User:Wuzzy/gay rights in Canada

Canada’s protection of the rights of LGBT people is currently one of the most complete in the world. However, there is a powerful anti-LGBT rights movement and the federal government plans to attempt to revert the most recent development, the legal recognition of same-sex marriage.

Constitutional rights

Enforcement mechanism

The rights of LGBT Canadians are now nearly as well protected as those of other Canadians largely due to several court decisions decided under Section 15 of the Canadian Charter of Rights and Freedoms that was included in the Constitution of Canada in 1982, with Section 15 coming into effect in 1985.

Some of the cases were funded under the federal government's Court Challenges Program, which in 1985 was expanded to fund test cases challenging federal legislation in relation to the equality rights garanteed by the Charter. There has also been some funding to challenge provincial laws under a variety of programs, but its availability has varied considerably from province to province.

Equality rights

The Constitution of Canada does not explicitly grant or deny any right to LGBT people, and Section 15 of the Charter prohibits the main types of discrimination to which LGBT Canadians may be subject. Section 15(1) reads:

"Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."

Section 15 was written so as to protect against discrimination generally, with the "enumerated" grounds of prohibited discrimination (race, sex, etc.) being only examples instead of a comprehensive list. In 1995, in Egan v. Canada, the Supreme Court of Canada recognized that sexual orientation was implicitly included in section 15 as an "analogous ground."

The grounds "sex" and "physical disability," have been interpreted to include transsexuality and HIV/AIDS (see discussion below).

Section 15 applies to all laws and law enforcement (including government programs defined by laws) by all governments in Canada, but the Charter does not give rights against the private sector. For example, a discrimination complaint against a restaurant would need to be filed under a human rights act, not the Charter.

Other rights and freedoms

The Charter expressly garantees the right to life, liberty and security of the person, but does not expresssly garantee sexual freedom, the right to privacy or the right to "the pursuit of happiness." The Constitution expressly garantees freedom of religion and the right to denominational schools, without requiring the separation of church and state. The overall effect is that religious freedom, practices, beliefs, values and institutions are privileged over sexual freedom, practices, values and non-religious organizations. This has tended to limit the rights and social standing of LGBT Canadians.

Although certain comments in Rodriguez v. British Columbia (Attorney General) (to the effect that security of the person encompasses personal autonomy, control over one's physical and psychological integrity, and basic human dignity) halm I would interpret the comments in Rodriguez as carving out for protection a broader area than just physical security.

Exceptions

The entire Charter is subject to a general exception in section 1 that allows "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The Oakes Test sets out the Supreme Court of Canada's interpretation of this exception.

In addition, section 15 and a few other Charter sections are subject to the "notwithstanding clause" of the Charter that allows governments to declare that a law is exempt from the Charter for up to five years, which exemption may be renewed any number of times. In 2000, Alberta amended its Marriage Act to define marriage as being between a man and a woman. The law included a notwithstanding clause, but the amendment was nevertheless invalid since the capacity to marry is a matter of exclusive federal jurisdiction according to the constitution. The notwithstanding clause can only be used to make exceptions to the Charter; it cannot change the federal division of powers. In any case, the five year exemption period expired in 2005.

The notwithstanding clause has never being used by the federal government; it is generally believed that this is because it would constitute a politically embarassing admission that the law in question violated human rights. On December 15, 2005, before his party formed the new government, Prime Minister Stephen Harper stated that his government would resubmit the same-sex marriage issue to Parliament without relying on the notwithstanding clause, but his Justice Minister, Vic Toews, has stated in the past that he supported the use of the notwithstanding clause in some cases.

Freedom from discrimination in employment, housing and public services

"March of Hearts" rally for same-sex marriage in Canada on Parliament Hill in Ottawa, March 6, 2004

Enforcement mechanism

The federal government and every province and territory in Canada has a human rights act that prohibits discrimination and harassment on several grounds (e.g. race, sex, religion) in private and public sector employment, housing, public services and publicity. Some acts also apply to additional activities. Human rights acts are quasi-constitutional laws that override ordinary laws as well as regulations, contacts and collective agreements. They are typically enforced by human rights commissions and tribunals through a complaint investigation, conciliation and arbitration process that is slow, but free, and includes protection against retaliation. A lawyer is not required.

Grounds of prohibited discrimination

In 1977, the Quebec Charter of Rights and Freedoms, which is both a charter of rights and a human rights act, was amended to prohibit discrimination based on sexual orientation. Thus, the province of Quebec became the first jurisdiction in the world larger than a city or county to prohibit sexual orientation discrimination in the private and public sectors. Today, "sexual orientation" is explicitly mentioned as a ground of prohibited discrimination in the human rights acts of all jurisdictions except Alberta, where, as a result of the Vriend case, the act must nevertheless be read and applied as if "sexual orientation" were mentioned.

