June 24th, 2024. It’s a balmy evening in downtown Toronto, and all the Church Street bars are playing the Oilers game. The patios are busier than usual, the collective chatter a degree louder, and there’s a palpable sense of anxious anticipation in the air, a feeling that something is finally about to happen. In a couple hours, we’ll find out if a curse that has lasted for well over my lifetime will be lifted — a Canadian team bringing the Stanley Cup home after 31 long years.
I’ve got the Oilers on my mind today, but a few other things too. Today is a chaotic confluence of temporal landmarks. In Toronto, Pride season is in full-swing. My placement at Egale Canada — the country’s leading 2SLGBTQI rights organization — has overlapped with what a colleague has humorously dubbed “tax season for the gays”.[1]
And back in my adopted home — in Quebec — it is Saint-Jean-Baptiste Day. My sovereigntist friends have started getting all nationalistic in the group chat again. I kindly remind one of them that Labrador is not, in fact, part of Quebec. Yet a part of me is wishing I was on the other side of the Windsor-Quebec corridor, a local craft beer in hand, arguing loudly in my third language while some band from Shawinigan plays folk songs in the background.
I’ve also had a couple drinks at our Pride month staff party, so my brain is thinking a lot of Big Thoughts.
**
Six weeks in
I jumped at the opportunity to pursue an internship in Toronto. And in some respects, it’s been mostly what I expected. One year of law school has made me more inclined to introversion. Though any new city is an adjustment, the only genuine cultural lessons I’ve picked up is that white sneakers can go with a suit, but you really do need to keep them squeaky clean (people notice), and it’s always better if the colour of your belt matches that of your shoes. It’s hardly navigating the Tanbi mangroves on the Gambia River, but that’s fine.
I’d also been well-warned that human rights work isn’t glamorous. My trips to Bay Street have been limited to shadowing my boss at presentations to large firms. I wasn’t expecting much pomp and circumstance, and that’s just as well.
The one thing that has caught me off guard, however, is how, after a year of law school, I am increasingly struggling to activate a sense of indignation at injustice. In high school, and even in my first undergrad, there were days I would wake up pissed. Something was wrong in the world, and I was going to go out there and fix it. Now I can’t even get angry anymore. Instead, my values have found a newer, more sterile terminology. “Trampling over human rights” has become “section 33”, while what I used to call the “politicization of marginalized people’s identities for political gain” is now simply “Policy 713” or “UR Pride”.[2]
It’s not just the wording that has changed, but the posture. Offence has given way to defence. Perhaps this is the consequence of my self-imposed transition from wannabe student activist to wannabe Very Serious jurist — less Thunberg and more Starmer[3], less megaphone and more affidavit. To that end, a political theory professor I took in my final semester of undergrad (the class was Post-Marxism and the Frankfurt School, but if a future employer is reading this, I enrolled in Liberalism that semester as well, rest easy) warned me that lawyers cannot change the world; they can only stop bad things from happening.
I don’t know if she speaks a universal truth. And I don’t know if I have changed, or the spaces I increasingly frequent are changing me. Yet there’s no doubt that the Canadian 2SGLBTQI legal fight, much like the Edmonton Oilers (please admire my ability to tenuously combine these two experiences into one… I warned you that these were Big Thoughts) are both, at this moment at least, getting used to relying on defence.
Sportsnet tells us that Stuart Skinner’s goaltending, not McDavid or Draisatl, will be the ‘Key to the Match’, and the Oilers’ playoff penalty kill stands at a league-best 94%. In the coming years, a similar success rate in front of the courts will be required to preserve the hard-fought wins of the 2SLGBTQI community, and ensure all queer children and adults in Canada can explore and live openly and freely.
