TV therapist (though Brownstone is fitter and better dressed) with his broomstick moustache and soft brown eyes that spring wide open with shock and dismay – even at the recollection of shock and dismay.

Behind him, a door leads to his courtroom where, as a family court judge, he sees the worst of what the fairytale institution can spew up, like parents who “throw their babies in dumpsters and put their children’s hands in meat grinders and lock their kids in the basement. It’s shocking!”

More commonly, of the 1,000 or so cases he juggles at any one time, he deals with merely “damaged people” who wage bitter custody and support battles, more about power and money, he says, than the wellbeing of their children.

Ten years ago, when he became one of the youngest judges ever appointed, Brownstone was hardly prepared for the ugliness of the job. He grew up as an only child in a comfortable family in Hamilton. But coming out at age 19 had given him a taste of what many in his courtroom face: poverty, fear and loneliness.

“Rejection,” he says, “can be a very powerful motivator. I was determined to prove to my family that I could be somebody, that they shouldn’t be ashamed of me.” He responded with a “meteoric career.” Law school at Queen’s, called to the bar at 23, openly gay lawyer, then director with the Ontario Ministry Of The Attorney General (led at the time by the closeted Ian Scott).

After six months on the bench, Brownstone faced his “moment of truth.” A 14-year-old boy, expecting lenient sentencing, calmly explained that he had donned brass knuckles and viciously beaten a boy because the victim was a faggot.

“I had to make a split decision,” says Brownstone. “Do I go into the usual rhetoric about how this is a hate crime and society doesn’t tolerate it? Instead, I looked at him and said, ‘Well, so am I.’ Then I said, ‘Take a good look at this uniform, because this is what faggots grow up to be now.’ Then I sent him to jail. At that moment, I was every kid who had ever gotten beaten up in school. I wanted that young boy who had been victimized to walk out of the court feeling validated. That he might have a hard time at school, but he could grow up to realize all his aspirations. Because, I did. That was another coming out. It was a proclamation from the judiciary.”

Since then, the good judge has delivered many more Dr Phil-esque zingers as he tries to talk sense into sparring spouses.

“I really love people and I love the challenge of trying to reach compromise and consensus, to find something positive even in a conflict. I thrive on that.” He asks cocaine addicts if the drug is more important than their children; he counsels alcoholics to imagine their child’s face when they reach for the bottle; and he scolds parents for their bad behaviour in court.

“I try to see the world through the eyes of the children. Parents have no rights. They have obligations. Children have the rights.” On occasion, he decides against both parents and sends the child to fostercare.

Little wonder, then, that seeing same-sex couples spouting loving vows just makes Brownstone’s day. He admits to being “profoundly affected” by their ceremonies, which are far more emotional than straight weddings he’s attended. He delights in marrying foreign couples who gush with gratitude to Canada’s legal system “for leading the way.” He believes the first wave of lesbians and gay men exchanging vows – by his estimate, together nine years on average – will bolster marriage stats, by staying together. (Though he readily points out that he married the first lesbian couple to divorce.)

For his pioneering work, he has made the pages of the New York Post and People magazine, appearing resplendent in black robes, white collar and scarlet sash as he declared two kilt-wearing gents spouse and spouse.

Brownstone can even work himself into an optimistic head of steam, suggesting that same-sex couples have a chance to “reinvent the institution of marriage.” With no preconceived roles of husband and wife, without the burden of tradition, he says we can create an institution that works for us: “Marriage can be anything you want it to be.”

Yet, he and his partner, Morty, together since 1985, haven’t rushed out to tie the knot. Brownstone relates to the gay community’s underwhelming demand for marriage licences. “Many are wondering if they need this when they managed to build quite successful relationships without it.” Still, he says he and Morty hope to marry one day, for the symbolism, to “be among the numbers who have taken that step.” And, yes, for the party.

When he talks about plans, it sounds as much a celebration of progress, both personal and societal, as of their union. He describes Morty as “extremely supportive” and the key to their success as finding solutions to disagreements so that both “feel you have benefited.” His parents have even come around. Indeed, his mom wants to walk Harvey up the aisle. He jokes that about 80 fellow judges, proud to have a gay judge in their midst, have offered to officiate. It certainly beats the surreal feeling he had a few years ago, when he had the authority to conduct straight weddings, yet could not marry himself.

Still, Brownstone finds himself wondering whether marriage will make a difference – to his or other long-standing relationships.

“I ask this question of couples that I have married,” says Brownstone. “‘Did it make a difference?’ I’ve married couples who have been together 30 years. And everyone has said, ‘yes.'”

The clock ticks down on our interview and the judge rises to face another day in court. But, like Dr Phil, Brownstone can’t resist a parting shot: “Being equal means having the right to make the same mistakes as everyone else.”