The Yukon Human Rights Act defines "sexual orientation" as "heterosexual, homosexual and bisexual and refers only to consenting adults acting within the law.". Sexual orientation is not defined in any other human rights act, but is widely interpreted as meaning heterosexuality, homosexuality and bisexuality. It does not include transsexuality or transgendered people. The Federal Court of Canada has stated that sexual orientation "is a precise legal concept that deals specifically with an individual's preference in terms of gender" in sexual relationships, and is not vague or overly broad. The Ontario Human Rights Commission has adopted the following definition:

"Sexual orientation is more than simply a 'status' that an individual possesses; it is an immutable personal characteristic that forms part of an individual’s core identity. Sexual orientation encompasses the range of human sexuality from gay and lesbian to bisexual and heterosexual orientations."

All human rights laws in Canada also explicitly prohibit discrimination based on disability, which has been interpreted to include AIDS, ARC and being HIV positive, and membership in a high-risk group for HIV infection.

All Canadian human rights laws probably also prohibit discrimination against pre-operative, transitioning and post-operative transsexual persons, though the protection is explicit only in the Northwest Territories, where "gender identity" is explicitly listed as a ground in the human rights act. In Manitoba, transsexual persons are likely protected by the Human Rights Code under the enumerated grounds "sex" or "gender-determined characteristics" or as an unenumerated ground "gender identity" under section 9(1)(a) of the Code. In addition, human rights commissions consider that sex discrimination includes discrimination based on transsexuality at the federal level and in Quebec, and discrimination based on transgenderism generally (including transsexuality) in British Columbia and Ontario.

"Gender identity" is not defined in any human rights act, but the Ontario Human Rights Commission has defined it as follows:

Gender identity is linked to an individual’s intrinsic sense of self and, particularly the sense of being male or female. Gender identity may or may not conform to a person's birth assigned sex. The personal characteristics that are associated with gender identity include self-image, physical and biological appearance, expression, behaviour and conduct, as they relate to gender.

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Individuals whose birth-assigned sex does not conform to their gender identity include transsexuals, transgenderists, intersexed persons and cross-dressers. A person’s gender identity is fundamentally different from and not determinative of their sexual orientation.

While it is probable that discrimination based on transsexuality is prohibited throughout Canada, it is unclear whether discrimination against other transgendered persons is prohibited. There is no case-law stating that it is a form of sex discrimination (as of February 2006), but there is jurisprudence that it is not a form of "sexual orientation" discrimination. The human rights commissions of British Columbia and Ontarioconsider that sex discrimination includes discrimination against transgendered persons generally.

Activities where equality guaranteed

Accordingly, discrimination, including harassment, based on real or perceived sexual orientation or HIV/AIDS (and probably transsexuality and possibly transgenderism) is prohibited throughout Canada in private and public sector employment, housing, services provided to the public and publicity. All aspects of employment are covered, including benefits for spouses and long-term partners. Examples of services include credit, insurance, government programs, hotels and schools open to the public. Schools open to the public are liable for anti-gay name-calling and bullying by students or staff. LGB Canadians have been allowed to serve in the military since the Douglas case was settled in 1992.

Prohibited discrimination occurs not only when someone is treated less favorably or is harassed based on a prohibited ground, but also when a uniform policy or practice has a perhaps unintended disproportionately adverse effect based on the ground. This is called "adverse effect discrimination." For example, it might in theory be discriminatory for schools open to the public to require parental consent for student participation in all school clubs, assuming that students are less likely to ask for or get permission to participate in Gay-Straight Alliance clubs. use history textbooks that omit the sexual orientation of important historical figures, thus giving the impression that they were all heterosexual, thus failing to provide an equally relevant education service to LGBT students.

Exceptions

Human rights acts have no exceptions specifically for sexual orientation or gender identity, except in Saskatchewan, where owners who reside in one unit of a duplex may discriminate on the basis of sex and sexual orientation with respect to the tenants of the other unit, and in the Yukon, where the protection against sexual orientation discrimination only applies to "consenting adults acting within the law.". To the extent that the Yukon wording means that minors are not protected against anti-gay discrimination, its constitutionality is dubious as it appears to be inconsistent with the Vriend case and the prohibition of age discrimination in section 15 of the Charter.

However, human rights acts typically include an exception for "bona fide requirements" or qualifications that applies to most grounds (e.g. sex, sexual orientation, disability), but only when the stringent requirements of the Meiorin Test are met.

Since, human rights acts are quasi-constitutional laws, it is not possible for job applicants or unions, for example, to sign away equality rights. However, other laws may explicitly say that they apply notwithstanding a human rights act.

