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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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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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Malaysian transsexuals lose court case

11/2/2012

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The BBC reports today that four Malaysian transsexual women have lost their challenge to a Sharia law making it an offence to wear women's clothes.  The four had all been arrested several times for wearing women's clothes.  They had gone to a secular court to have the Sharia law overturned, on the ground that it offended freedom of expression and gender protection.  But their application was refused. 
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Pastor convicted of helping 'ex-lesbian' leave US to escape custody battle with her ex partner

8/16/2012

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A Virginia Mennonite pastor  was convicted August 13 2012 of helping a former lesbian flee the country with her young daughter. Lisa Miller had been in a lesbian relationship and had a child with her partner.  Miller was the birth mother.

Miller  later joined the Mennonite church and renounced her lesbianism.  There was a custody battle between Miller and her ex.  Her pastor, Timothy Miller (no relation) helped her get out of the United States. 

It is reassuring to see a Virginia court recognize the status and rights of the non-bio-mom.
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