Part II: Agenda Items
Appendices: Attachments relating to the issues being addressed
EGALE was founded in 1985. Our mandate is to “advance equality and justice for lesbians, gays and bisexuals at the federal level.” EGALE is the only lesbian, gay and bisexual organization in Canada with a specific focus upon federal issues1.
EGALE has consistently lobbied for amendments to the Canadian Human Rights Act to include sexual orientation as a prohibited ground of discrimination and for recognition of lesbian and gay relationships. EGALE is a member of the International Lesbian and Gay Association, addressed the plenary session of the United Nations World Conference on Human Rights in Vienna in June 1993 and has recently been accredited as an Official Partner of the Canada Committee for the International Year of the Family.
EGALE has also been active in judicial recognition of lesbian and gay equality. We were awarded five Court Challenges grants, are developing materials to further judicial education on sexual orientation issues, we intervened in the Canada (A.G.) v Mossop2 case before the Supreme Court of Canada, assisted with the Layland v Ontario3 case concerning gay marriage, and have filed an application to intervene in the hearing of the Egan & Nesbitt v Canada4 decision, which is expected to be heard before the Supreme Court of Canada later this year.
Part II: Agenda Items
1. Amendments to the Canadian Human Rights Act
(a) Need for amendments
In 1985, the Parliamentary Committee on Equality Rights unanimously recommended that sexual orientation be included as a prohibited ground of discrimination in the Canadian Human Rights Act5. In its response to the Committee’s recommendations the Government committed itself to taking “whatever measures are necessary” to ensure that sexual orientation be a prohibited ground of discrimination in all areas of federal jurisdiction6. In 1994, lesbians, gays and bisexuals are still waiting for this commitment to be honoured.
In Haig v Canada7, the Ontario Court of Appeal unanimously held that the equality guarantees in the Canadian Charter of Rights and Freedoms require that the Canadian Human Rights Act be interpreted and applied as if “sexual orientation” were a prohibited ground of discrimination. The Attorney General of Canada decided not to appeal this decision to the Supreme Court of Canada.
Despite the decision in Haig, Parliament has not amended the Canadian Human Rights Act to bring it into conformity with the Court decision. The only action taken by the previous Government was the introduction of Bill C-108, which was broadly condemned by the equality-seeking communities for taking away more than it gave. The heterosexist definition of “marital status” in the Bill was seen by many as a gratuitous insult to lesbians and gays.
In 1992, due to inaction in the House of Commons, Senator Kinsella introduced into the Senate of Canada Bill 5-15, a Bill to add “sexual orientation” to the following sections of the Canadian Human Rights Act: section 2 (purpose), subsection 3(1) (proscribed grounds of discrimination), subsection 16(1) (special programs). The Legal and Constitutional Affairs Committee of the Senate8 unanimously recommended that the Bill be passed without amendment. At the third reading of the Bill, only one member of the Senator (Senator Frith) opposed the Bill, and he was at pains to point out that he opposed the Bill for procedural reasons only.
The Canadian Human Rights Commission has consistently called for the inclusion of sexual orientation in the Act without qualifications or restrictions9. Chief Commissioner Max Yalden, testifying before the Senate Legal and Constitutional Affairs Committee, stated:10
“Have I ever advised the government that they should include sexual orientation in the Canadian Human Rights Act? I have done it, I think, from the top of the steeple about once a week for the last six years. If I did it any more openly, any more markedly, if I were louder about it, I would, I think, be insulting…. Yes, Mr. Chairman, we have said over and over again, and I repeat today for the record, we would like to see sexual orientation included among the prohibited grounds of discrimination in the Canadian Human Rights Act, and we would like to see it without any qualifications, without any definitions following marital status or anything else.”
At the United Nations World Conference on Human Rights in June 1993, EGALE was pleased to note that Canada called for an end to discrimination on the ground of sexual orientation11. It would be ironic if Canada is willing to call upon other States to make this commitment, but has not yet amended its own Human Rights Act.
