Canadian Morality And The Law Essay

3078 words - 13 pages

Canadian Morality and the Law

  In legal theory, there is a great debate over whether or not law should be used to enforce morality.  The sides of the debate can be presented as a continuum.  At one end, there is the libertarian view, which holds that morality is an individual belief and that the state should not interfere in the affairs of the individual.  According to this view, a democracy cannot limit or enforce morality.   At the other end, there is the communitarian position, which justifies the community as a whole deciding what moral values are, and hence justifies using the law to enforce community values.  For libertarians, judges should play a prominent role in limiting ...view middle of the document...

  The collective agreement between the government and Mossap's union afford bereavement leave only in the case of the death of Mossap's "immediate family."  Although this definition included a common-law spouse, it precluded members of the opposite sex.  Mossap, who argued that he was being unfairly discriminated against, filed a complaint with the Canadian Human Rights Commission (CHRC).  The CHRC agreed, and ordered that he be given bereavement leave and that the collective agreement be restated to include persons of the same sex.  The government appealed this decision and the case was brought before the Supreme Court.  The Supreme Could held that the "family status" provision in the Canadian Human Rights Act (CHRA) was meant to uphold an implicit legal interpretation which excluded homosexuals from anti-discriminatory protection.  In his decision, Judge Lamer argued that the CHRA had been amended in 1983 to include the "family status" provision, and if the CHRA had meant it to include homosexuals, they would have made it explicit then.  Instead, according to Lamer, Parliament (through the CHRA) had a clear intent to not extend anyone protection from discrimination based on sexual orientation [354].  Since the legislature had not willed it, Lamer did not feel it was appropriate to amend it.  But the decision was not unanimous.  Judge L'Heureux-Dube, representing the voice of dissent, argued that the majority decision went against the "spirit" of the law, since (in her opinion) the purpose of the Act was to ensure that people have an "equal opportunity to make for themselves the life that they are able and wish to have without being hindered by discrimintatory practices" [355].  Based on this interpretation, she argued that "families" had changed radically in past decades; that single parents, common-law partners, adoptive parents, and other non-nuclear family units have all since been included in anti-discriminatory legislation.   As a result, she argued that traditional interpretation of "family" did not apply in this case, and that the "family status" provision did include homosexuals, since homosexual partners could exhibit all the features necessary to constitute a family unit.


In a similar case, Egan vs. Canada, the Supreme court also upheld the constitutional validity of a law that discriminated against homosexuals.  The appellants, James Egan and John Norris Nesbit, were homosexuals and had lived together for nearly 50 years.  When Nesbit turned 60, he applied for spousal allowance afforded to "spouses" of old age pensioners, as given in Act 19 of the Old Age Security Act, but was denied.  Nesbit claimed that the Act contravened Section 15 of the charter since it discriminated on the basis of sexual orientation. The case went all the way to the Supreme Court where Egan and Nesbit's appeal was dismissed.  The judge, J La Forest, based his decision on reasoning similar to the Mossap verdict.  He argued that when Parliament...

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