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Canada’s First Openly Gay Judge on the Most Memorable Same-Sex Weddings He Conducted

When Ontario legalized gay marriage, couples flocked to Toronto to get hitched

When I was growing up, the notion that two people of the same sex might one day get married was not only unheard of, it was unthinkable. Until I was almost thirty years old, homosexuals were a despised minority with almost no legal protections. I’m extremely fortunate to have lived through a monumental and relatively rapid evolution of legal and social reforms culminating in the legalization of same-sex marriage. And I’m even more fortunate that, during my judicial career, I had a front-row seat to some of the most historically significant developments in what many human rights lawyers refer to as “the last civil rights movement.”

Homosexuals in Canada have travelled a long and difficult road to equality. During the 1950s and ’60s, the Royal Canadian Mounted Police monitored the activities of individuals suspected of being gay. Homosexuals were banned from working in government, law enforcement, and the military. Homosexuality was a criminal offence punishable by life imprisonment. The last Canadian sent to jail simply for being gay was Everett Klippert, an auto mechanic from the Northwest Territories. In 1965, he was given an indefinite life sentence as a “dangerous sex offender” even though all his sexual activities had been with consenting adults. The Supreme Court of Canada upheld his sentence in 1967, describing his incarceration as “preventive detention.”

Homosexuality in Canada was decriminalized in 1969. Then prime minister Pierre Trudeau famously said, “There’s no place for the state in the bedrooms of the nation.” Despite the passage of these amendments, Klippert wasn’t released from prison until 1971.

The Stonewall riots of June 1969 in New York City are widely considered to have launched the gay liberation movement in North America. In 1977, Quebec became the first province in Canada to include “sexual orientation” in its human rights code, making it illegal to discriminate against gays in housing, public services, and employment. And in 1978, the Canada Immigration Act finally eliminated the long-standing ban prohibiting homosexuals from entering the country.

In 1992, the Ontario Court of Appeal ruled that Captain Joshua Birch had suffered illegal discrimination when he was discharged from the Canadian Armed Forces for disclosing that he was gay. This led to a decision lifting the ban on homosexuals in the military, allowing them to serve openly and live on base with their partners.

In 1993, in the case of Canada v. Mossop, the Supreme Court ruled that the denial of bereavement leave to a gay partner was not discriminatory. But two years later, in Egan v. Canada, the court ruled that sexual orientation is a prohibited ground of discrimination under the Canadian Charter of Rights and Freedoms. Finally, homosexuals in Canada were constitutionally protected from discrimination. That was the state of the law when I was appointed to the bench in April 1995 as a judge of the Ontario Court of Justice.

Several months after my appointment, my dear friend and colleague Justice James Nevins, with whom I presided at the same courthouse for many years, delivered a landmark ruling in the Re K. adoption case, permitting same-sex couples to adopt children. When I congratulated Jim on his brilliant and insightful application of constitutional equality principles to same-sex couples, he replied, “Well, Harvey, getting to know and becoming friends with a gay colleague like you helped me to understand the real-life implications of the legal issue I had to decide.”

That comment made me realize, in a very profound way, that having diversity on the bench itself was truly important for judges to have a better understanding of the issues they faced. I understood that, for many of my colleagues, I was the face and voice of the gay community. And I took that responsibility seriously.

Numerous judicial colleagues told me that, prior to my appointment, they hadn’t known any openly gay people, and that their comfort level increased after getting to know me and my partner, with whom I’d begun living prior to becoming a judge. I always made a point of bringing my partner to every judges’ conference and to all social events with my colleagues so that they’d see for themselves that same-sex couples were no different than any other couple.

And, as time passed, I was called upon by numerous colleagues to help them and their spouses adjust and respond appropriately when their children came out. I was happy to be known by my colleagues as “the gay judge,” giving personal advice, speaking on panels, and organizing a judicial education program........

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