Queer Cases: A Selected Chronology
This is a chronology of cases which affect the rights of lesbian, gay, bisexual and transgender people in Canada.
With respect to cases from the Supreme Court of Canada it is current to March 2014. The title of those cases are in blue.
Cases from Courts of Appeal across the country, and human rights cases from B.C., are being added. But don't assume that all important cases from lower courts are here. The title of lower-court cases are in green. The title of human rights tribunal cases are in purple.
You can read the whole case by clicking on the hyperlink.
1967
R. v. Klippert [1967] S.C.R. 822
.
In 1967, it was still a crime to have sex with someone of the same gender: it was called ‘gross indecency’. Klippert pled guilty to four counts of gross indecency. Though the evidence on sentencing was that Klippert had never caused harm to anyone and was unlikely to do so in the future. The Crown succeeded in having him declared a dangerous sexual offender – for being gay. And the Supreme Court of Canada upheld the conviction.
1970
R. v. Lupien [1970] S.C.R. 263
Lupien was charged with gross indecency (sex with a man) after being discovered with a drag queen. He wanted to introduce psychiatric evidence to the effect that he was so repulsed by homosexuality that he would never have had sex with a man. The Supreme Court of Canada said the evidence was inadmissible because it would amount to asking the psychiatrist whether the accused had the intent to commit the crime, which was up to the court to decide.
1979
Gay Alliance Toward Equality v. Vancouver Sun [1979] 2 S.C.R. 435
In the first case about gay rights to reach the Supreme Court of Canada, the Court ducked the issue. The case was about whether it was discriminatory for the Vancouver Sun to run a small ad that said “Subs to Gay Tide $1.00 2336 Yew St” when the newspaper admittedly ran ads for blue movies. The court avoided the issue of discrimination by holding that the classified ad section of the Sun is not a “service…customarily available to the public and therefore human rights law did not apply."
1992
R. v. Butler [1992] S.C.J. No. 15
In this case, the Supreme Court of Canada adopted an interpretation of what “obscenity” is which was urged by LEAF, a feminist advocacy group. The Criminal Code says "any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of ... crime, horror, cruelty and violence, shall be deemed to be obscene". In this case the Court said that material that demeans women is obscene, and that consent does not necessarily take it out of the category of obscenity. The Butler decision was later challenged by Little Sisters because of its impact on homoerotic material.
1993
Canada (Attorney General) v. Mossop [1993] 1 S.C.R. 554 Feb 25 1993
Mossop, a unionized federal employee, was denied bereavement leave to attend the funeral of his partner’s parent, in circumstances where a heterosexual would have been able to attend his partner’s parent’s funeral. Was this discrimination? The Supreme Court of Canada said that because the Canadian Human Rights Act did not include discrimination on the basis of “sexual orientation”, the refusal was not discriminatory.
1995
ter Neuzen v. Korn [1995] 3 S.C.R. 674 Oct 19 1005
A trial award of damages to a woman who was infected with HIV through assisted insemination was reversed because at the time of her treatments, it was not generally known that HIV could be transmitted through AI
Ghidoni v Ghidoni 1995 CanLII 1018 (BC SC)
This is a case about two parents, and the father's decision to transition from male to female. The court eventually ordered that one child stay with their father, the other with their mother. An interesting historical look at how trans parents were viewed 20 years ago.
Egan v. Canada [1995] 2 S.C.R. 513
This is the case which established gay rights in Canada. Egan was denied a pension when his partner died, which would have been available to him if his partner was a woman. A majority of the court held that this contravened the equality rights section of the Canadian Charter of Rights and Freedoms. Because the Charter of Rights is part of the Constitution, it trumps ordinary legislation. But though Egan won the war, he lost the battle: one of the majority said that though there was discrimination, the governments discrimination was justified under section 1 of the Charter, which permits breaches of the Charter if they are justifiable in a free and democratic society.
Vogel v. Manitoba 1995 CanLII 6260 June 14, 1995
The denial of spousal benefits under Vogel's employment benefit plans to his same-sex partner is the result of their sexual orientation, and is, therefore, discriminatory treatment under the Human Rights Code of Manitoba.