Despite the decision in Haig, it remains necessary to expressly amend the Canadian Human Rights Act for a number of reasons:
The Haig decision is a decision of the Ontario Court of Appeal, and is therefore not binding outside of Ontario. This leaves the law in a state of uncertainty in other jurisdictions, and leaves open the possibility that the same issue may have to be needlessly relitigated elsewhere.
It is Parliament’s responsibility to ensure that the law is accessible to all. Many Canadians are unfamiliar with Court decisions, and without an express amendment to the Act, people who consult the Act have no way of knowing that discrimination on the ground of sexual orientation is prohibited. If it becomes the practice of Parliament to leave unconstitutional laws unamended, even lawyers will have no way of knowing whether a particular statutory provision can be relied upon.
A principal objective of the Human Rights Act is to educate. Amending the law sends the clear message that discrimination on the prohibited grounds is simply not acceptable in a society which values equality and diversity. Failing to amend the Act sends the equally clear message that Parliament does not consider lesbians, gays and bisexuals worthy of express recognition.
(b) Multiple grounds of discrimination
At present, the Canadian Human Rights Act only permits complaints to be made on independent, distinct grounds. It does not recognize the fact that discrimination is often complex and may be based on a combination of a number of different grounds.
In Mossop12, Chief Justice Lamer expressed some support for the principle of “overlapping grounds of discrimination”.
Despite its numerous deficiencies, Bill C-108 did include the following provision:
“3.1 A discriminatory practice includes a practice based on one or more prohibited grounds or on the effect of a combination of prohibited grounds.”
(c) Should “sexual orientation” be defined?
“Sexual orientation” is a term which is commonly understood in the human rights context to refer to lesbians, gays and bisexuals, who require protection from discrimination as a result of historic and social disadvantage. The term is in widespread use, is clear and does not, in EGALE’s view require further definition. Defining the term further is likely to limit the scope of protection, rather than permit the Courts to interpret and develop the term in context.
“Sexual orientation” is a prohibited ground of discrimination in the human rights Acts of British Columbia, Manitoba, New Brunswick, Nova Scotia, Ontario, Quebec, Saskatchewan and the Yukon Territory. In not one of those statutes has the Provincial Legislature felt it necessary to define the term “sexual orientation”. We are not aware that any Court or tribunal has had difficulties in interpreting or applying that term.
In Haig, the Ontario Court of Appeal ruled that the Canadian Human Rights Act must be interpreted and applied as if it includes “sexual orientation”. At no point did the Court attempt to define the term.
In practice, insistence upon a definition of a term that is otherwise clearly understood is simply a tactic used by those who oppose equality for lesbians, gays and bisexuals, in order to focus attention on questions of semantics rather than substance.
The only confusion surrounding the scope of the term “sexual orientation” is whether it extends to lesbian and gay relationships. In EGALE’s view, and in the opinion of the tribunals in Leshner13 and Clinton14, a same-sex relationship is clearly within the scope of a same-sex sexual orientation. In order to avoid doubt and unnecessary litigation on this issue, E’GAL~ strongly calls for the Bill amending the Canadian Human Rights Act to include the following clause:
“For the purposes of clarity, ‘sexual orientation’ includes the status of being in a relationship with a person of the same sex.”
(d) Timetable for amendments
This amendment is long overdue. The Courts have already read sexual orientation into the Act, and all that is required is a very simple amendment to bring the Act into conformity with the decision of the Court, to introduce an expansive definition of sexual orientation, and to recognize multiple grounds of discrimination. E’GALE would like to know the Minister’s timetable for these reforms. We believe that it should be possible for these measures to be enacted and in force by Lesbian, Gay and Bisexual Pride Day at the end of June 1994.15
2. Same-sex Relationship Recognition
(a) Need for recognition of same-sex relationships
This is perhaps the most significant issue facing lesbians, gays and bisexuals in Canada in our struggle for equality. Needless to say, our relationships are an essential part of our lives and are characterized by the same love, caring commitment, the same needs and concerns as heterosexual relationships. We cannot take pride in our country if our relationships are stigmatized and belittled by our own government as inferior.
There can be little doubt that lesbian and gay relationships are not accorded equality before the law. The Attorney General of Canada has identified over fifty federal statutes which deal with the spousal relationship in a way which excludes lesbians and gays.16 Inequalities cut across such diverse areas as immigration rights, custody and adoption, support rights and obligations, marriage, succession law, employment benefits and pension rights.
