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LGB rights stemmed from the Canadian Charter of Human Rights and Freedoms,
devised in 1982 and enacted three years later. Sexual orientation had initially been
excluded from the scope of the Charter, with the moral panic on homosexuality and
HIV at its height in the wake of the 1981 police raids on Toronto bathhouses
frequented by gay men (Smith, 1999, p. 68). However, this omission was remedied
by the 1995 Egan v. Canada ruling in the Supreme Court of Canada, which
established the principle that Section 15 of the Charter, which provides for equal
treatment and protection under the law, should be interpreted as including
protection on sexual orientation (Lahey, 1999, p. 48). This legal interpretation of the
Charter sparked a steady stream of litigation, marking a shift in LGBT activism away
from transformative, liberationist goals towards rights and equality-seeking (Smith,
1999, pp. 73-4).
In terms of recognition for same-sex couples, Canada’s well-developed system of
cohabitation rights for unmarried couples may have facilitated the longer-term goal
of marriage equality by blurring the legal distinctions between different classes of
couples (Perron, 2007, p. 13). For example, the 1999 M. v. H. ruling in the Ontario
Supreme Court overturned the province’s legal definition of spouse as relating
exclusively to opposite-sex partners, and established the principle that there was no
legitimate public policy interest in discriminating against same-sex couples. This
principle of parity of treatment was to prove decisive in the legal fight for marriage
equality (Smith, 2002, p. 7). The notion of legal equality between heterosexual and
homosexual couples with respect to marriage was considered in 2002 by the Quebec
Supreme Court. In Hendricks v. Quebec, the provincial Supreme Court ruled that the
exclusion of same-sex couples from marriage was a breach of the Charter. Neither
did the ruling provide any scope for civil unions as a substitute option for same-sex
couples. This rejection of a ‘separate but equal’ solution highlights the social and
cultural importance of marriage and evokes a sense of stigma arising from
alternative statuses such as civil union. With regard to same-sex couples, the court
found that:
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