1998
R. v. Cuerrier [1998] 2 S.C.R. 371 Mar 21, 1998
Cuerrier was HIV+. Though he had been instructed by a public health nurse to advise all of his sexual partners of his status, and to use a condom, he had unprotected sex with two women without disclosing his HIV status. The two women consented to sex with him, but testified that they would not have consented if they had known he was HIV+. The Supreme Court of Canada held that hiding HIV status was a type of fraud which could void any consent to intercourse.
Vriend v. Alberta [1998] S.C.J. No. 29
Vriend was fired from his non-teaching job by a Catholic School Board in Alberta when his employer learned he was gay. The Alberta human rights legislation did not include protection on the basis of sexual orientation. The Supreme Court of Canada concluded unanimously that the omission of protection in the human rights legislation was itself discriminatory, and the Court went to the extraordinary length of ‘writing in protection on the basis of sexual orientation to the Alberta law.
1999
M v H [1999] 2 S.C.R. 3
M and H were two lesbians who not only lived together, but shared a business which supported both of them. When they broke up, M was locked out and shut out of the business. She argued, successfully, that the family law of Ontario should apply to her same sex relationship so that she was eligible for spousal support from her ex-partner. This is a landmark ruling for the recognition of same sex relationships in family law.
Mamela v Vancouver Lesbian Connection [1999] BCHRTD #51
Susan Mamela was a male to female transsexual woman who was volunteering at the Library at the Vancouver Lesbian Connection. She was dismissed from her position and banned from the VLC on the basis of their characterization of her behavior as inappropriate, aggressive and “mannish”.
“The Tribunal held that VLC discriminated against her on the ground of sex, and awarded her $3000 for injury to dignity.
Ferris v OTEU Local 15 [1999] B.C.H.R.T.D. No. 55
Ferris, a transsexual woman, worked as a cab dispatcher. A complaint was filed about the fact that she was using the women’s washroom.
In acting for Ferris as it was legally obliged to do, the union
- invited a female union rep to a meeting who turned out to be the person who complained about Ferris;
- scheduled a meeting with the employer without advising Ferris, who was disciplined for missing the meeting;
- made a decision in her absence about her use of the women’s washroom, even though there was already a key system in place which made the issue moot
- failed to attend a meeting Ms Ferris asked him to go to because she was in the hospital; and
- wrote a glib and dismissive letter refusing Ms Ferris’ request to file a grievance
The tribunal concluded that the union treated Ferris worse than it would have treated another union member, and that the union had discriminated against Ferris.
2000
Little Sisters Book and Art Emporium v. Canada (Minister of Justice) [2000] 2 S.C.R. 1120 Dec 15 2000
Little Sisters, B.C.’s preeminent gay and lesbian bookstore, was harassed by Customs, who routinely held up their book orders at the border. The Supreme Court of Canada held that Parliament did not violate the Charter by having a customs regime which included inspecting books for obscenity. But the part of the law which required the importer to demonstrate that a publication was not obscene was unconstitutional because it violated the guarantee of freedom of speech. And the Court held that Customs violated the Charter by the manner in which it applied the law, often taking more than a year to make a decision.
2001
R. v. Sharpe [2001] 1 S.C.R. 45 Jan 26, 2001
The issue was where to draw the line between freedom of expression, a Charter-protected right, and possession of child pornography. The Court said that the definition of the crime in the Criminal Code should be read to exclude (1) any written material or visual representation created by the accused alone, and held by the accused alone, exclusively for his or her own personal use; and (2) any visual recording, created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use.
Trinity Western University v. British Columbia College of Teachers [2001] 1 S.C.R. 772
Trinity Western is a private university associated with fundamentalist Christian beliefs. Its Standards of Conduct, which it required faculty, staff, and students to sign, included “sexual sins, including homosexuality” among the list of Biblically condemned conduct. When Trinity Western applied to the B.C. College of Teachers to assume complete responsibility for educating teachers, instead of having them spend the fifth year of their training at Simon Fraser University, the BCCT refused, concerned that the education prospective teachers received was homophobic. The Supreme Court of Canada overruled that decision, saying that there was no evidence that the Standards of Conduct did or would lead to homophobic conduct by teachers educated at Trinity Western after they graduated.
Walker Estate v. York Finch General Hospital [2001] 1 S.C.R. 647 April 19, 2001
The Canadian Red Cross Society was held to be negligent in failing to adequately screen out gay and bisexual men who might be HIV+.
