YEAR/ANNÉE 2004
Bailey, Martha.
“Regulation
of Cohabitation and Marriage in
(January 2004): 153-175.
Ref.: CSA Sociological Abstracts, which provides an abstract that
suggests that same-sex marriage is one of the central issues in the paper.
Bailey, Martha.
“Same-sex Relationships across Borders.” McGill Law Journal 49(4)
(October 2004): 1005-1033.
Ref.: LegalTrac index, which notes in abstract: “Recent developments in
the
law regarding same-sex couples in both
have raised important questions about the recognition of same-sex
relationships across borders.” Article gives some “private international
law
aspects of same-sex relationships in
Additional ref.: CBCA index.
Boyle, Christine.
“The Anti-discrimination Norm in Human Rights and Charter Law: Nixon v.
Vancouver Rape Relief.” University of British Columbia Law Review 37(1)
(March 2004): 31-72.
Kimberly Nixon, a male-to-female transsexual, was rejected for a
training program by Vancouver Rape Relief because apparently it was
claimed she didn’t share the same life experiences as those raised as
girls and women.
Busby, Karen.
“The Queer Sensitive Interveners in the Little Sisters Case: A Response to
Dr. Kendall.” Journal of Homosexuality 47(3-4) (2004): 129-150.
Ref.: PsycINFO index, which provides abstract and notes that article
concerns the interveners in the Supreme Court of Canada case of
Little
Sisters v.
a special issue, “Eclectic Views on Gay Male Pornography: Pornucopia.”
Compiler does not
know if this relates to Christopher Kendall’s Gay Male
Pornography, listed elsehwere. Abstract for Busby article instructs user to
see PsycINFO record 2004-21469-006.
In
the Matter of Section 53 of the Supreme Court Act, R.S.C. 1985, c. S-26: and
in
the Matter of a Reference by the Governor in Council concerning the Proposal
for
an Act respecting Certain Aspects of Legal Capacity for Marriage for Civil
Purposes,
as Set Out in Order in Council P.C. 2003-1055, Dated
(29866): coram: the Right Honourable Beverley McLachlin, P.C….[et al.].
Ottawa: Supreme Court of
(28, 30 p., in English and French)
NOTE that the legal citation to this decision is the following:
Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698
Court
opinion was released
See AMICUS catalogue record no. 32414061.
The user will recall that this document is the response of the Supreme
Court of Canada to questions submitted by the federal government in its
request for Court opinion before legislators proceeded with passage of
same-sex marriage legislation.
The electronic version of the Court’s response was viewed on August 21,
2008, at:
http://scc.lexum.umontreal.ca/en/2004/2004scc79/2004scc79.html
(but no longer at the address given in the AMICUS record cited above).
At the Web site, either English or French texts can be viewed, using the
language toggle.
Note further that a large number of individual AMICUS
catalogue records exist for submissions leading up to the Court’s decision.
No attempt was made to list these individually, but the user may retrieve
many factum references and references to documents of interveners from
the AMICUS catalogue using a TITLE search on the title as given above,
BUT prefaced by the phrase “In the Supreme Court of Canada.” That is to
say, do the title
search beginning as follows: In the Supreme Court of
entry of title needs also to be carried far enough along to permit hits on
items relating to this specific decision.
(So far as the compiler has observed, the common Court File No. 29866
has been noted in each of these various catalogue records, and in some
circumstances it might [?] be possible to search on this number, although
the compiler could not from his own access point).
Note also slight variations in title entries (e.g., c. S-26 and sometimes chap.
S-26; also sometimes the word “and” following the S-26 is omitted in an
AMICUS entry).
The catalogue record for the bilingual July 2003 news release of the Dept.
of Justice which announced reference of questions to the Supreme Court of
Canada is AMICUS catalogue no. 32411213.
This compiler note is not exhaustive of the AMICUS search
possibilities relating to catalogued documents relating to the court decision.
Casswell, Donald G.
“Criminal Code Section 159 – Anal Intercourse – Sexual Orientation.”
Canadian Bar Review 83(1) (May 2004): 217-228.
Ceccherini,
Eleonora, ed.
Sexual Orientation in Canadian Law. Milano: Giuffrè, 2004.
(237 p.; ISBN 8814106118, 9788814106118)
Clark, Campbell, and Makin, Kirk.
