M v. H: Time to Clean Up Your Acts
Constitutional Forum , Vol. 10, No. 3, p. 59, 1999
6 Pages Posted: 3 Oct 2008
Date Written: October 1, 2008
In the 1990s cases of Mossop and Egan, the Supreme Court of Canada twice found ways to avoid dealing with the implications of anti-discrimination law for the rights of gay and lesbian couples. No doubt one reason for the Court's equivocation was the large gap that existed between the logical requirements of equality principles and the exclusion of gay and lesbian couples from a multitude of laws dealing with the rights and responsibilities of family members. By 1999, a pattern of favourable rulings from lower courts and administrative tribunals, changes in the membership of the Court, and a steady increase in public support for the recognition of the rights of gay and lesbian couples, combined to create the conditions in which the Court was emboldened to start closing the gap between constitutional promise and legislative reality.
The style of judicial reasoning in M v. H reflects the impact of the increasingly aggressive attacks directed by some politicians and the media at the exercise of judicial power required by the Charter. Caution was written all over the decision. The narrow focus on the challenged provision, the absence of lengthy discussions of the surrounding legal and social context, the employment of the language of judicial deference, and the avoidance of the "reading in" remedy - all signal a Court treading lightly in the face of the attacks on its legitimacy. But, despite the caution, the Court to its credit did not back down from fulfilling its basic democratic role of protecting minority rights. As politely as it could, the Court has sent a clear message to all legislatures: opposite sex definitions of spouse are discriminatory. If you don't change them, we'll have to do it for you, case by case, definition by definition.
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