Gill v Murray 2001 BCHRT 34
Two lesbian couples filed a complaint of discrimination on the basis of sex and sexual orientation against the Vital Statistics Registry because the Registry refused to put the names of their children's non-bio co-mother on the birth certificate. The evidence established that many children of straight parents had genetically unrelated fathers because they were conceived with assisted insemination; such fathers were registered on their child's birth certificate without any inquiry into whether the father was genetically connected. So the complainants were successful.
2002
Webb v. Waterloo (Region) Police Services Board [2002] S.C.C.A. No. 395 Sept 30, 2002
The issue before the Ontario Court of Appeal was whether a police ‘sting operation targeting gay men having public sex, and then publishing the names of the men they arrested, was contrary to the Charter of Rights. That court held it was not contrary to the Charter rights of gay men; it was a matter of an individual having sex in the park.The Supreme Court of Canada refused to hear an appeal of the case.
Chamberlain v. Surrey School District No. 36 [2002] 4 S.C.R. 710 Dec 30 2002
The Surrey School Board refused a request from James Chamberlain, a grade one teacher, to include books showing same-sex families in the library. The Boards decision was based on concerns that agreeing to do so would offend Christian parents. The Supreme Court of Canada held that the School Board discriminated on the basis of sexual orientation and was not entitled to rely on its perception of parents’ religious beliefs; and directed the Board to reconsider the issue properly.
2003
Barbeau et al v AG Canada and AGBC [2003] B.C.J. No.994 BC CA May 1, 2003
The BC Court of Appeal held that it was discriminatory, and counter to the equality guarantee in the Charter of Rights, to deny marriage to same sex couples.
Halpern v. Canada (Attorney general) 65 OR (3d) 161 June 2003
The Ontario Court of Appeal held that it was discriminatory, and counter to the equality guarantee in the Charter of Rights, to deny marriage to same sex couples.
Waters v. British Columbia (Ministry of Health Services)
[2003] B.C.H.R.T.D. No. 11
Waters filed a complaint saying it was discriminatory to fund surgical procedures not available in BC for MtF patients at the usual and customary rates, but not phalloplasties.
The tribunal found for Waters. It held that because his procedure had been begun, he was entitled to complete it. They awarded him the sum of $29,749.21 for physician services related to his previous phalloplasty-related surgeries as well as covering some of the costs of hospitalization during his recovery. They further ordered MSP to pay for future physician services to complete Mr. Waters’ phalloplasty and awarded him $1000 for legal expenses incurred prior to filing the complaint. In addition he was awarded $6500 for injury to dignity.
2004
Catholic Civil Rights League v. Hendricks 2004 CanLII 20538 (QC CA)
This case confirmed same sex marriage in Quebec. The Quebec Court of Appeal rejected the attempt by the Catholic Civil Rights League to appeal the decision of the lower court authorizing same sex marriage. The Catholic Civil Rights League had been an ‘intervenor’ but not a party in the case in the lower court.
Dunbar & Edge v. Yukon (Government of) & Canada(A.G.) 2004 YKSC 54 July 14, 2004
This case confirms same sex marriage in the Yukon.
N.W. v. Canada (Attorney General) 2004 SKQB 434 Nov 5 2004
Saskatchewan confirms the right to same sex marriage.
2004
North Vancouver School District No 44 v Jubran [2005] B.C.J. No. 733
Jubran was a straight high school student, but he was bullied because other students thought he was gay. The BC Human Rights Tribunal held that the school district failed in its duty to protect Jubran from bullying, but that decision was overturned by the lower court which held that since Jubran was not actually gay he was not protected by the Human Rights Code. The BC Court of Appeal said that the Human Rights Code protects you whether you are gay, or are perceived to be gay.
Reference re Same-Sex Marriage 2004 SCC 79 Dec 9 2004
The federal government asked the Supreme Court of Canada for its opinion about whether it was constitutional and consistent with the Charter of Rights to amend the Marriage Act to say:
1. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.
2. Nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs.
The Court said the proposed law was constitutional and consistent with the Charter.
Kempling v BC College of Teachers [2005] B.C.J. No. 1288 BCCA June 13 2005
Kempling, a teacher, published a letter in the local newspaper associating homosexuals with immorality, abnormality, promiscuity and perversion. The BCTF suspended his teacher’s licence for one month. He did not appear at the BCTF hearing, but later argued that his freedom of religion had been infringed. The BC Court of Appeal disagreed, saying that since he had not shown up for the suspension hearing hearing there was no evidence that his religious freedom was affected.