The assumption that all spousal relationships are inevitably heterosexual in nature is simply inconsistent with the reality in which we live. Madam Justice L’Heureux-Dube’, writing for the minority in Mossop, recognized that families take many different forms in Canadian society, and that “lesbians and homosexuals establish long-term and committed relationships, and many are involved in raising and nurturing children” 17
The minority in Mossop also recognized that there are problems which are shared by all families, such as economic pressures and coping with illness, and that these difficulties:
“…are further exacerbated in families whose legitimacy is called into question. Given these pressures and responsibilities, it would seem that it is in society’s interest to improve conditions to enable families to function as best they can, free from discrimination.”18
EGALE considers that the numerous instances of federal discrimination against same-sex relationships violate the Charter of Rights and Freedoms. One cannot meaningfully say to lesbians and gays: You are equal, but your relationships are inferior. The discrimination inherent in the law’s refusal to recognize our relationships is almost self-evident. Put simply, heterosexual relationships are recognized by law; homosexual relationships are not. How can this be anything other than discrimination on the ground of sexual orientation? Developing jurisprudence supports this conclusion. EGALE has prepared a report on Lesbian and Gay Relationship Recognition under the Charter, a copy of which is attached as Appendix C.
There are numerous challenges to discriminatory laws currently being litigated. EGALE understands that the Canadian Human Rights Commission alone has accepted over seventy complaints based on denial of same-sex spousal benefits. Because these issues touch upon our fundamental human rights, the lesbian, gay and bisexual communities will never stop litigating these claims until we achieve full equality in law. It is difficult to understand why Parliament should waste hundreds of thousands of dollars on every single case, for no better purpose than to maintain discrimination against lesbians and gays.
It is unjust that lesbians, gays and bisexuals contribute to benefit schemes and pay taxes, but do not receive the equal benefit from those schemes that heterosexuals do.
Such evidence as there is indicates that the costs of providing equal benefits to same-sex relationships will not be significant. Lesbians and gays form a minority of the population, not all lesbians and gays are in committed relationships, and not all lesbians and gays in relationships will claim spousal benefits. As well as obtaining benefits, lesbians, gays and bisexuals will assume the burdens and responsibilities of legal recognition, permitting some of these costs to be recovered. Against this must be balanced the ongoing costs of litigation. E#GALB attaches as Appendix D a report by the Wyatt actuarial firm, which considers that there is likely to be little increased cost as a result of extending group insurance and pension benefits.
The Supreme Court of Canada has rejected cost as a basis for denying human rights.19 The slavery of African-Americans was not justified because it was cheaper than paying them wages, it is not justifiable to pay women less for work of equal value, and one cannot deny lesbians and gays equal benefits just because it costs less.
In EGALE’s view, the tide of public opinion has now turned to the extent that those who seek to deny equality to lesbians and gays are seen as narrow-minded and unjust. Although there are no reliable opinion polls of which we are aware, we enclose as Appendix B some newspaper columns tracing editorial opinions of the actions of the previous Government in this area.
(b) Is the government committed to removing federal discrimination against same-sex relationships?
EGALE is concerned that Prime Minister Chrétien’s response to the EGALE Election questionnaire was inconclusive on the issue of same-sex relationship recognition. Although the details may require further study, EGALE wishes to know quite specifically whether the Liberal Government is committed to the principle of equality for same-sex relationships. We would also like to know the Minister’s personal views on this issue. In addition, we will be seeking clarification on the position the Minister intends to adopt in respect of the litigation which is ongoing in this area.
(c) Inappropriateness of leaving these issues up to the Courts
EGALE considers it is an abdication of Parliamentary responsibility to leave the issue of same-sex relationship recognition up to the Courts. It subjects the human rights of lesbians, gays and bisexuals to uncertainty and wasteful expense. The Attorney General of Canada regularly advises the Courts that these matters should be left up to Parliament, so Parliament can hardly now say that these matters should be left up to the Courts.
