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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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Married to an American?  They can take you home now...

8/6/2013

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U.S. citizens living abroad with their non-U.S. partners can now bring their partners home with them.
As a followup to last month's announcement permitting lesbian and gay Americans to sponsor their partners for permanent residence, the U.S. has announced that it will extend the same visa rights to same sex partners as to opposite-sex partners.  So Americans can bring their partners home, or travel with them.
For the whole story: http://www.reuters.com/article/2013/08/02/us-usa-gays-visas-idUSBRE9710NT20130802

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Could it happen here?

4/19/2013

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A lesbian phys ed teacher was fired after 19 years when the Catholic school board she worked for found out she was a lesbian.

The teacher worked in Columbus, Ohio.  Her sexual orientation came to light after her mother's obituary mentioned her female partner.  After a complaint from a parent who read the obituary, the diocese fired her, saying she had "violated the school's moral policy".

Could it happen in B.C.?

Shockingly, the answer is 'yes'.  Though such treatment is discriminatory, the Catholic employer gets off the hook under a provision in the B.C. Human Rights Code which exempts non-profit groups who exist to serve people on the basis of their race, religion, gender, sexual orientation etc (any ground protected under the Code) from complying with human rights laws.

That's how Rape Relief is able to exclude transsexual women.  We are a non-profit, we are here to serve women, so we are free to discriminate if we want to, they argued.  They won.

So too did the Catholic Church win in a 1983 decision in which they fired a school teacher (heterosexual) because she was living with a partner outside of marriage.  The Supreme Court of Canada said that the provision of the Code gave them a licence to discriminate.

The provision of the Code was intended to prevent men from complaining that they can't get services from women's groups, or non native people from complaining that they can't get service from an aboriginal friendship centre, for example.  But it is jaw-droppingly wrong that such organizations are entitled to discriminate among the population they exist to serve. 

Under the law as it is written, a disability rights group could turn away someone with AIDS; a women's group could exclude women of colour...the list goes on.
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November 02nd, 2012

11/2/2012

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In a progressive judgement, the Federal Court of Canada has decided that there is an  an obligation upon the Refugee Protection Division  to specifically discuss why the Applicant, as a homosexual living in a place where it has been demonstrated that homosexuals are harassed, would not be subjected to persecution as she cannot live her sexual orientation openly. Some GLB refugee claims are thrown out because a person cannot prove that they are queer.  Here the applicant proved that, and also proved that in her home country queers faced persecution.  This is an important case because it says that it is up to the government to show she would be safe returning home, rather than up to her to demonstrate that she would be in danger.  C.C.F. v. Canada (Minister of Citizenship and Immigration), [2012] F.C.J. No. 1346


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Canada is suspicious of spouses sponsoring their partners

10/31/2012

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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. 

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Great news for Ugandan lesbian facing deportation

8/6/2012

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Ugandan Leatitia Nanziri, slated for deportation because neither the Refugee Division nor Immigration Canada believed she was a lesbian, has been granted a reprieve by the Federal Court which reviewed her case.  The court sent her case back for redetermination; that will happen in about six months.  Her stay in Canada, with her two Canadian-born children, is not yet assured, but this is a very positive development.

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How would YOU prove you are queer?

7/27/2012

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Immigration Canada denied Leatitia Nanziri's claim for refugee status because they don't believe she is a lesbian.  Nanziri fled Uganda when she was outed by her girlfriend's father.  Lesbians in Uganda are often stoned to death.
The Refugee Division refused her claim because she was carrying a child when she arrived:  a product of having been raped.  Then they turned down her claim to stay in Canada on compassionate grounds because she had a second child in Canada, with a man.
Canada doesn't understand that if you live in a repressive country  you may hide your sexual orientation; you may have a heterosexual marriage.  And just like many Canadian lesbians with a husband and maybe children in their past, Ugandan lesbians may marry...and still be lesbians.
It is deeply distressing that Nanziri will be going back to Uganda to face the possibility of death for being queer, when Canada, a country that styles itself as supportive of queers, has sent her there.

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Good news for HIV+ immigrants with a plan to pay for meds

6/6/2012

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Generally speaking, people who are HIV+ are inadmissible to Canada because their illness will result in a disproportionate burden to Canada's health care system.  In fact, if a person has any illness which will probably cost more than an average Canadian costs in health care dollars over the next five years, he or she is "medically inadmissible".
But in Ovalle v Canada the Federal Court has said that if the immigrant can show that he has another way to fund his medical care, he is not 'medically inadmissible'. 

In Ovalle v Canada [2012] FCJ No 523, Mr. Ovalle had demonstrated that although he was HIV+ and would require about $18,000 per year in care, he would not cost the Canadian health care system disproportionately.  His doctor said he would probably enjoy good health for the next 5-10 years.  A non-profit group called "Aid for AIDS International" said it would provide free antiretroviral medication even after Mr. Ovalle moved to Canada. Mr. Ovalle's prospective Canadian employer said he would be covered under the firm's health care plan for at least $1500 per  year.   Mr. Ovalle agreed to assume responsibility for the social services he would need in Canada.


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