| barbara findlay Q.C. |
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 The Vancouver Foundation newsletter which I received today describes a bequest to them by two gay men who left money to the Foundation for a "Rainbow Fund" to create a seniors' home for LBGT people.
What a great idea, when you are writing your will...
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 Immigration Canada believes that there are "thousands" of fraudulent marriages between Canadian citizens or permanent residents and non-Canadians, and so they are tightening the rules.
Effective immediately, you are allowed to "sponsor" your spouse - defined to include your married partner, someone you have been living with for two years (a common law partner), or someone you are unable to live with because of the laws or social context in your respective countries (for example, consider a Muslim from Iran who is in a relationship with a Canadian: the two cannot live together as spouses in Iran; and Canada may deny a visitor visa). But now, says Canada, there are two new requirements. According to Jason Kenney, these new requirements are designed to stem fraud arsing out of fraudulent relationships in which a couple marries solely for the purpose of bringing the non-Canadian to Canada, sometimes for a fee. The first requirement relates to you only if when you made your application for spousal sponsorship, you had NOT been living together for two years AND you have no children. In that situation, the law now requires that you live together for two years after you come to Canada. The rule makes an exception if you are in an abusive relationship. In that case, you should go immediately to your doctor, and report the abuse so it is on record. Then you should go to a lawyer, or call Immigration Canada, and explain why you have moved out. The second requirement is that once you are yourself sponsored as a spouse, you cannot sponsor anyone else as your spouse till five years have passed from the date you acquired permanent residency.  According to Julia A. MacMillan, professor of pediatrics and associate dean for graduate medical education at the Johns Hopkins University School of Medicine, every study ever done over the last 30 years confirms that children are healthiest if raised by two loving parents, regardless of gender.
In an article in today's Baltimore Sun, MacMillan notes "Every major children's health and welfare organization, including the American Academy of Pediatrics, the Child Welfare League of America, the American Psychological Association, the American Psychiatric Association, the National Association of Social Workers, and the American Academy of Child and Adolescent Psychiatry, confirms that gay parents make good parents. The American Medical Association, the nation's largest and most well respected association of physicians, with a membership of more than 200,000, agrees". Studies purporting to show that LBG parents are flawed have been completely debunked for their pseudo-scientific methodologies. There is currently no research specifically about trans parents. A federal appeals court in New York struck down part of the Defense of Marriage Act on Thursday and became the first to rule that gays and lesbians are a minority group deserving of special protection from discrimination under the Constitution.
Unlike Canada, the U.S. does not have a clause in its constitution specifically guaranteeing equality rights; but courts have held that laws which discriminate on the basis of gender or race should be subject to "strict scrutiny"; that usually results in discriminatory laws being struck down. The case decided today concerned a tax assessment levied when a New York lesbian died, leaving her estate to her spouse. The two had married in Canada and lived in New York where same sex marriage is permitted. The court held that the widow cannot be forced to pay the federal estate taxes. This battle parallels Canadian claims for "spousal benefits" which were fought and won for about a decade before same sex marriage was achieved here. Obama has refused to defend the "Defense of Marriage Act" - the homophobic federal legislation denying recognition to same sex marriage. So the widow's opponents were funded by House Republicans in court. An individual has a duty to advise a sexual partner if the individual is HIV+. If they fail to advise their partner of their HIV+ status, they can be charged with sexual assault or even aggravated sexual assault.
