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Common law partners don't suffer social disapproval any more; so can't claim same financial regime as married partners, says SCC

1/19/2014

The Supreme Court of Canada has held that common law partners do not experience disadvantage in Canadian society any more, and so they cannot claim that their equality rights are breached in comparison to married people.
The result is that a Quebec common law partner who broke up with her spouse cannot succeed in her claim to have the same laws applied to her as are applied to married or civil union partners when they break up.In Quebec v A, A had argued that her equality rights under the Charter of Rights were infringed, because when she broke up she could not claim a division of property or spousal support as people who were married or in a common law relationship could do. To succeed, she had to show that common law partners suffered disadvantage and that the exclusion from the law contributed to the continuing stereotype or disadvantage. The Supreme Court of Canada said that although there was a period of Quebec history during which de facto (in fact, rather than married) spouses were subjected to both legislative hostility and social ostracism, nothing in the evidence suggests that de facto spouses are now subject to public opprobrium.
This has been one of my more confused/confusing posts. Here's the thing: (1) yes, in B.C. common law and married partners, (including same sex) have EXACTLY the same rights and responsibilities - as they should - but in PQ the situation is different. They enacted a 'domestic partnership' regime which lets people essentially sign up for common law status (I call it 'marriage light' ). This case was brought by people who were neither married nor in a domestic partnership. Personally, I think the SCC got it wrong, because I don't think prejudice against people who are "not really married" is over by a long shot. And I think people kind of 'slide into' living common law: they get together, decide to live together...then maybe have children...then... find the relationship ending with no rights attached. The flip side though is that such a relationship ends with no responsibilities attached. For every ending, one partner wishes they did, and one is glad they don't, have a regime like a marriage regime governing the financial aspects of their breakup. NOTE: in BC you 'become' common law after you have lived together for 2 years. In Ontario, it takes 3 years; federally, it takes 1 year.

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Where's the line of hate speech?

9/23/2013

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The Supreme Court of Canada has drawn the line between what counts as 'hate speech' - and is therefore prohibited - and what is protected 'free speech'. In Saskatchewan v Whatcott, Whatcott had circulated pamphlets saying things like "Keep Homosexuals out of schools" and "Keep Sodomites Out of Schools".
The court said that free speech, including free speech about political issues, and freedom of religion are protected rights -- but subject to the limitation that it not be hate speech.
How do you tell if speech is hate speech? The court said that the test is an objective one: Would a reasonable person, aware of the relevant context and circumstances, find the speech to expose or likely to expose people to detestation and vilification. Speech which merely ridicules someone is not hate speech. Speech in private is not hate speech; and speech directed personally at an individual is not hate speech.

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Remember the Charter of Rights? Not so fast...

9/14/2013

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The Canadian Charter of Rights and Freedoms, enacted in 1982, has become a cultural touchstone, guaranteeing that Canada is a place of freedom, respect, and equality.
Right?
Two events this week underscore the Charter's weaknesses. The first is an . underreported court case in Ontario, Tanudjaja v Canada. In that case, a coalition including B.C.'s Pivot Legal Services argued that the Charter imposed an obligation on the federal and provincial government to ensure that affordable, adquate and accessible housing is available for all Ontarians and Canadians. The coalition argued that section 7 of the Charter, a guarantee of of "life, liberty, or security of the person" imposed that obligation.
The case was thrown out as soon as it was filed, before any evidence was heard. The court said that the Charter imposes no positive obligation on governments to do anything. If the government gets into the affordable housing business, it must do so in compliance with the Charter which among other things guarantees equality. But the government has no obligation to get into the affordable housing business if it doesn't want to.
So your 'right' as a Canadian to "life...and security of the person" doesn't include the right to eat, or be sheltered.

The second event - this one all over the news - is Quebec's intention to introduce a "Charter of Values" which would prohibit the wearing of some religious symbols (all except Catholic crucifixes, in fact) if you work in the public sector - government, hospitals, educational institutions.

