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Thursday Thinkpiece: LGBTQ2+ Law Practice Issues and Analysis

Periodically on Thursdays, we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.

LGBTQ2+ Law: Practice Issues and Analysis

General Editor: Joanna Radbord
Foreword: Kathleen Wynne

ISBN: 978-1-77255-432-8
Publisher: Emond Publishing
Page Count: 640
Publication Date: October, 2019

Regular Price: $136 (print), $116 (e-book).
Until the end of October, orders of this title will receive a 15% pre-publication discount, plus free shipping.

Excerpt: from Chapter 1, Part VI Conclusion, Personal Reflection by Douglas Elliott, “In Praise of Lawyers”.

IN PRAISE OF LAWYERS

“Imagine having to fight for the basic rights that your peers enjoy, over and over again.”

These were the words of Prime Minister Justin Trudeau in his powerful apology to Canada’s LGBTQ2+ communities in 2017. As luck would have it, I was one of the many teary-eyed activists who had been invited to the galleries of the House of Commons that day. In his speech, the prime minister took no credit on behalf of his or previous governments for our progress, and rightly so. The heroes of our movement are not politicians, but lawyers.

Canada’s LGBTQ2+ communities have every right to be angry about the role of the law in our country’s history. A low point in this history arrived with the infamous case of Klippert v The Queen. [102] Klippert’s lawyer, Brian Crane, who was part of an early generation of criminal lawyers who came to the defence of our community, pointed to the absurdity of the law deeming a harmless gay man “dangerous.” Unfortunately, he was only able to persuade two of the five justices.

The ruling had a silver lining. The media and Klippert’s member of parliament took up the cause. Canada had a new minister of justice, Pierre Elliott Trudeau. A gifted lawyer himself, Trudeau responded to media queries with his famous remark that in his opinion, “the state has no place in the bedrooms of the nation.” It was an idea that captured the public imagination. Not long afterward, Trudeau became prime minister. His minister of justice, John Turner, would follow through with the famous partial decriminalization of same-sex acts in 1969. The reforms offered a promise of measured tolerance, not equality. They did not end our community’s need for lawyers.

Many in Canada’s police services continued to view our community as criminals. The RCMP and other police services made it clear that LGBTQ2+ people were not welcome to serve as police officers. Montreal’s police raided many gay establishments to “clean up” the city for the 1976 Olympics. The murder of a young shoeshine boy in Toronto triggered a backlash that would include police raids on The Body Politic newspaper, the Glad Day Bookshop, and bathhouses, culminating in the massive bathhouse raids of 1981. Members of the criminal defence bar were critical to our community’s ability to endure the police onslaught.

The next blow to our community came not from the police, but from a microscopic virus. During the AIDS epidemic, many of us shifted the focus from fighting for our rights to caring for our dying brothers. I felt my recently acquired legal skills were needed. I could not treat the ill but I could help ensure that their affairs were arranged so that they could protect their surviving partners, and at least have the dignity of the funeral they wanted. It was necessary but inglorious work. No precedents were set, but we offered a little comfort, control, and quality of life to people in terrible circumstances.

In 1985, the Canadian Charter of Rights and Freedoms’ [103] equality guarantee came into effect. I was one of many who were not optimistic that the Charter would make any difference in our lives. The politicians had refused to expressly add sexual orientation to the enumerated grounds. We would have to take our chances with the judiciary—the same judiciary that had given us the Klippert decision.

Remarkably, judges accepted that sexual orientation was an analogous ground under section 15(1), the equality guarantee of the Charter. Since the initial rulings were from lower courts, this did not mean that much at first. Except that they were all in agreement.

The Charter had created a revolution for lawyers keen to defend the LGBTQ2+ community. Before that time, we were offered a shield. We could only resist the attacks of the state. Now lawyers could use the Charter as a sword, to attack unjust laws and unjust government conduct. Lawyers took up that challenge. And Canadian judges were open to their arguments.

There were many cases of significance at the tribunal and lower court levels. Despite our best efforts to coordinate among the lawyers and the clients we served, we were reactive more frequently that we were proactive. Then, there were a series of cases at the Supreme Court of Canada (SCC) that proceeded in a sequence that we lawyers had tried to shape as we planned to develop the jurisprudence.

