Historica Canada released a new Heritage Minute for Pride Month. Featuring James Egan and John Norris Nesbit, it tells the important story of two brave men who fought one of the key legal fights for equal rights for same-sex couples. They took their fight to the Supreme Court of Canada, and while they lost on their main point (the entitlement of same-sex spouses to a spousal allowance under the Old Age Security Act), the Supremes still made the crucial finding that sexual orientation is an analogous ground of discrimination under the Charter of Rights and Freedoms.
In the week leading up to the Pride Festival and parade, we here at Spark LLP find ourselves again thinking about the important role that lawyers play in advancing civil rights, justice, equality, and personal freedom. This isn’t to say that we don’t recognize the personal bravery and commitment of litigants like Mr. Egan and Mr. Nesbit and the toll that it takes to be a litigant in a high-profile, high-stakes case like this. We understand the strength and courage required to front such a fight and expose yourself and your family to the public eye on a controversial matter of principle. We also understand the importance of community organizers and the political pressure they bring to bear, organizing rallies, circulating and signing petitions, supporting political candidates, and other hard work.
But we’re lawyers. And so when we saw the Heritage Minute, we started thinking about the lawyer behind the Minute.
Joseph Arvay argued James Egan’s case at the Federal Court of Appeal and the Supreme Court of Canada. Arvay is a litigator’s litigator: the list of constitutional cases he has argued is amazing. On the theme of LGBTQ2 rights, Arvay also argued the Little Sisters case from trial through to the Supreme Court of Canada. Often, he has argued his constitutional cases pro bono, or at least without being certain that he’ll be paid, relying on his commercial disputes to “pay the bills.”
It takes a lot of courage to be the litigant (and the spouse of a litigant) in any drawn-out legal proceeding, and even more so in a civil rights case. James Egan and John Norris Nesbit deserve our recognition and respect, as do Delwin Vriend, Michael Stark and Michael Leshner, Marc Hall, James Deva and Guy Smythe, Joanne Mitchell and Lorraine McFarland, and many other members of the LGBTQ2 community who have been willing to expend the time and emotional energy and make the sacrifices necessary to advance same-sex rights in Canada.
But spare a moment or two to remember and thank the lawyers like Joseph Arvay. They take risks, too. The outcomes of these cases are far from certain at the beginnings, and litigating constitutional cases takes a monumental amount of time and effort and financial resources, not to mention personal dedication.
Happy Pride, everyone!
Jeff is a Co-Founder and Lawyer at Spark LLP. In addition to being a Bay Street refugee, Jeff is a commercial litigator, managing disputes for clients of all shapes and sizes.