This law does contradicts the guarantee of 'freedom of religion' and the guarantee of 'freedom of expression' in both the Canadian Charter of Rights and Freedoms and Quebec's own Charter of Rights and Freedoms.

Courts have consistently upheld the rights of religious minorities: for example in Multani, a affirming that Sikh boys could wear kirpans (a religious symbolic metal knife worn under clothing) to school; and in Amselem, permitting Jews to erect succah, a small ritual dwelling, on their balconies notwithstanding a rue of the luxury condo where they lived that prohibited balcony structures.

Queers have objected, unsuccessfully, that 'freedom of religion' should not be a licence to discriminate against queers just because they 'sincerely believe' that being queer is a sin. In Trinity Western, for example, queers lost an argument that the Christian College should be refused accreditation as a teacher's college because it required all students to sign a contract agreeing not to engage in sexual 'sins' including homosexuality.

So it seems obvious that Quebec's 'Charter of Values' would be thrown out because it contravenes the Charter of Rights. Because the Charter of Rights is part of the Constitution of the country any other law that conflicts with it can be declared null and void.

Right?

Not necessarily.

The Quebec government can throw in a 'notwithstanding' clause. Any government is permitted to enact a law which they know contradicts the Charter of Rights if they include a section that says the law is valid notwithstanding the Charter. If the 'notwithstanding' clause is included, the Quebec Charter of Values would be good for five years, after which it would have to be reenacted. Governments have to think twice about using the notwithstanding clause, because they know that every five years they will have to pay the political cost of enacting a Charter -violating law.

We queers must stand firmly with the religious minorities in Quebec, even though 'religious freedom' is often pitted against queer rights. Because what is at stake is our country's very soul. Unless we all recognize that conflicts among rights - religious freedom and queer rights, or any other conflict - must be settled by the courts, we will inevitably end up with the shameful spectacle of governments enacting legislation designed to hurt minorities just to get votes. And when that day comes, we will be among the minorities targeted for legislated bigotry.

The Canadian Charter of Rights and Freedoms is deeply flawed because it does not even pretend to address the worst inequalities among Canadians - the inequalities created and perpetuated by poverty. And the Charter is fragile: if ever it becomes politically acceptable to tack the 'notwithstanding' clause onto any piece of legislation which is currently in favour, all of our Charter rights will succomb.

But, as minorities of any kind - sexual, racial, religious, disabled, immigrant, women (though not a minority!) the Charter is all we've got.

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Toronto Catholic School Board sees the light

5/24/2013

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Yesterday the Toronto Catholic School Board saw the light of day: they refused a motion from one of the trustees calling for a ban of gay straight alliances in Catholic schools.
The School Board is governed by the year-old 'Accepting Schools Act' requiring school boards to permit students to set up GSA's; but the presenting trustee had argued that the board should nevertheless refuse GSA's - because, he said, the Charter's guarantee of freedom of expression trumped the Accepting Schools Act.
But he was outvoted.

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No to Hate Speech about Queers, says Supreme Court of Canada (but...)

2/27/2013

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The Supreme Court of Canada today issued an important decision about hate speech directed at queers.

The background to the case concerned four documents: two flyers, one called "Keep Homosexuality out of Saskatoon's Public Schools!" and "Sodomites in our Public Schools"; and two flyers which were the reprint of a classifed ad with handwritten comments added.

Under the Saskatchewan Human Rights code, it is illegal to circulate publications which "expose a person to hatred and ridicule" on a protected ground - here, sexual orientation.

So the big question for the court was: where does prohibited hate speech end, and where does freedom of speech begin?

