A Veritable Social Revolution

by Jean-Guy Bruneau

Nicole LaViolette Law: A tool for social change

WHILE, AS A JURIST, SHE HAS LONG BEEN CONVINCED OF THE INEVITABLE acceptance of gay marriage, Nicole LaViolette, a professor in the Faculty of Law, Common Law Section (French language program), is amazed at the speed with which this acceptance is taking place.

Indeed, within the next two years Canada could become the third country in the world, after the Netherlands and Belgium, to officially accord legal status to the marriage between two people of the same sex. Professor LaViolette feels that the Canadian courts have adopted an extremely avant-garde position on this issue, one that has quite recently become a highly charged debate in both public and political forums.

And with good reason. “It’s a veritable social revolution,” declares Professor LaViolette. “Just imagine; over the course of barely thirty years, we have gone from decriminalizing homosexual relations to accepting gay marriage. By comparison, it took hundreds of years to abolish slavery.”

thanks to the Charter
Professor LaViolette explains that the long road toward same-sex marriage began in 1968 when Pierre Elliott Trudeau successfully guided his omnibus law that removed homosexual relations from the penal code. Who can forget his famous declaration, “The Government has no business in the bedrooms of the nation.” However, it was the adoption of the Canadian Charter of Rights and Freedoms in 1985 that paved the way for dramatic social change.

“The Charter changed our legal world. It revolutionized domestic Canadian law. Without the Charter, we would not be where we are today,” says Professor LaViolette. In reviewing the background of the debate, she notes that the political world lagged behind. In light of government refusal to move this issue forward, gay and lesbian couples in Ontario, British Columbia, and Quebec reached the conclusion that refusal to marry same-sex couples constituted a violation of the Charter. Soon after, the Ontario Court of Appeal took up the challenge, even declaring that same-sex marriage was effective immediately.

In the end, the federal government opted not to appeal, instead submitting the matter to the Supreme Court for an opinion and tabling draft legislation on gay marriage.

Professor LaViolette is convinced that the Supreme Court will support the judgements of the lower courts and, one day, Parliament will pass the bill. “In the meanwhile, gay and lesbian couples continue to marry in Ontario and British Columbia. In theory, what will happen if the bill fails to pass?” she asks. She cannot envision backtracking on this issue.

As for the Church’s fierce opposition to the federal government’s draft bill, Professor LaViolette thinks that the churches are attempting to preserve this final bastion in which, exceptionally, they are empowered to act on behalf of the State in a process that is both religious and legal.

“If we are a secular society, it is time to act accordingly and require marriages to be performed by a government official.” She continues, “This in no way affects the Church’s right to continue to celebrate religious marriage ceremonies.”

keen interest in social change
A graduate of Carleton University, the University of Ottawa, and Cambridge University (United Kingdom), Nicole LaViolette has authored numerous research papers on human rights, international humanitarian law, and refugee law from both Canadian and international legal perspectives.

In 2001, she collaborated with the Law Commission of Canada to publish a major study on registered common law marriages. Her conclusion: “This formula should not replace marriage, but it could be considered by some couples who do not necessarily wish to marry. “But,” she is quick to add, “to avoid any form of discrimination, this type of union should be available to both heterosexuals and homosexuals.”

Recently, Professor LaViolette also published a research paper for the Canadian Senate regarding international human rights treaties; however, Canada is not yet a party to those treaties. Her study is the first survey of its kind in the country. Says Professor LaViolette, “It is quite surprising that Canada, widely perceived as a progressive country, has not ratified some thirty human rights treaties.”

This professor and lawyer is continuously guided in her studies and research by a single premise — the close link between law and social change.