It is important to identify that none of the contributors to The Dominion self-identify as members of the LGBT community. We recognize that, today, we are writing about things that we haven't personally experienced and that our ability to competently write on this issue is limited. We also recognize that the abbreviation “LGBT” is considered by many to be incomplete. We have chosen to err on the side of simplicity and familiarity. It is not our intent to offend. We apologize for any shortcomings that appear below.
One might assume that LGBT rights in Canada were worse the further one delves back into our history. This would be incorrect. While LGBT rights in 1867 were nowhere near what they are today, it's important to note that things actually got a lot worse before they got better.
In 1867, there were “buggery” laws on the books,1 and this crime was punishable by death in British North America. As abhorrent as this is, these were inherited laws from Great Britain and officials on this side of the pond simply didn't see fit to impose the punishment. While there were many people sentenced to death for this “crime,” there are no records of this sentence being carried out. Instead, the convicted were pardoned or had their sentences commuted.
As unjust as this position was, in 1948 the Criminal Code was amended to label gay men as “criminal sexual psychopaths”, as well as to provide for indeterminate prison sentences.2 In the 1950s and 1960s, a pseudoscientific device known as the “fruit machine” was employed to identify gay men. These men were deemed to be ineligible for government jobs, including the Canadian Forces and the Royal Canadian Mounted Police.3 This signified a low point for LGBT rights in Canada.
In 1968, Minister of Justice John Turner introduced The Criminal Law Amendment Act, 1968-69, an omnibus bill that decriminalized homosexuality.4 His predecessor, Pierre Trudeau, who had introduced an earlier version of the Bill, famously commented that “there's no place for the state in the bedrooms of the nation”.
Of course, mere decriminalization was insufficient, and systemic discrimination against LGBT people was still a problem. It still is, but things have started to get better. The advent of the Canadian Charter of Rights and Freedoms5 in 1982 brought forth important protection against discrimination for segments of the population that were identified as minority groups.6 Sexual orientation was NOT included.
It was not until 19957 that the Supreme Court of Canada “read-in” sexual orientation to s. 15 of the Charter. In 19988 the Court went a step further and ensured that provincial human rights statutes needed to be interpreted as if sexual orientation was deemed to be a prohibited ground for discrimination. This was held to be so, regardless of the intention of the provincial governments when crafting their legislation. The next year, the Court ruled on the landmark case M. v. H.9 allowing for same sex marriage in Canada, later resulting in the federal Civil Marriage Act10 which codified this right.
While these measures have undoubtedly improved life for gay, lesbian, and bisexual people the battle for equality has just begun for those with non-traditional gender expressions and identities. An Act to Amend the Canadian Human Rights Act and the Criminal Code is currently before Parliament to add protections from discrimination on these grounds.11
Legislation is not enough. The systemic discrimination that has resulted in unfair treatment to these minority groups are not going to disappear by the mere stroke of a pen. While good law is indeed necessary, it is not sufficient.
To those of our readers in law school, legal professions, politics, and others who occupy positions of power or are going to in the future, consider this a call to arms. If our country is going to keep advancing against intolerance, we need to help lead the charge. We must decide how we are to use the influence that will invariably be entrusted to us, and we must do so fearlessly.
Intolerance and hate have dominated for far too long. For what it's worth, we're choosing love. We hope that you'll join us.
1 Consolidated Statutes of Canada 1859, c 91, s 22.
2 RSC 1927, c 36.
3 Gary W Kinsman, Dieter K Buse & Mercedes Steedman, Whose National Security?: Canadian State Surveillance and the Creation of Enemies (Canada: Between the Lines, 2000).
4 SC 1968-69, c 38.
5 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act (UK), 1982, c 11 [Charter].
6 Ibid at s 15.
7 Egan v Canada,  2 SCR 513.
8 Vriend v Alberta,  1 SCR 493.
9  2 SCR 3.
10 SC 2005, c 33.
11 Bill C-16, An Act to Amend the Canadian Human Rights Act and the Criminal Code, 1st Sess, 42nd Parl, 2016.