The Supreme Court of Canada analyzed what a publication must be like in order to contravene the hate speech provisions. It said that there must be three main elements. First, the person judging whether the publication contains hate speech must do so from an 'objective' point of view, asking themselves whether a 'reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to hatred'. (In other words, you cannot only ask queers what they think about that question). Second, it is only hateful and contrary to the protections in Saskatchewan's human rights legislation if it is really hateful...in the sense captured by the words 'detestation' and 'vilification'. It's not hate speech just because it is repugnant or offensive. And finally, the decision maker must look to see what the effect of the hate speech is: is the probably effect that it will expose the targeted person or group to hatred by others?

The complainants had argued that the section of the human rights law under which they had been convicted was a breach of their constitutionally protected right to freedom of speech. True, said the Supreme Court of Canada: but, your right to freedom of speech has to be balanced against the right to be free from speech which is likely to cause hatred; and in this case, most of the human rights law is appropriate and impairs one's freedom of speech minimally.

Part of the Saskatchewan human rights legislation outlawed speech which "ridicules, belittles or otherwise affronts the dignity of" a person. That part of the law, said the Supreme Court of Canada, is too broad. And they struck it down.

This case has been long-awaited. Queers have been holding our breath to see whether the Supreme Court of Canada would uphold our right to be free from malicious homophobic speech, or whether once again our rights would be seen as subordinate to someone else's rights to free speech, or freedom of religion.

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No hope that census will reflect Canadians' lives

1/26/2013

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In a recent decision, the Canadian Council on Social Development and several other groups challenged the federal government's change to Census Canada's data collection. The feds have stopped collecting data about a person's aboriginal heritage, race, ethnic or national origin, and disability.
The application to find the federal government in breach of the Charter of Rights failed. So Harper can continue his anti-scientific policies in relation to the census.
Canadian Council on Social Development, Community Social Planning Council of Toronto, Social Planning Council of
Winnipeg, Community Development Halton, Canadian ArabFederation, Ontario Council of Agencies Serving Immigrants,
Council of Agencies Serving South Asians, Canadian Mental Health Association - Toronto, African, Canadian Legal Clinic,
National Aboriginal Housing Association, South Asian Legal Clinic of Ontario, Metro Toronto Chinese & Southeast Asian
Legal Clinic v Attorney General of Canada, Respondent[2012] F.C.J. No. 16472012

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An Ontario trans victory ???

12/22/2012

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The post below is republished with the kind permission of Christin Molloy.
We expect similar changes to the Ontario ones to happen in BC shortly.
One upon a time, a legal change of sex was available in Ontario only to those Trans* persons who could prove with documentation that they had completed "transsexual surgery." Early in 2012, that requirement was found to be discriminatory in a human rights ruling. Consequently, the Ontario Registrar General was given six months to provide a new process for legal change of sex which would be accessible to all Trans* persons, as opposed to just "post-op" individuals.

The Registrar's office released their newly revised requirements in October, less than one week before their tribunal-imposed deadline was set to expire. As I reported then, the new requirements are grossly dissatisfactory for a variety of reasons.

In addition to the points I raised at that time, anyone under 18 is outright banned from having a legal change of sex (even if their parents are cooperative). This blatant form of age discrimination, targeting already disadvantaged Trans* youth, is a fact which I unfortunately omitted in my earlier piece on the topic. Thanks go to blogger Catherine (at ex puero ad puellam) for pointing this out.

As it turns out, the problems don't end there. I've received a very disturbing report which indicates the registrar is summarily rejecting applications based on nebulous requirements that are not published anywhere. Whether they are doing this on purpose or by mistake, the effect is the same.

When my source, "Illiana," had her application rejected (after a two month wait), she wanted to know the reason why. So Illiana emailed the Deputy Registrar General and requested an explanation, and was contacted the next day by a customer service rep from the specific department of the registrar's office tasked with verifying that applications are "complete and correct."

The first problem with Illiana's registration was relatively straightforward. "I didn't provide them with the birth certificate I was issued 20 years ago... (because it was) lost 15 years ago," she says.