Results

Despite these protections, discrimination against LGBT people is fairly common in Canada. Yet complaints based on sexual orientation represent a small proportion of the complaints filed under human rights acts. This is believed to be because LGBT Canadians disproportionately avoid filing human rights complaints since the complaint process would tend to further disclose their sexual orientation and thus expose them to further discrimination. Most LGBT Canadians avoid discrimination by remaining entirely or partly closeted.

Schools and other educational institutions

Some schools have Gay-Straight Alliances or similar groups to counter homophobia and bullying and provide support for LGBT students in school.

The rights of LGBT students and staff in an educational institution vary considerably depending on whether the institution is religious and/or open to the public, since human rights acts do not prohibit discrimination against pupils of private schools and the Charter does not prohibit discrimination by churches, associations and businesses, while section 2 of the Charter protects freedom of religion and section 93 of the Constitution recognizes the right to denominational schools in certain cases.

Religious educational institutions may in many cases discriminate based on sexual orientation against students and staff according to religious doctrine. Nevertheless, if they rent facilities to the general public on a commercial basis without regard to their religion, they may not refuse to rent them to LGBT groups

However, most educational institutions, including privately-owned schools open to the general public, are public services. They are subject to human rights acts and are strictly required to not discriminate against staff or students based on all the prohibited grounds, including sexual orientation, HIV/AIDS (and probably transsexuality and possibly transgenderism, see Grounds of prohibited discrimination above). They are strictly liable for harassment, name-calling and bullying of students and staff by staff on these grounds. In addition, as a result of the Jubran decision, they are liable for most such behaviour by students. They may be liable for anti-gay bullying even if the victim is not gay, nor believed to be (e.g. when a bully knowingly makes a false claim that a girl is a lesbian so that she will be ostracized or bullied by others or pressured to have sex with a boy to prove otherwise).

Furthermore, it may not be enough for schools to progressively discipline bullies when this is ineffective. Schools are responsible for providing an educational environment that is free from discriminatory harassment, and this may require them to provide "resources to adopt a broader, educative approach to deal with the difficult issues of harassment, homophobia and discrimination." The Supreme Court of Canada declined to hear an appeal from the Jubran decision, thus adding to its authoritativeness.

The obligation of public schools to provide a discrimination-free educational environment may legally justify limiting the freedom of expression and religion of teachers and school counsellors to make discriminatory statements, about gays for example, both on and off the job. Teachers and school counsellors are considered to hold positions of trust and influence over young people and are required to ensure that their public statements do not impair public confidence in the school system or create an unwelcoming or intolerant school environment .

Exceptions

There are no legal exceptions that limit the rights of LGBT students specifically, except that the Yukon Human Rights Act defines sexual orientation in a way that excludes minors from protection. The constitutionality of this wording is dubious (see discussion above).

Results

As of 2006, few schools in Canada have implemented the Jubran requirements, and anti-gay bullying and name-calling by students is very common. Anti-gay insults such as "faggot," "queer", "homo" and "gay" are generally considered to be the most offensive and hurtful of all insults. Among youths, the use of the word "gay" has been extended so that it means inferior, worthless, effeminate or stupid in general; it does not necessarily mean homosexual. The rate of suicide and depression among LGBT youths is exceptionally high, especially when they first come out to themselves, have little support or are subject to bullying and ostracism. To counter homophobia and bullying in school and to provide support to LGBT students, students in some schools have set up Gay-Straight Alliance or similar groups, sometimes with support from teachers associations.

Sexual freedom

Sexual conduct is regulated by the Criminal Code, a federal law that applies throughout Canada. In general, the same prohibitions and ages of consent apply to individuals, regardless of sexual orientation, and to couples, regardless of whether they are same-sex or opposite-sex. Nevertheless, the Criminal Code tends to penalize gay men by being more restrictive in relation to sexual practices more commonly associated with gay men than it is in relation to sexual practices more likely to be engaged in by other people.

For example, the Criminal Code criminalizes anal intercourse in certain circumstances when vaginal intercourse is not criminalized, and this disproportionately affects gay men. As of February 2006, section 159 of the Criminal Code reads as follows:

159. (1) Every person who engages in an act of anal intercourse is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.

(2) Subsection (1) does not apply to any act engaged in, in private, between

(a) husband and wife, or

(b) any two persons, each of whom is eighteen years of age or more,

both of whom consent to the act.

According to subsection 159(3), an act is engaged "in private" only if it is done in a private place with no more than two people present. The age of consent for vaginal intercourse is 14 in most cases, and there is no requirement that only two people be present.