The longer Parliament refrains from acting on these issues, the more it stands to lose in litigation costs and awards of damages. The Courts are likely to expose Parliament to severe criticism which will be echoed in the media if it is felt that Parliament has deliberately done nothing.
There are dozens of federal statutes which discriminate against lesbians and gays. Many of these statutes are interconnected and fit into a broader statutory scheme. Courts can decide only the narrow issue in front of them. They are ill-equipped to grant remedies which may have sweeping implications upon other legislation not directly in issue. Only Parliament can satisfactorily engage in wholesale legislative reform.
The Courts are not accessible to many for reasons of cost or an unwillingness to face the strain and publicity of a trial. Lesbians, gays and bisexuals whose needs are not addressed by statute and who are unable or unwilling to challenge discriminatory laws in Court are denied justice in the absence of Parliamentary reform.
(d) Review of federal legislation
EGALE wishes to know whether a review of federal legislation has already been initiated. If so, when will it be completed? If not, what are the Minister’s plans in this regard? Will any such review be publicly released, and when?
It is also important to know what format the review will take. There is a big difference between a review for the purposes of deciding whether to recognize same-sex relationships and a review for the purposes of deciding how best to achieve the goal of recognizing same-sex relationships. If the Government is committed to the principle of equality, the review should be directed at means of implementing that goal. What are the terms of reference for any review taking place?
EGALE is intimately familiar with these issues and has a particular expertise to offer the Government in any review taking place. We believe that the process of review should be open and should draw upon the expertise of those persons affected by the decisions being made. We are able to assist both on a volunteer and on a contract basis. In any event, we believe that there should be consultation on the terms of reference for the review of federal legislation.
(f) Timetable for Reform
EGALE believes that the Government should publicly announce that it is committed to equality for same-sex relationships and will accordingly be reviewing federal legislation. May 24, 1994 is the International Day of the Family and a public announcement on that day of a commitment to same-sex relationship recognition would be a significant step forward for equality.
EGALE would also like a firm timetable for the report on reviewing federal legislation, together with a commitment to the introduction of the appropriate Bills by a certain date. We believe it should be possible to conclude the report by the end of International Year of the Family (December 1994).
3. Hate Crimes
Sections 318 and 319 of the Criminal Code prohibit hate crimes against an identifiable group, including advocating genocide and inciting hatred. These laws reflect the reality that promoting hatred against vulnerable groups in society can have severely harmful consequences, including increased violence against those groups, destruction of the self-esteem of those affected, and increased suicides.
The definition of “identifiable group” is quite restricted, and is limited to groups distinguished by “colour, race, religion or ethnic origin”.
The Law Reform Commission of Canada in its report on Hate Propaganda acknowledged that “in recent history, homosexuals have been subjected to hateful attacks which led to their physical harm. After all, homosexuals were also victims of the genocidal policies of the Nazis.”20
The Liberal Government has given public commitments to extending the hate crime provisions of the Criminal Code to prohibit advocating genocide and inciting hatred on the ground of sexual orientation.
EGALE applauds the Liberal initiative. There is a strong need for these reforms. Murders and violence against lesbians, gays and bisexuals are, unfortunately, not uncommon. In 1985, Kenn Zeller was murdered by five teenagers in a Toronto park. In March 1989, a gay man, Joe Rose, was beaten to death on a crowded Montreal bus. In August 1989, a young man who was perceived to be gay was thrown to his death from the Interprovincial bridge between Ottawa and Hull. In December 1992, in Montreal, Yves Lalonde was savagely killed because of his sexual orientation, as part of a Neo-Nazi initiation ritual.
There is also evidence of advocating genocide and inciting hatred where direct physical violence is not involved. We attach as Appendix F two reports of homophobic statements advocating violence against lesbians, gays and bisexuals. The pamphlet distributed by the Danskin Mennonite Church in Brown’s Lake, B.C., quotes an American article which states:
“If I want to kill a rattlesnake, I had better hit it on the head! America is crawling with venomous snakes that make the rattler pale by comparison. These are…homosexuality… Many are redefining some of the vipers as alternative forms of creatures that have an equal place in society with the perfectly harmiess varieties. … Christ came to crush the head of the snakes that are crawling about in our community, and poisoning the nation.”