In defense of the registrar, the change of sex form does say "please send ... all previously issued birth certificates and certified copies of the birth registration." Illiana's impression from the form was that since her certificate was long gone, there weren't any copies left to submit. However, what is really meant by the form is "must send," and "at least one copy." Indeed, when I legally changed my name (my parents lacking the foresight to name their son Christin), I actually had to first specifically order and pay for a replacement birth certificate, in my male birth name, only to then turn around and remail it back to the registrar to be destroyed as part of the name change process. Typical government efficiency.

Now, the legal sex change form isn't really as clear about this requirement as it could be, so we can easily forgive Illiana. Nevertheless, the requirement to send in the old certificate is reasonable (chalk it up to security). To the registrar's credit, rather than requiring Illiana to fork over cash for a replacement only to remail it back for destruction, the customer service rep advised her instead that she need only include a letter explaining that she isn't in possession of a birth certificate. Fair enough, lesson learned, she can re-submit her application and move on. Right? Not so much.

Turns out there were other "problems" with Illiana's application, revealing some previously unknown and gravely troubling barriers for Trans* persons trying to access this process.

"(The) next topic was that I didn't include a physician's letter," explains Illiana. The letter Illiana did include was written not by her medical doctor, but by her psychologist. It was therefore unsuitable, explained the CSR. What? The application form clearly states "A letter (on the medical professional's letterhead) signed by a practicing physician or a psychologist (including a psychological associate) authorized to practice in Canada."

Illiana explains, "(the CSR) said this had to be on letterhead of a physician certified by the college of physicians and surgeons Ontario." Unfortunately, the College of Physicians and Surgeons of Ontario does not certify psychologists; that would be a job for the similarly named, but distinct, College of Psychologists of Ontario.

This issue may have been simply due to miscommunication. However, best case, the rep is just confused, but is incompetently providing misinformation to Trans* clients. Worst case, the application form is actually erroneous, and a psych letter won't get your application through the process.

Admirably keeping her wits about her, Illiana pointed out the discrepancy to the CSR. "Nowhere is that criteria stated on the Service Ontario website... and the application form clearly states... psychologist (is acceptable)." Of the CSR's reaction, Illiana had this to say: "She seemed to relent, and I'm not sure whether she was trying to purposely mislead me, or she had no idea what the form read, or what psychology is."

Based on my own experiences with government bureaucracy, I find it most likely that the rep was simply in error... however, Illiana's reaction underscores the fundamental truth: Trans* people have little motivation to trust agencies of federal and provincial governments which - have - consistently - failed - them - at - almost - every - turn.

But wait, there's more.

That was not the only problem with Illiana's letter, the rep told her. In addition to the misunderstanding as to whether or not a psychologist's letter qualifies as a letter written by a "doctor or psychologist," apparently the registrar also disapproved of the particular phrasing in Illiana's letter. She explains, the rep told her "the letter isn't accepted without an explicit statement that the birth certificate change is 'male to female.' The Registrar rejected (my psychologist's) letter... because it only said that the birth certificate sex designation is incorrect as it is, and should be changed."

Really? The published guidelines given to Trans* people on the Registrar website, and on the application form itself, state that the text of the doctor or psychologist letter "c. confirms that the applicant's gender identity does not accord with the sex designation on the applicant's birth registration; and d. is of the opinion that the change of sex designation on the birth registration is appropriate." Illiana says her psychologist wrote "...the birth certificate sex designation is incorrect as it is, and should be changed." And the registrar's office canned it because it didn't use the magic words "male to female," a requirement which is not published anywhere.

Infuriatingly, Illiana further reports "(the CSR) also said that several other applications such as mine have been similarly rejected."

Are you kidding me, Registrar General? Since the Ontario registrar does not recognize non-binary identities, one wonders what could possibly be the source of confusion here. Especially given that the separate Statutory Declaration form, which must also be submitted in the same package, is explicitly filled out by the applicant with a request to change sex designation "from (fill in blank) to (fill in blank)". Illiana's read "male" to "female," and her existing birth record read "male," so it's not as if there was any potential for misunderstanding.