**
Shifting towards defence
It wasn’t always like this. Flipping through Egale’s records tells a story about how the nature of Canada’s 2SLGBTQI community’s legal battles has evolved, moving away from offence and towards defence. Founded in the mid-1980s, Egale was established in large part to advocate for equal marriage in Canada. At one point, its name was an acronym: Equality for Gays And Lesbians Everywhere (E.G.A.L.E.).[4] After decades of political and legal advocacy, the dam broke from 2003—2005, where one by one, starting with the Ontario Court of Appeal’s landmark decision in Halpern[5], and concluding with the passage of the Martin government’s Civil Marriage Act, provincial courts and the federal government paved the way for equal marriage. Having won its most significant legal fight, and after decades of being on the offensive, Egale could move towards doubling down on its other vitally important public education and awareness programs.[6]
Fast-forward to last April, when the Government of New Brunswick, led by Premier Blaine Higgs, publicly announced that a hitherto little-known provincial policy, Policy 713, was being placed under review. The result of that review was to forbid teachers from using the preferred names and pronouns of students under 16, absent parental consent. Saskatchewan followed suit with a similar directive in August 2023. After the first-instance judge granted an injunction to halt the policy’s application pending a Charter challenge, Premier Scott Moe took the exceptional step of recalling the provincial legislature to adopt the so-called “Parents’ Bill of Rights”, inscribing the proposed changes into law. Most surprisingly, the government invoked the notwithstanding clause for only the third time in Saskatchewan’s history. These unusual steps not only immunized the bill from being rendered inoperative by the courts, but it signalled to the wider public that there was something urgent and nefarious about queer and trans youth exploring their identities at school.[7]
With active court cases in two jurisdictions, even more egregious measures announced by Alberta Premier Danielle Smith, and the possibility of new threats coming from Québec’s so-called comité des sages, the judiciary is being asked whether to circumscribe, rather than expand, the scope of rights afforded to members of the 2SLGBTQ+ community. And for the first time in a while, Egale is learning how to play defence. Instead of using the courts to obtain rights, the aim is now to protect hard-won gains.
This battle isn’t just being waged in a court of law. In a landscape where the notwithstanding clause is increasingly used, the court of public opinion matters even more. This too makes for grim reading. According to polling by Ipsos, support for LGBT+ people being open about their sexual orientation in Canada dropped from 61% in 2021 to 50% in 2024; support for LGBT+ people displaying affection in public dropped from 48% to 40%.[8] Similar trends can be observed globally. Part of this decline can be attributed to the rise of the international anti-gender movement, a coalition of right-wing/far-right activists seeking to “undermine political and social gains made by local and international feminist and SOGIE (Sexual Orientation and Gender Identity Expression) rights advocacy”.[9] Canada is not immune from these global trends.
**
The stakes for Canada
Somewhere on my social media, the “Oui et c’est possible” and “La séparation? Non!” crowd are fighting again. But my disillusion with Canada tonight is of a different, yet familiar, nature.
I was 15 when I phone-banked for a political candidate for the first time.[10] One afternoon, the campaign had become caught up in a nasty public debate about whether teachers should be allowed to wear religious symbols at work. I remember getting an earful on the phones from voters who were both angry and fearful that their communities would be invaded by people wearing niqabs. I remember political candidates manipulating and stoking these fears, and knowingly spreading mis- and disinformation. And I remember thinking then that, although my candidate would inevitably lose, the courts were going to sort it out. This kind of discrimination may be politically permissible, but it was – or so I thought – definitely illegal. Many years later, in large part due to the notwithstanding clause, my Muslim, Sikh, and Jewish friends and neighbours are still asking the courts to reach that conclusion.[11]
This is the kind of stuff that used to make me angry.
Nearly a decade later, as provincial governments run roughshod over the rights of yet another small but vulnerable minority group, unrestrained by courts of law or of public opinion, I struggle to tap into anger. Instead, I just feel disenchanted.[12] Is Canada a source of quiet pride, or of deeper shame? An idea worth fighting for, or an illusion holding us back? And is there not something deeply hollow about our entrenched human rights instrument — our Charter — promising freedom of religion and freedom from discrimination, yet looking the other way for certain religious minorities or queer kids?
I’ve long stopped subscribing to the “the country agreeing with everything I believe in is a necessary condition to me believing in it” school of thought, but I can’t help but feel – albeit in a somewhat removed sense – that the Charter isn’t doing what it’s supposed to do. And in turn, the country doesn’t stand for what it is supposed to stand for.
Is there a way back? My boss, who has worked in both the United States and for the Canadian Minister of Justice, is keen on highlighting the national-cultural dynamics at play. Our demureness as Canadians leads to less funding for public interest advocacy work, stretching already scarce resources very thin. And our collective sense of deference to courts or to the state means that once rights are won — or lost — it is more difficult to fight back. Even our sense of exceptionalism, pronounced more subtly, can imperil. Though we do not thump our chests and romanticize cold beer, Friday nights, and the Stars and Stripes, the quiet satisfaction that things are better here (and they sometimes really are) runs the risk of obscuring our ability to notice felt harms and real dangers — and then do something about it.