The case of Egan v Canada [104] was a planned attack argued by my former constitutional law professor, Joe Arvay. While many saw Egan as a loss, I saw things quite differently. The analysis of L’Heureux-Dubé J in her dissent in Canada (Attorney General) v Mossop [105] now had gained real traction on the court. Cory and Iacobucci JJ were emerging as the consensus builders. The case exemplified how interveners could deploy a small army of lawyers to great effect. Although we lost on section 1 again, even the negative reasons of Sopinka J made it clear that it was only going to be a matter of time before we were going to win. The strategic message of Sopinka J to the lawyers for the LGBTQ2+ community was loud and clear: next time bring us a case that is not going to cost the government any money, and you have a good chance of winning. We certainly knew how to take a hint.

The next case I will highlight was not planned at all. Delwin Vriend was an accidental activist, a man fired from his teaching job because he was gay. When I met Delwin, he had had won his case at the trial level. However, his lawyer had left Alberta and he was having trouble finding one willing to take on the powerful Progressive Conservative government in Alberta, on appeal. Fortunately, I was able to connect him to Sheila Greckol. Sheila was vital in seeing things through to the SCC. She put in a winning performance in Ottawa, ably supported by a remarkable chorus of lawyers for a variety of intervenors. [106] I was proud to be part of that impressive team of lawyers, appearing as counsel for the Canadian AIDS Society.

In M v H, [107] Martha McCarthy, who was then a junior lawyer, bravely took on a case that would make history. I will never forget Martha’s courage in standing up to a withering line of questions from the Court of Appeal for Ontario. She won in that court. Then there was a whole team of intervening lawyers, including me, who supported Martha in her victory in the SCC.

In the wake of M v H, I soon realized that surviving partners in same-sex couples were still having difficulty recovering Canada Pension Plan (CPP) survivor’s pensions. I was able to reach out to a group of lawyers I had come to know from my work on the Krever Inquiry to build the national legal team needed to address this problem. In my youth, I had come to know a pioneering Canadian activist named George Hislop. I reached out to George to see if he was willing to act as representative plaintiff in a class action I thought might solve the problem, and he quickly agreed. We had to fight the Government of Canada all the way to the SCC. However, the case, that George liked to call “the Queen versus the Queen,” resulted in Canada’s first successful constitutional class action. Elderly bereaved Canadian gays and lesbians finally had their relationships recognized and were given some well-deserved financial equality too.

Through volunteer work I had done for Egale, I had learned that my longtime friend Todd Ross was a survivor of the “LGBT Purge” that had taken place in the Canadian Armed Forces from the early 1950s to 1993. I was shocked to learn of his experience. That same day, I met Martine Roy for the first time. She was also a survivor of the Purge, and for years had been looking for a lawyer who would be willing to take on her case. After many years of hard work, the class actions brought on their behalf by an amazing national team of lawyers produced the largest financial settlement in the world for LGBTQ2+ discrimination.

Sometimes I speak to young lawyers who know a little bit about this history but feel there is nothing left for them to do. How wrong they are! The people of the rainbow flag are a diverse lot, and the court victories we have won at great cost have not benefited everyone equally, and certainly have not addressed the wide range of challenges before us. I would urge new lawyers to “take up our quarrel with the foe,” and to continue to fight the good fight.

I have considered it a great privilege to be able to use my legal skills to help our community advance toward equality. However, I am conscious of the fact that our advances are the work of many hands. All of us in Canada’s LGBTQ2+ community enjoy an enviable level of equality compared to those in other countries in the world. And that happy state of affairs is largely the work of Canadian lawyers. Let us never shy away from singing their praises and the praises of LGBTQ2+ families who have had to fight their own government for the right to benefits and equality, including the freedom to marry, often at great personal cost.

To all the trailblazers who have struggled, and to all those who have fought so hard to get us to this better place: thank you for your courage, and thank you for lending us your voices. I hope that you look back on all you have done with pride. And not least among you, our lawyers.

[102] [1967] SCR 822.
[103] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
[104] [1995] 2 SCR 513.
[105] [1993] 1 SCR 554.
[106] Vriend v Alberta, [1998] 1 SCR 493.
[107] [1999] 2 SCR 3.

Comments

  1. As a gay lawyer, I enjoyed your summary of key legal victories for our LGBT community. I would also point out that our legal progress did not materialize out of thin air. After all, judges are not adjudication robots; they are human beings with families, friends, neighbors and co-workers. When a critical mass of LGBT Canadians gradually had the courage to come out of the closet, straight Canadians (including judges) realized that they all had LGBT relatives, friends, neighbors and co-workers. Only then did our judges realize the obvious injustice (and irrationality) of discrimination on the basis of sexual orientation.

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