The federal are public of Canada has been claimed to be nation with the most extensive gay rights in the Americas. Canada has achieved this fete with several hurdles and court decisions in a bid to uphold the right of the entire group commonly referred to as LGTB (Lesbian, gay, bisexual, and transgender). Today, it can be argued that every LGBT Canadian citizen shares almost equal rights with their straight counterparts. One of the fundamental rights that Canadian gays enjoy is civil marriage. The entire nation, since the year 2005 allowed same sex marriage making Canada the fourth country in the world to allow the practice . Courts in their several landmark rulings have relied on the Canadian Charter of Rights and Freedoms to base their arguments and allow same sex marriages. This paper provides an overview of same sex marriages and with particular emphasis on the decision on the decisions made by courts. The paper will analyze the decision of the courts based on human rights and examine whether, in my opinion, the court were constitutional in their ruling.
Overview of Gay rights movement in Canada
Gay rights movement has come a long way in Canada. In the 1800s, having sex with a person of the same sex was seen as ‘gross indecency’ . The offense, according to Canadian law was in fact punishable by death. In early 20th century gay men were considered as criminal of psychopathic nature and viewed as outlaws with hazardous intent. The first court case the plunged gay right into much disarray was the famous 1965 case against Everett George Klippert . The initial instance of the cases was an inquiry into a fire incident in Canada’s Northwest Territories. In the incident, the man would later confess to having sex with another man. After the admission to a sex encounter with a fellow man, the court ordered the man be put under psychiatric evaluation to consider whether he would consider reversing his sexual orientations. The psychiatrist concluded that the man would not change his mind and as a consequence the court sentenced Klippert to life in prison after brandishing him a dangerous offender to the general public. Newspaper articles and other forms of media appeared sympathetic in their article about the gay man and the right to exercise right of association without any discrimination . The public would also take up the cause to fight for the right of homosexuals within the Canadian society.
There was progress when in 1967, a bill was proposed to decriminalize homosexuality and was later passed in 1969 . The next stage of the movement shifted to fighting different forms of discrimination based on homosexuals and same sex orientation. In 1977, more landmark progress was reported when Quebec was the first authority to outlaw any discrimination based on sexual orientation and thereby any homosexual discrimination was thus criminal. This was the case in the world where a jurisdiction bigger than a metropolis or nation would come out to oppose gay discrimination. After this ruling, different provinces and territorial government would adopt gay right into their bill of right and thus embed the same in their constitutions.
Current rulings and debate on gay rights in Canada
The Federal Republic of Canada in 1982 developed what was to be benchmark on which human rights and the protection of liberties was to be based on. The Canadian Charter of Rights and Freedoms was embedded in the constitution and Section 15 of the charter is directly concerned with fighting discrimination. Section 15, also referred to as Equality Rights, defines that every Canadian has the right to equal protection and benefits as defined by law without any form of discrimination be it based on sex, race, color, origin or any form of disability . The Section is rather silent about discrimination against gays and therefore the courts were left to define whether discrimination against gays was protected by section 15. However, courts have since attempted to set straight the definition of discrimination when it comes to gays. The Supreme Court in the 1994 landmark ruling held that sexual orientation was inherently included in Section 15 of the Charter of Right of Freedoms as it was analogous to the grounds listed . In the case, the court argued that sexual orientation very much fitted in the definition of ground against discrimination since had been decriminalized under the law.
In defining the general terms and provisions of discrimination, the court has since developed a three part test that defines infringement of rights in Canadian law. The three part test was expressly defined to assist other courts in making ruling with regard to discrimination and human rights. In the three part test, the first test defines whether the law under consideration creates a distinction. After the first test has been asserted, the second part defines whether the distinction created is based on the grounds listed under section 15 of the charter. The second rule also extends to find out whether the grounds of distinction created by the law under consideration are analogues to those listed in section 15. The final test in the three part test seeks to define whether the distinction created by the law under review imposes and burden on an individual. Additional the third test investigates whether a benefit due to an individual has been withheld by the distinction in a manner that creates a stereotype or degrades human dignity. In general, courts have to define a new law and reviewed under the three part test in order to ensure that the laws as defined in section 15 is upheld.
Personal opinion
The decisions by the court to consider same sex marriage a legal right is quite plausible. This is due to the fact that the state has no right to infringe on the character and orientation of persons in their private lives. The freedom to association and right to consent has been expressly provided for in the constitution. Homosexuality and same sex marriage is one of other method of expression and exercising right to consent. Thus the court played an important role in ensuring that the freedom of all Canadian is upheld. Courts have therefore played an important role in ensuring that Canada enjoys some of the most extensive civil rights in the world.
Conclusion
The government in 2005 passed into law the right to same sex marriage under civil law. Canada becomes the fourth nation to sanction same sex marriage and this has been acclaimed as a major milestone in Canada human rights progress. Later in 2009, the terms “sexual orientation” were included in the grounds that outlaw discrimination.
CBC News. (2005, June 14). The Supreme Court and same-sex marriage. Retrieved July 26, 2012, from http://www.cbc.ca: http://www.cbc.ca/news/background/samesexrights/
Ontario Human Rights Commission Canada. (2000). Policy on Discrimination and Harassment because of Sexual Orientation. Retrieved July 26, 2012, from www.ohrc.on.ca: http://www.ohrc.on.ca/english/publications/sexual-orientation-policy.pdf
Sheppard, R. (2005, Dec 20). Reality Check: Notwithstanding Notwithstanding. Retrieved July 26, 2012, from www.cbc.ca: http://www.cbc.ca/canadavotes/realitycheck/notwithstanding.html