I don’t know if the answer is to be angrier, louder, and more critical. Perhaps it is safer to simply weather the storm, see out the game, and go on the offensive again when the time is right. But regardless of what strategy one takes, there is something important at stake. The challenge to Quebec’s Bill 21 and UR Pride (the challenge to Saskatchewan’s Parental Bill of Rights) could both make their way to the Supreme Court of Canada shortly — perhaps even at around the same time. Beneath the important but technical legal debate about s. 33, pre-emptive use, and declaratory relief lies competing philosophies about our country and the rights we hold as citizens.[13] The increased use of the notwithstanding clause (interestingly referred to as the “parliamentary sovereignty clause” by Premier Legault), [14] combined with the absence of great public backlash, hastens the fear that most of our Charter rights could become conditional on the support of the government of the day and of society’s dominant groups. In this sense, queer children have been turned into one of the first test subjects of a populist reading of our Constitution – and of who we are as a country.
**
Meanwhile, in South Florida, the celebration has begun. Skinner let in a softie; the mythical penalty kill did its job, but the Panthers scored four seconds later. When you’re playing defence, just one mistake is enough for defeat. I quietly shuffle out of the bar. There’ll be no rioting in the streets — this is Leafs Country, after all — but there are no hoots and hollers, and the early evening buzz is replaced by a quiet late night’s whisper. Eventually, I’m just left with my Big Thoughts – and worries – about what lies ahead.
[1] My boss’ alarmingly busy schedule of speaking engagements and panel presentations suggests that if you’re anybody who is somebody in the Toronto queer scene, a part of you is deeply impatient for the month to come to an end.
[2] More on this later.
[3] USA Today, “Britain’s new premier, Keir Starmer, wins huge mandate to be ‘boring’”, https://www.usatoday.com/story/news/world/2024/07/05/uk-election-results-2024-keir-starmer-wins/74278218007/. A socialist human rights lawyer in his younger days, Starmer eventually become a “boring” senior civil servant and has been elected British Prime Minister, on most accounts, because people wanted boring.
[4] The acronym is no longer used. The current use of the name “Egale” is meant to evoke equality for the whole 2SLGBTQ+ community, as in the French word égale (equal).
[5] Halpern v. Canada (Attorney General), 2003 CanLII 26403 (ONCA). (Holding that denying equal marriage to LGBTQ+ couples violated the Canadian Charter of Rights and Freedoms’ equality provisions). 8 other provincial courts reached similar conclusions shortly afterwards, and the Supreme Court of Canada’s unanimous December 2004 decision in Reference re Same-Sex Marriage, 2004 SCC 79 (CanLII) provided judicial cover for the Martin government’s legislated changes to the definition of marriage, which applied to the whole country, the following year. Egale intervened in nearly all of these landmark cases.
[6] This isn’t to say that there wasn’t important litigation throughout this time to which Egale was an intervenor or a party. For instance, Egale played an important role in helping discern the scope of discrimination on the basis of sexual orientation under the Charter.
[7] The Economist, “The Culture Wars Have Come to Canada”, October 12th, 2023, https://www.economist.com/the-americas/2023/10/12/the-culture-wars-have-come-to-canada.
[8] Ipsos Canada, “Canadians Support Protection of the LGBTQ+ Community, But Support Declining”, June 1st 2024, https://www.ipsos.com/en-ca/canadians-support-protection-lgbt-community-but-support-declining.
[9] United Nations Research Institute for Social Development, “The International Anti-Gender Movement”, June 2023, https://cdn.unrisd.org/assets/library/papers/pdf-files/2023/wp-2023-4-anti-gender-movement.pdf at 3.
[10] Yes, I later did a political science degree. No, I didn’t get invited to any parties when I was 15.
[11] See: Organisation mondiale sikhe du Canada c. Procureur général du Québec, 2024 QCCA 254 (CanLII), <https://canlii.ca/t/k358h>. A Leave to Appeal motion has been filed with the Supreme Court of Canada.
[12] I should add that the choice to centre myself in this story is because this is a blog about my experience as an intern. The human experiences that matter most in these contexts are, of course, those of people most directly affected. Suffice it to say that the human toll of “playing defence” on the lawyers, community activists, and students whose identities are most directly targeted should not be understated.
[13] A related issue is whether declaratory relief – in the notwithstanding clause context, a statement by the Court that a statute does indeed violate ss. 2 or 7—15 of the Charter, even if it cannot be rendered inoperative per s. 33 – will actually affect public opinion and governmental decision-making.
[14] François Legault, Twitter, February 29th, 2024, https://twitter.com/francoislegault/status/1763317304928993377.