[133]Section 9 of the Constitution is unambiguous: discrimination on the grounds of being gay or lesbian, is presumptively unfair and a violation of fundamental rights. This judgment holds that in determining the normative limits of permissible sexual conduct, homosexual erotic activity must be treated on an equal basis with heterosexual, in other words, that the same-sex quality of the conduct must not be a consideration in determining where and how the law should intervene. Commentators have suggested that respect for the equality principle goes further in two respects. The first is that the gay and lesbian community must have full access to decision-making on the questions at issue, so that their experiences, sense of right and wrong and proposals for effective law-making are given equal consideration when the outcome is determined[1]. Secondly, the selection
- ↑ The theme of equality of voice is brought out by Dworkin in “Equality, Democracy and Constitution” (1990) Vol XXVIII, No. 2 Alberta Law Review 324 at page 337–41 where he argues that:
“In a genuine democracy, the people govern not statistically but communally … [w]hen we insist that a genuine democracy must treat everyone with equal concern, we take a decisive step towards a deeper form of collective action in which ‘we the people’ is understood to comprise not a majority but everyone acting communally … but the idea that in an integrated community the collective life cannot include moulding the judgments of its individual members as distinct from what they do, has a distinct near-definitional importance because it sets minimal conditions for any community, of any kind, that aspires to integration rather than to monolith … If the collective ambition is selective and discriminatory—if it aims only to eliminate certain beliefs collectively judged wrong or degrading—then it destroys integration for those citizens who are the objects of reform …”
Trakman argues similarly in “Section 15: Equality? Where” (1995) 6:4 Constitutional Forum 112 at 121.
“If Section 15 [the equality clause in the Charter of Rights] has meaning, that meaning resides in the condition of communal life to which equality is directed. That condition presupposes that all persons within society are entitled to participate in that communal life with comparative equality. This condition of equality does not require that everyone share exactly equally in the social ‘good’. Equality entitles different segments of society to enjoy different qualities of lives with comparative, not symmetrical, equality. Comparative equality also means that no one segment of society is entitled to define the quality of the ‘good’ life for all in the image of itself. Whatever its object, the legislature in a democratic society is disentitled to identify itself with the interests of select communities so as to produce comparative inequality for other communities.”