“Same-sex Marriage is Upheld: Armed with Supreme Court Ruling, Martin
Will
Move Ahead with Bill to Legalize Gay Unions across
Globe
& Mail [Toronto],
SEE
lengthy entry above in this section, at
Cossman, Brenda.
“Sexuality, Queer Theory, and ‘Feminism After’: Reading and Rereading the
Sexual Subject.” McGill Law Journal 49 (October 2004): 847-876.
Ref.: Index to Canadian Legal Literature.
Craig, Elaine.
“ ‘I Do’ Kiss and Tell : The Subversive Potential of Non-normative Social
Sexual Expression from within Cultural Paradigms.” Dalhousie Law Journal
27(2) (Fall 2004): 403-437.
Ref.:
CPI.Q index expansion adds: “
Criminal Code (hate propaganda) S.C. 2004, c. 14 (Bill C-250)
Assented
to
(See latest version of Criminal Code, R.S.C. 1985, c. C-46, ss. 318, 319
for changes resulting from passage of Bill C-250. Note below provides
some additional detail)
Compiler note: The Act to amend the Criminal Code (hate propaganda)
was first introduced in 2002 as a private member’s bill, Bill C-250, by
NDP Member of Parliament Mr. Svend Robinson. The bill died in 2003,
but was reintroduced in February 2004. Its subsequent passage amended
Criminal Code, R.S.C. 1985, c. C-46, ss. 318 and 319 by including “sexual
orientation” in s. 318(4) in respect of an “identifiable group” and also by
modifying s. 319, at s. 319(3)(b), with respect to defence against the
incitement of hatred based on opinion arising from belief in a religious
text. (Interested user could see also Svend Robinson’s “Mending a Sick
Society,” Briarpatch 32(4) (Dec. 2002): 7 [843words], which concerns the
amendment).
User may find an online copy of the Criminal Code at
http://laws.justice.gc.ca (compiler
viewed
“Statutes by Title” heading at that site).
Within the Criminal Code, ss. 318 and 319 are in “Part VIII: Offences
against the person and reputation,” under subheading “Hate propaganda”.
Passage of the amendment was (predictably) controversial.
(User will recall that section 718.2 of the Criminal Code (in Part XXIII:
Sentencing) also includes “sexual orientation” among those listed
categories in which courts are required to consider bias, prejudice or hate
as aggravating circumstances in criminal sentencing. That change
originated with Bill C-41, An Act to amend the Criminal Code
(sentencing) and other Acts of consequence thereof, which received royal
assent
issue elsewhere, including in the Sociology –Violence / Abuse /
Homophobia section of Gay Canada. There was controversy at that time,
too, regarding the inclusion of “sexual orientation”]).
Elliott, R. Douglas.
“The
Canadian Earthquake: Same-sex Marriage in
Review 38(3) (Spring 2004): 591-620.
findlay, barbara.
“Real Women: Kimberly Nixon v. Vancouver Rape Relief.”
University of British Columbia Law Review 36(1) (Winter 2003): 57-76.
See annotation under Boyle in this section.
Finnis, Elizabeth.
“Sexual Identity, Citizenship and Medical Power of Attorney: Case Illustrations
from
Northern Ontario,
Ref.: CSA Sociological Abstracts, which provides abstract and notes:
“Current analyses of sexual identity & citizenship offer complexity to
debates about what it means to be a citizen in liberal democratic
societies….I argue that attitudes about medical power of attorney are a
lens through which we can examine how lesbians negotiate & experience
citizenship in their daily lives & in medical settings….”
Fisher, John.
“Outlaws or In-laws? : Successes and Challenges in the Struggle for LGBT
Equality.” McGill Law Journal 49(4) (Oct. 2004): 1183+ (26 pages)
Refs.: Expanded Academic ASAP index and LegalTrac index.
From LegalTrac abstract: “In this lecture, the author canvasses the
successes and challenges faced by Canadian sexual minorities over the
last two decades….”
Fisher, John, et al.
Outlaws & Inlaws: Your Guide
to LGBT Rights, Same-sex Relationships
and
Canadian Law. Ottawa:
EGALE
(1 vol., various pagings; ISBN 097344570X)
Friesen, Joe.
“First Gay Divorce Granted.” Globe & Mail [Toronto],
“Gay Couples Win
Says
(550 words).
