Queer Judgments: Homosexuality, Expression, and the Courts in Canada

John Stanley Senior Policy Advisor Corporate Policy Branch Management
Board Secretariat

As a result of the Constitution Act, 1982, Canada’s courts have
assumed an important and active role in refereeing important political
issues in addition to their historic, legal responsibilities. Canadians
now expect the courts to enforce constitutional guarantees of equality
acknowledged under the Charter of Rights and Freedoms. Since the courts
have been assigned such an important constitutional duty, judges
themselves have come under increased scrutiny. While the public may
naively assume neutrality on the part of judges, this book clearly
demonstrates that judges frequently hold common social
prejudices—prejudices that are reflected in the decisions they write.

In order to determine the judiciary’s view of homosexuality, Bruce
MacDougall, a law professor at the University of British Columbia,
analyzed the language of decisions released by judges from 1960 to
mid-1997. He discovered that, even when a decision favors a homosexual
litigant, judges frequently use language that reveals negative attitudes
about homosexuality. This insight shows why the progress of sexual
minorities in establishing their constitutional rights has only
grudgingly been advanced by the judicial system. In the author’s
words, “homosexuality is still very much ‘other’ in the eyes of
judges.” Through a careful textual analysis of 800 decisions,
MacDougall establishes the biases and prejudices expressed by the
arbiters of Canada’s constitutional system.

MacDougall’s justification for his chosen period is quirky, even
cheeky: 1960 is the year MacDougall was born and mid-1997 is the year he
completed his research. While the period under discussion has seen a
social and cultural revolution regarding sexual attitudes (presumably
resulting in shifts in judges’ social biases), MacDougall’s analysis
treats this period as an undifferentiated whole. Opinions from 1960 are
cited alongside opinions from a later period, as if society had not
changed. Another problem, frequent repetition in the analysis, may leave
readers with a sense that the author is belaboring his points.

Despite these concerns, Queer Judgments presents important—even
shocking—evidence about judges’ personal prejudices and their effect
on legal reasoning, decision making, and Canadian society. It should be
read by those interested not only in the history of Canada’s treatment
of sexual minorities, but also in the workings of our legal system.