The hate crimes provisions in the Criminal Code have already been held to be a justified limitation on freedom of expression by the Supreme Court of Canada in R V Keegstra21. There need be no concern that extending these provisions to other identifiable groups will water down the protection afforded. If the Supreme Court considers it is constitutional to prohibit advocating the genocide of racial or religious minorities, then it must be constitutional to prohibit advocating genocide against lesbians, gays and bisexuals as well. Indeed, applying the reasoning in Haig, it may well be unconstitutional not to protect lesbians, gays and bisexuals.
In addition, these crimes are quite difficult to prove, and require consent of the Attorney General to prosecute. Their main value is as an educational tool, to send the message that hatred of lesbians, gays and bisexuals is not acceptable. Excluding lesbians, gays and bisexuals from these provisions sends the opposite message: advocating genocide and inciting hatred against our communities is acceptable.
Other alternatives, such as the American approach of considering prejudice against an identifiable group to be an aggravating factor in sentencing, may also be considered. It is important, however, that the approach to identifiable groups be consistent, so that all groups receive equal protection. Otherwise a hierarchy of rights will be created, with some groups obtaining the full benefit of protection under ss. 318 and 319 of the Criminal Code, while other groups are only protected on sentencing. Such a hierarchy between identifiable groups may well be unconstitutional.
4. Ongoing Communication
There are a number of other issues which require attention, such as specific issues relating to immigration law and tax law, the conduct of individual cases such as the Simon Thwaites appeal, questions relating to the application of laws such as censorship laws, and practical matters such as the details relating to the reinstatement of the Court Challenges Program.
EGALE would like to maintain regular contact with a person or persons in the Minister’s office so we may inform and be informed in these and other issues.
EGALE appreciates this opportunity to exchange views with the Minister, and believes that it would be constructive to all parties to maintain ongoing communication. We would like to know the most appropriate means of arranging further meetings, and would like to know how we may best make our expertise available to the Minister.
A list of EGALE’s activities over the past year is attached as Appendix A.
 1 S.C.R. 554.
(1993), 104 D.L.R. (4th) 214; leave to appeal to Ontario Court of Appeal granted on June 7, 1993.
(1993), 103 D.L.R. (4th) 336 (F.C.A.); leave to appeal to Supreme Court of Canada granted on October 15, 1993.
House of Commons Parliamentary Committee on Equality Rights, Equality for All, October 1985, 30 (recommendation 10).
See Whatever Measures Are Necessary: Human Rights for Lesbians and Gay Men, EGALE Report to the House of Commons, February, 1991.
(1992), 94 D.L.R. (4th) 1 (Ont. C.A.).
EGALE’s submissions to the Senate Committee are attached as Appendix B.
See, for example, Annual Report, Canadian Human Rights Commission, 1992-1993.
Senate of Canada, Proceedings of the Senate Standing Committtee on Legale and Constitutional Affairs, June 1, 1993, 43:14.
Address by Dorothy Dobbie, M.P., representing the Hon. Barbara McDougall, Secretary of state for External Affairs of Canada, to the United Nations World Conference on Human Rights, Vienna, June 16, 1993, p.5.
(1992), 16 C.H.R.R. D184.
Clinton v Ontario Blue Cross, Ont. Bd. Of Inq., 92-00112/113, July 14, 1993.
1994 marks the 25th anniversary of the Stonewall Riots in New York on June 28. This is often seen as the birth of the modern lesbian, gay and bisexual civil rights movement and having the amendments in place by that date would have important historical significance.
See Appendix to factum of the Attorney General of Canada in Layland v Ontario, supra, and in Egan v Canada, supra.
Supra, at 53.
Ibid. The majority of the Court did not dispute Her Honour’s analysis on this point, bu considered that the substantive issues could not be addressed in the absence of a Charter challenge.
Instead, cost is only relevant to the remedy chosen to address the breach, i.e. striking down or reading in: see Schachter v Canada (1992), 139 N.R. 1, 30-31.
Law Reform Commission of Canada, “Hate Propaganda”, Working Paper 50, 1986, 33.
 3 S.C.R. 697.