Ontario Court of Appeal ruling on November 26, 2004 gives “any
member of same-sex union whose partner died after 1985” same
Canada Pension Plan benefits as heterosexual widower. Earlier
ruling by Ontario Superior Court in December 2003 upheld (see, e.g.,
Toronto Star, December 20, 2003, p. A8, for report on that ruling in class
action suit). “It is expected the Justice Department will continue the legal
battle because of the
high stakes in the case.” –quotations from Calgary
Herald electronic article cited.
Geddes, John.
“Tell It to the Court; Canadian Politicians Ask the Judges to Decide.”
Maclean’s,
Gray, Christopher B.
“ ‘The Essence of Marriage’: The Very Idea; Reflection on H. Cyr.”
Revue générale de droit [Université d’Ottawa] 34
(2004) : 493-510.
Ref. : Index to Canadian Legal Literature. One descriptor assigned
is Same-sex marriage.
Hilborn, Terri L.
“Suspension of Teacher for Anti-homosexual Comments Upheld by Supreme
Court of British Columbia.” Education and Law Journal [Toronto] 14(1)
(August 2004): 85-92.
Kempling v. The British Columbia College of Teachers.
Ref.: CBCA index.
Kelly, Fiona.
“Nuclear Norms or Fluid Families? : Incorporating Lesbian and Gay Parents
and Their Children into Canadian Family Law.” Canadian Journal of
Family Law 21(1) (Fall 2004): 133-178.
Kendall, Christopher N. (Christoper Nigel), 1966-
Gay Male Pornography: An Issue of Sex Discrimination. Vancouver: UBC Press,
c2004.
(270 p.; ISBN 0774810769)
Ref. : AMICUS catalogue no. 30493755, which gives
series note : Law and society series (Vancouver, B.C.).
User might also be interested in the following review essays
concerning the Kendall work:
Leslie Green, “Men in the Place of Women, From ‘Butler’ to ‘Little
Sisters’,” Osgoode Hall Law Journal 43(4)(Winter 2005): 473-496;
Donn Short, “Sexually Expressive Materials for Gay Men: Sex
Discrimination or Subversive Potential?” University of British
Columbia Law Review 38(1) (March 2005): 263-272.
See also:
Queen’s Law Journal 31(1) (Fall 2005): 413-418 and
Michelle Evan in University of Notre Dame
Australia Law Review 7 (Dec. 2005) : 127-135.
Kendall, Christopher N.
“Gay Male Pornography and Sexual Violence: A Sex Equality Perspective on
Gay Male Rape and Partner Abuse.” McGill Law Journal 49(4) (Oct. 2004):
877+ (47 pages)
Ref.: Expanded Academic ASAP index.
Leslie, Megan.
“Boys Will Be Girls: Sex Reassignment Surgery and the Ethics of State Funding.”
Dalhousie Journal of Legal Studies 13 (Annual 2004): 239-260.
MacDougall, Bruce.
“The Legally Queer Child.” McGill Law Journal 49(4)(October 2004):
1057+ (35 pages)
Ref.: LegalTrac index, which notes: “This article explores…presumptions
and arguments of Canadian courts in largely denying queer children a
legal presence…[L]egally, queer children deserve a voice….”
Manderson, Desmond, and Yachnin, Paul.
“Love on Trial: Nature, Law, and Same-sex Marriage in the Court of
Shakespeare.” McGill Law Journal 49(3) (August 2004): 475+ (37 pages)
Annotation in Expanded Academic ASAP index: “Shakespeare as
Law Moot Court project, case Attorney General of Canada v. Pears”
McLeod, Christine.
“The
Charter Compliance Act [
pp.
39-55. 3rd ed.; Winnipeg,
2004.
Ref.: Index to Canadian Legal Literature.
Moran, Leslie J.
“The Emotional Dimensions of Lesbian and Gay Demands for Hate Crime
Reform.” McGill Law Journal 49(4) (Oct. 2004): 925+ (25 pages)
Refs: Expanded Academic ASAP index and LegalTrac index.
From LegalTrac index abstract: “Recognition of the emotions
underscoring a demand for law challenges the foundational assumption
about the nature of law...[as] quintessentially associated with reason and
rationality.”
Norrie, Kenneth McK.
“Marriage and Civil Partnership for Same-sex Couples: The International
Imperative.” Journal of International Law & International Relations 1 (1-2)
(Winter 2004/Spring 2005): 249-259.
