3 min

Same-sex marriage illustrates how Canada got it right on rights

While it’s important to recognize the gaps in our struggle for equality, the moment we take our achievements for granted, we risk losing them

A couple shows their wedding rings to the media after their ceremony at the Metropolitan Community Church of Toronto on June 28, 2003 in Toronto, shortly after the recently changed laws on same-sex marriage. Credit: David Lucas/Getty Images North America

In the run up to Canada’s 150th birthday party, it was fashionable to assert that Canadians had nothing to celebrate. That the country was founded on nothing more than the subjugation of its Indigenous population and the ongoing oppression of minority people.

While it’s important to recognize the significant gaps in our struggle for equality, that perspective makes an enormous error by diminishing Canada’s leadership on establishing the human rights of its citizens.

Though as activists we’re often loathe to admit it, queer people in Canada have it pretty good. And not just as compared to notorious anti-gay states like Saudi Arabia and Iran, or our perpetually pearl-clutching neighbour to the south.

Our legal rights as enshrined in the Charter of Rights and Freedoms are the envy of LGBT people abroad, even in some of our closest historical relatives like the United Kingdom and Australia.

Canada’s legal tradition descends from the British system, where Parliament is supreme and has the broad power to enact whatever laws it wants — the only real constraints being the need to hold regular elections and the politicians’ fear of looking bad. While the Americans founded their country with a Bill of Rights that guaranteed fundamental freedoms of speech, conscience, assembly (and, um, gun ownership), Canada’s founders preferred to stick with the British model.

The 1867 British North America Act that founded Canada contained no enumerated rights for Canadians — who were then still British subjects.

Nearly one hundred years later, then-prime minister John Diefenbaker recognized that this deficiency exposed Canadians — especially minority groups — to injustice at the hands of their government, and he introduced the largely ineffective Canadian Bill of Rights as a remedy. But as a simple federal statute, courts were reluctant to rely on it to overrule acts of Parliament.

It wouldn’t be until the 1982 Constitution Act included the Charter of Rights and Freedoms that Canadians had an effective legal remedy to protect their rights and values from government overreach. Since that time, nearly every major victory of Canada’s LGBT movement has relied on an appeal to the values enshrined in the Charter.

Appealing to the Charter has been a particularly strong strategy, since many Canadians see the Charter, and our judiciary, as non-partisan. We are remarkable for how quickly we assimilate Charter rulings on controversial issues as key parts of our identity. Opposition to same-sex marriage was still strong when the first provincial courts ruled in 2003, but support for same-sex marriage is now understood as mandatory for anyone seriously considering a run for prime minister.

This is all very appropriate, since a charter of rights is ultimately a statement of the values of a nation. Our values of freedom, equality, and democracy are fundamental to who we are and should be beyond the power of our government to abrogate.

Compare this to Australia, another federation formed by British settlers on a continent stolen from its original inhabitants just a few decades after Canada. The Australian Constitution is silent on the fundamental rights and values of the Australian people, who, according to the document, are just 25 million or so folks who all live on a giant island in the South Pacific and have agreed to allow 226 people in a building in Canberra to have total control over their lives.

Right now, those 226 people are deep into their second decade of trying to decide whether to allow gay people to get married. There is some hope that they may decide in favour this year (and maybe even this week), but honestly, the twists and turns in this political saga have been endless and repetitive.

Unlike Canadians, queer Australians have had no legal recourse to assert their marriage rights through the courts; however, the Star Observer reported on Aug 1, 2017, that South Australian same-sex couples can now at least legally register their relationships.

Every victory of the LGBT movement in Australia has been hard fought through often nasty electoral battles. Bigoted politicians can resort to the basest, ugliest statements about queer people in part because there is no basic agreement on the values and decency of the Australian people.

A similar dynamic is at play in the United Kingdom, where the lack of a written code of rights that circumscribes Parliament’s power has played a part in hampering the LGBT movement. Queers in Northern Ireland, for example, still can’t get married. True, Brits have recourse to the European Court of Human Rights, but even that institution has limited power to force Parliament’s hand, and the current government is trying to get out from under it anyway.

It was not inevitable or natural that Canada became a country whose supreme principle is respect for the rights of our fellow citizens. It arose from the unique circumstances and the leadership of key players in our history. These things ought to be remembered and celebrated even though, and especially because, we are not yet a nation of true equality.

The moment we take these achievements for granted, we risk losing them, as any casual observer of the chaos south of the border can attest.