The age 18 requirement has been found to be unconstitutional by the courts in two provinces. The status of the age 18 requirement in other provinces is uncertain since the two decisions are not binding there, and the Criminal Code was not amended to bring it into confoormity with the court decisions.

In view of CHECK, the "husband and wife" exception probably violates section 15 of the Charter. If the wording were challenged in court, the court might replace it with "two people who are married to each other" or strike out 159(2)(a) entirely.

In 1995, in the Halm case, the Federal Court found that Section 159 was unconstitutional because it infringed the liberty and securityy of the person contrary to section 7 of the Charter and discriminated on the basis of age and sexual orientation contrary to section 15 of the Charter^[1].

condoms

condoms in jail access to drugs right to education

Legal recognition of same-sex couples

Registered partnerships are allowed in Nova Scotia since 2000. Same-sex and opposite-sex couples can register their relationships by making domestic partner declarations, and thus receive the same rights and obligations as married couples under 12 provincial laws, including laws that apply to inheritance, hospitals, pensions and division of property after breakup^[2].

Family rights

Since 2002, the federal Immigration and Refugee Protection Act allows Canadian citizens and permanent residents to sponsor, as part of the "family class," a non-Canadian common-law partner of the same sex^[3]. Homosexuality has not been a bar to immigration or entry into Canada since 1976.

Political rights

Ther are no legal restrictions to prohibit LGBT Canadians from voting or running for office. However, in practice, LGBT Canadians do not have an equal say in Canada's political life, most especially in relation to LGBT issues. For a number of legal and other reasons, the movement to oppose LGBT rights in Canada is far more powerful than the LGBT rights movement, even though public opinion is more supportive than opposed.

One factor is the fear that those who openly support LGBT rights might be presumed to be LGBT and thus be exposed to discrimination at work, family conflict, loss of custody of children, and violence.

A practical consideration is that opposition to LGBT rights is facilitated by the fact that it is centered around pre-existing groups such as churches and church-run schools. This gives opponents access to phone banks and a ready means of collecting funds, memberships and signatures on petitions, for example. There are churches in every community, but most towns and rural areas have no organizations that support LGBT rights, and few if any ways to identify supporters.

The imbalance in influence is also supported by an number of laws that favour opponents of LGBT rights. For example, electoral laws allocate a disproportionate number of seats to rural areas where LGBT residents are few and support for LGBT rights is weakest. Other laws generally reflect the privileged legal status of churches.

For example, donations to LGBT groups are not tax deductible since social clubs or lobby groups are not considered to be charities under income tax laws. To qualify, LGBT rights groups must set up separate foundations that must limit their focus to education or health, for example. On the other hand, opposition to LGBT rights is centered around churches, which are entitled to give charitable tax receipts, and groups that are funded by churches. LGBT rights groups have a fraction of the funding of their opponents.

The Constitution recognizes the right to denominational schools. Church-run schools are entitled to teach their values to their pupils, to require that staff support those values and to establish curricula that supports those values, and they are free to operate without regard to the Charter or to human rights laws, unlike public schools. Nevertheless, school fees and donations to schools are tax deductible and many church-run schools (e.g. all Catholic schools in Ontario) receive most of their funding from the government. This is allowed in Canada because its constitution does not explicitly require the separation of church and state.

The legal backdrop to public debate about LGBT rights favours extremist religious views that oppose LGBT rights. Canada's hate legislation nominally protects against hate based on religion, sexual orientation and other grounds, but it includes a broad exception that allows most religious groups to condemn LGBT's with little or no restriction while limiting criticism of religion.

Being out is seen as a liability when running for election. Nevertheless, a few out politicians have been elected. CHECK As of January 2006, the leader of the Bloc Québecquois, a provincial party in Quebec, and, Allison Brewer, the leader of the New Democratic Party in New Brunswick, are out.

Life, liberty and security of the person

As of 1990, the Private Family Visiting Program in federal correctional facilities allows private family visits by same-sex common law partners ^[4]

old style Footnotes

1. ^ Halm v. Canada (Minister of Employment & Immigration) (1995), 91 F.T.R. 106 (Fed. Ct) Accessed February 18, 2006. <http://reports.fja.gc.ca/fc/1995/pub/v2/1995fca0190.html>
2. ^ Vital Statistics Act R.S.N.S. 1989 c. 494, s. 54 Accessed February 19, 2006. <http://www.canlii.org/ns/laws/sta/r1989c.494/20051216/whole.html>
3. ^ Immigration and Refugee Protection Act S.C. 2001, c. 27 Accessed February 18, 2006. <http://laws.justice.gc.ca/en/I-2.5/text.html>

1. ^ Veysey v. Canada (Correctional Service) (1990), 109 N.R. 300 (Fed. C.A.)