Ref.: Index to Canadian Legal Literature.
Broader view than normally included in this list.
Papy,
Jacques.
“Les
limites de la notion d’ ‘orientation sexuelle’ dans la protection des
communautés LGBT contre la discrimination.” LL.M. thesis, McGill University,
c2004.
(98 leaves)
Ref.: AMICUS catalogue record no. 34153931, which notes that work
written for the Institute of Comparative Law.
Pickel, Jo-Anne.
“Reframing Dialogues: Toward a Multidimensional Approach to Charter
Dialogue.” S.J.D. dissertation, University of Toronto, 2004.
(287 p.; ISBN 9780612943889)
“…primary objective is to develop a richer and more satisfying
framework for understanding the development of rights found in the
Canadian Charter of Rights and Freedoms….” Broader dimensions are
“unpacked” through “an examination of ongoing debates around the issue
of same-sex
relationship recognition in
ProQuest Dissertation s & Theses,
ProQuest document ID 813768371;
Publication no. AAT NQ94388
Radbord, Joanna, and McCarthy, Martha.
“Marriage (P)reference: Equality, Dignity and Individual Voices.”
National Journal of Constitutional Law (2004): 213-260.
Cases:
EGALE Canada Inc. v.
Same-Sex Marriage, Re (2003), 38 R.F.L. (5th) 32 (B.C.C.A.).
(2004), 246 D.L.R. (4th) 193 (S.C.C.)
Ref. : Index to Canadian Legal Literature.
“Same-sex Couples Win Right to Marry in Quebec.” Globe and Mail [Toronto ed.],
March 20, 2004, p. A8.
Unanimous decision by Quebec Court of Appeal upheld lower court
decision. Quebec now third province, after Ontario and British
Columbia, in which courts have ruled in support of gay marriage. This
ends five-year battle by Montreal couple, Michael Hendricks, and René
Leboeuf. See reference to earlier 2002 Quebec court ruling in LAW, Year
2002 section, below, at Hendricks.
Samson, Remi.
“Oser dire l’homosexualité en droit…et la rendre intelligible. ” McGill Law
Journal 49(4) (Oct. 2004) : 815+ (32 pages)
Ref. : LegalTrac index, which abstract notes author’s outlining of
essentialist and constructivist views of homosexuality “in the context
of the legal debates over recognition of the rights of homosexuals, before
drawing his own conclusions….”
Schmitz, Cristin.
“Judge’s Charter Ruling on Divorce Act Clears Way for First Same-sex Divorce.”
Lawyers Weekly 24, no. 19 (Sept. 2004), p. 1 (2 pages?).
Ref.: Index to Canadian Legal Literature. Normally items from this
newspaper for Canadian lawyers are not included, but exception made
because of this newer development.
Stewart, Monte Neil.
“Judicial Redefinition of Marriage.” Canadian Journal of Family Law 21(1)
(Fall 2004): 11-132.
Ref.: Index to Canadian Legal Literature, which notes cases
EGALE Canada Inc. v.
Toronto (City), and Goodridge v. Department
of Public Health [
Stychin, Carl F.
“Same-sex Sexualities and the Globalization of Human Rights Discourse.”
McGill Law Journal 49(4) (Oct. 2004): 951+ (18 pages)
Refs.: Expanded Academic ASAP index and LegalTrac index.
International in scope. See abstract in LegalTrac, which mentions
a “double movement of globalization,” of human rights and of
same-sex sexualities, which “have the potential to conflict with…
each other….”
Van Kralingen, Alex.
“The Dialogic Saga of Same-sex Marriage: EGALE, Halpern, and the
Relationship between Suspended Declarations and Productive Political Discourse
about Rights.” University of Toronto Faculty of Law Review 62(2)
(Spring 2004): 149-192.
Welstead, Mary.
“Invitation to a Marriage.” Journal of Social Welfare & Family Law 26(2)
(June 2004): 161-169.
Wintemute, Robert.
“Sexual Orientation and the Charter: The Achievement of Formal Legal
Equality (1985-2005) and Its Limits.” McGill Law Journal 49(4)
(October 2004): 1143+ (38 pages)
Zanghellini, Aleardro.
“Is Little Sisters Just Butler’s Little Sister?” University of British Columbia
Law Review 37(2) (July 2004): 407-447.