Guest Commentary

Roy McMurtry

An Unpopular Decision

(Editor’s note: In 2003 the Ontario Court of Appeal struck down a ban on same-sex marriage as unconstitutional. The ruling came only four years after the Commons voted 216 to 55 to uphold the traditional definition of marriage. Chief Justice Roy McMurtry recounted those years in a June 1, 2011 interview with Blacklock’s publisher Holly Doan. Following is a transcription of his remarks)

There’s been a lot of criticism of so-called judicial activism. This is but one example. They said we were reckless. I realized the sky was not going to fall. I mean, there are times when the courts have to act.

I do have a member of my family who lives in a same-sex relationship and has for a number of years, but they have no interest in getting married. So it wasn’t any gift.

The decision would be unpopular with many of my own contemporaries and that didn’t surprise me in the slightest. I know it’s still very much an issue with some of my own friends, those of us who’re getting a little elderly.

I remember a couple of them even stopped talking to me, not that I cared very much, when our decision came out in 2003. The reason I know they stopped talking to me is that they told other people they were not going to have anything to do with me. The odd person whose opinion I respect greatly would say to me, “You know, I think what you’ve done has somehow diminished the importance of my own marriage.”

My good friend, the former prime minister Jean Chretien, wasn’t particularly happy. We’ve been friends for many years. On a few occasions in social company he brings up the subject.

Even from our gay and lesbian friends, they didn’t seem to want to talk about it very much. It was an issue that was I think unconscionably delayed as far as public policy is concerned.  But fortunately we’ve come a long way in the last 15 or 20 years.

The time was long past when some of these issues should’ve been dealt with. There’s nothing I would’ve done any differently. I think the fact that this has only happened in relevantly recent years is just an example of the discrimination against that community that led to many people quite frankly simply wanting to remain in the closet.

To me it was an issue we didn’t need to go on debating indefinitely. The Charter Of Rights in Canada is all about minority rights, not majority rights. The idea that Parliament wants to deal with all these difficult issues is simply a fiction. I think the reason it didn’t happen before was there was so much discrimination.

I’ve had gay couples stop me on the street to thank me for the decision but at the same time saying they have no particular interest in getting married. The fact that they can gives them a sense of equality and self-respect and dignity that they didn’t have before.

Canadian evolution of thought is still continuing. I expect if you took a public opinion poll there would be a very significant percentage of Canadians still opposed to same-sex marriage. I think it’s become largely a generational issue.

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