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Constitutional Forum. Volume 10, Number 3 (1999), p. 59-64.


In the 1990s, the Supreme Court of Canada twice found ways to avoid dealing with the implications of anti-discrimination law for the rights of gay and lesbian couples. In Mossop, a majority of the Court fashioned a ruling that amounted to a postponement of an engagement with the question of whether the law requires the recognition of gay family status. In Egan a 5-4 majority of the Court bought legislatures some additional time to come to grips with the "novel concept" of conferring equality rights on same-sex couples. No doubt one reason for the Court's equivocation was the large gap that existed between the logical requirements of equality principles and the exclusion of gay and lesbian couples from a multitude of laws dealing with the rights and responsibilities of family members. By 1999, a pattern of favourable rulings from lower courts and administrative tribunals, changes in the membership of the Court, and a steady increase in public support for the recognition of the rights of gay and lesbian couples, combined to create the conditions in which the Court was emboldened to start closing the gap between constitutional promise and legislative reality. In M. v. H. the essence of the message the Court sent to legislators was: time to clean up your Acts.

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