Regarding the entire debacle, Illiana suggests "I have doubts that the current published criteria are understood by the Registrar's office staff, and since they reject complete applications based on unpublished criteria, (they) are not honoring the ruling of the tribunal in good faith." Hear, hear.

Some clarity, and a post-nonsense happy ending for Illiana? Illiana is to be commended for challenging the transphobic discrimination she experienced at the hands of the Registrar's office. Whether it was caused by wilfully disruptive anti-trans staff, or perhaps just institutional ignorance, it is unacceptable regardless. Because Illiana had the courage to follow-up with a challenge, she was contacted soon afterward by the Deputy Registrar, Sandra Leonetti.

"She was very nice and explained that they are in a learning mode with regard to the new requirements, and I should resubmit the package with a letter stating that I don't have the long form birth certificate, and with the psychologist's letter that accompanied the original application."

That is a bit of good news for Illiana... As for anyone else who has had their application rejected under murky circumstances, you might want to get in touch with the Office of the Registrar General.

"After talking with Ms. Leonetti, I feel that she is sincere about providing fair service, including Changes of Sex Designation applications. I feel that not all people in the Registrar's office are up to speed on everything to do with the new process. I expect that things will improve with regard to application processing as the people in that office get better acquainted with what is really required."

It is a shame that the "learning process" at the Registrar's office has come at the expense of Ontario Trans* people. Let us hope that they get their staff training issue under control.

Have you had a similar problem? Anyone who would like my help, or who has a story they'd like to share, please contact me.

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Obama endorses same sex marriage

5/11/2012

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What does it mean that Obama has endorsed same sex marriage?
Is it
-    a political calculation that he will gain more votes than he will lose by taking this position
-    one of the only progressive things he can do since he doesn't control the Senate or Congress
-    made necessary because Joe Biden said it first
-    a genuine stand for the civil rights of same sex partners
-    all of the above?
I expect that it is all of the above, and more reasons we don't know.

And does it matter?
Definitely.
Before the same sex marriage fight in Canada, people thought that same sex marriage was just a matter of opinion. After we won the marriage cases, forcing the federal government to amend the Marriage Act to permit same sex marriage, Canadians understand that marriage is a Charter-protected civil right. And that has made a huge difference to the general acceptance of queers in this country.

The right is right: gay marriage does change the nature of marriage, because marriage is not exclusive any more. And that is a good thing. It moves us closer to the day when everyone - whether married, common law, or "single" - can have the social benefits which started out available only to married heterosexuals. Such benefits include everything from pension benefits to preferential tax treatment to 'family' discounts. Fully a quarter of the laws of BC affect one's rights as a member of a couple or a family.

I spoke to some queers in the U.S. yesterday about Obama's announcement, and they said that it has had a galvanizing effect on queers there, who are feeling energized and proud about Obama's statement. All the best to our US queer friends and allies in this fight!

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University must permit anti-gay leafletting

5/11/2012

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Whatcott went to the University of Calgary to distribute anti-gay leaflets. The University charged him with trespassing. Whatcott argued successfully that the university cannot charge him with trespassing in those circumstances, because his right to distribute anti-gay leaflets is protected by the guarantee of freedom of expression in the Charter of Rights.
For the complete decision: R v Whatcott
http://www.canlii.org/eliisa/highlight.do?text=whatcott&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/ab/abqb/doc/2012/2012abqb231/2012abqb231.html

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Common law partners don't suffer social disapproval any more; so can't claim same financial regime as married partners, says SCC

Where's the line of hate speech?

Remember the Charter of Rights? Not so fast...

Toronto Catholic School Board sees the light

No to Hate Speech about Queers, says Supreme Court of Canada (but...)

No hope that census will reflect Canadians' lives

An Ontario trans victory ???

Obama endorses same sex marriage

University must permit anti-gay leafletting

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