What if a lawyer learns that her client is HIV+, something that the police and prosecutors don't know? In a recent case, an Ontario court held that a lawyer had a duty to disclose that status, even though her client's communication with her was protected by solicitor/client privilege. Solicitor client privilege does not apply if disclosure of a client's confidential information would prevent a crime. The court held that this rule applies, and the lawyer correctly disclosed her client's confidential information about their HIV status to the Crown prosecutor. To watch an interesting video about this case, go to http://www.lawtimesnews.com/videos/hiv-and-the-law. The case is a worrying one. On the one hand, it is hard to argue against protecting prospective sexual partners of an individual from having sex not knowing of the client's HIV status. On the other hand, if HIV+ clients cannot tell their lawyers of their sero-status without risking disclosure to the Crown or the police, no HIV+ person would ever disclose their status to their lawyer. In turn that means that an HIV+ person is denied access to legal advice and representation, since their lawyer cannot advise them properly without all the facts. In two other cases, the Supreme Court of Canada ruled on October 5 about what a person's duty is to her or his sexual partner if she or he is HIV+. The underlying principle is that you cannot truly consent to have sex with someone, if they are HIV+ and have not told you. The failure to disclose vitiates your consent to the sexual act, and can turn consensual sex into sexual assault. The Supreme Court of Canada says in its October 5 decisions ( R. v. Mabior [2012] S.C.J. No. 47 and R. v. D.C. [2012] S.C.J. No. 48) said that an accused does not have to disclose his or her HIV status if there is a low risk of transmission for HIV - for example, where a person has a low viral load AND uses a condom. The conviction of one of the accused was overturned in the case in which he had a low viral load and used a condom; but permitted to stand in the case where he had a low viral load but did not use a condom. Defence lawyers are concerned because the ruling appears to put an onus on the accused to show that he or she had a low risk of transmitting HIV when he or she had sex. It is a basic principle of criminal law that the Crown has to prove that a person committed a crime, and 'reverse onus' provisions such as this generally offend the Charter rights of an accused individual. The takeaway lesson? If you are HIV positive, do the following: 1. Get your doctor to tell you whether or not you have a low risk of transmitting the virus. That way, you can later show that you had an honest and reasonable belief that your risk of transmission was low. 2. ALWAYS use a condom. 3. To be on the safest side, or i...tell your partner you are HIV+. Bill C-279, which passed second reading in June 2012, would amend human rights legislation to add 'gender identity' to the list of protected grounds. (While trans people have been consistently successful with human rights complaints on the ground of 'sex', adding 'gender identity' makes it clear to the public that transpeople are protected by human rights laws).
Christine Molloy reports that Calgary MP Rob Anders (Calgary West) has told his constituents and his church pastor that passage of the bill would allow 'transgender men' (he means transwomen) to have access to women's washrooms. Jan Buterman, a trans advocate, and Christine Molloy both argue correctly that an objection to trans people using the washroom appropriate to their gender identity is based on the assumption that trans people are likely to act inappropriately in the washroom: a quintessentially transphobic argument. Write your MP and dissociate yourself from these transphobic arguments; and tell your MP to support Bill C-279. This week California passed a law banning so-called 'reparative therapy', the first law of its kind in the world. The goal of reparative therapy is to turn gay and lesbian people straight. It has done immeasurable harm to queers who have undergone the therapy; often they have committed suicide.
The psychiatrist who first published articles saying that sexual orientation could be changed by therapy has since publicly renounced that position and said that he was mistaken, and apologized for the harm he has done. But today a Christian group has filed suit to overturn the California law, saying that banning reparative therapy breaches the constitutional right to freedom of speech. A study conducted by the Manchester-based Lesbian and Gay Foundation (LGF) in partnership with the University of Central Lancashire (UCLAN) investigated the use of alcohol and drugs by over 4,000 LGB people found over a fifth of respondents scored as dependent on a substance, and a quarter showed at least one indicator of dependency.
Lombardi's life at Midas Auto Services Experts was hell for Paul Lombardi, a gay man employed as a Service Advisor, after he was transferred to the Oshawa store in July 2008. He was taunted and harassed, including through text messages. Finally he blew up. Lombardi was fired on October 31, 2009, allegedly because he had got into a physical fight with a technician on the job. He filed a human rights complaint.
The Tribunal found that the conduct in the workplace included: - harassment on the grounds of disability and sex, largely through text messages and remarks - that the harassment and ongoing depression that resulted were partly responsible for the applicant’s involvement in the fight that led to his termination The Tribunal held that the employer knew of the harassment, but had done nothing to deal with the situation. The Tribunal awarded Lombardi $20,000 in general damages for pain and suffering, AND compensation for his salary, benefits and vacation pay from October 31, 2009, to August 31, 2010. The lesson for employees: you should tell your supervisor if you are being harassed. The employer has a duty to investigate the situation and deal with the harasser (and NOT by transferring or demoting you out of the workplace!) The lesson for employers: harassment between co-workers must be addressed immediately. There must be a zero tolerance policy. And if the employer finds out that one employee is harassing another, the employer must deal with the harasser, not transfer the harassee - otherwise, the harassee is being made to pay for the harassment. (Ontario Human Rights Tribunal Decision: Lombardi v Walton Enterprises (c.o.b. Midas Auto Services Experts) |
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