Vancouver Rape Relief Society, v Kimberly Nixon [2005] B.C.J. No. 2647 Dec 7, 2005
Nixon was a post-operative transsexual woman whose birth certificate showed her to be female. Rape Relief kicked her out of their volunteer training when they learned she was transsexual. The Court of Appeal held that, although Rape Relief had discriminated against Nixon, as a community group whose primary purpose was to serve a human rights-protected group, they were allowed to discriminate by the ‘group rights exemption’ under the Human Rights Code.
(This case and the ones which led up to it have been cited in more than 70 scholarly articles).
2006
Owens v. Saskatchewan (Human Rights Commission) April 13, 2006.
In Gay Pride Week, Owens published bumper stickers which showed two stick men, hands joined, with a ‘not permitted’ sign over it; and bible quotes. Though the Saskatchewan Human Rights Commission and, on appeal, the court below held that Owens had violated the hate speech provisions of the Human Rights Code, the Court of Appeal said that Owens was just expressing his opinion in the debate about sexuality which debate had been stirred by the proclamation of Gay Pride Week. Owens’ freedom of expression of his views was protected.
2007
Alliance for Marriage and Family v. A.A .[2007] S.C.J. No. 40
The Alliance for Marriage and the Family is a homophobic group which wanted to intervene and appeal a decision of the Ontario Court of Appeal that which held two lesbian partners could both be considered the mother of a child born to one of them. The Court refused to permit them to appeal when they had not been a part of the case in the first place.
Little Sisters Book and Art Emporium v.Canada (Commissioner of Customs and Revenue)[2007] S.C.J.No. 2
The Supreme Court of Canada agreed with the BC Court of Appeal, which had overturned a decision that had advanced costs to Little Sisters to enable them to challenge the way that Customs operated. Customs had continued to detain their books even after being successfully challenged by Little Sisters in an earlier case, and so Little Sisters had sought advance costs to fund their case, and a comprehensive review of Customs operations.
2008
WIC Radio Ltd. v. Simpson [2008] S.C.J. No. 41
Rafe Mair was a well-known B.C. radio talk show host whose shows focused on controversial current affairs. He read a column criticizing Kari Simpson, who had a public reputation as a leader of those opposed to schools teaching acceptance of a gay lifestyle. Simpson had helped to write a so-called “Declaration of Family Rights’, a document designed to enable parents to assert that their children should be exempted from participation in school sessions which would expose their children to any teaching which “portrays the lifestyle of gays ... as one which is normal, acceptable or must be tolerated”. Simpson had also been involved on the anti-gay side of the question of whether the Surrey School Board should permit three books for first-graders which talked about gay families, and had been involved in a recall campaign against Paul Ramsey, a Prince George MLA, because of his position on gay issues.
In his editorial, Mair had compared Simpson to Hitler, Wallace, Faubus or Barnett. Though he specifically said the following: “Now I’m not suggesting that Kari was proposing or supporting any kind of holocaust or violence, but neither, really in the speeches when you think about it and look back were Hitler or Wallace or Orval Faubus, or Ross Barnett, they were simply declaring their hostility to a minority, let the mob do as they wished,” The trial judge found that Mair had defamed (harmed the reputation of) Simpson.
However, the judge went on to hold that Mair was entitled to rely on the defence of ‘fair comment’. Fair comment means that you can express an opinion, based on facts that are true, on an issue of public interest, even if your opinion is defamatory – in other words even if your opinion harms someone’s reputation. So Mair had harmed Simpson’s reputation, but he had a right to do so.
So Simpson lost.
The BC Court of Appeal disagreed with the trial judge, and said Simpson should win.
The case was appealed to the Supreme Court of Canada. The court listed some of the explicitly anti-gay statements that Simpson had made, including for example that homosexuality is not normal, and that “tolerance” is driven by political correctness. And the court went on to hold that in a free and democratic society, journalists should be free to express their opinions on matters of public debate. The Supreme Court of Canada was concerned to make sure that journalists did not refrain from covering controversial issues for fear of being sued.
So, in the end, Kari Simpson lost.
Chiang v. Vancouver Board of Education [2009] B.C.H.R.T.D. No. 319
This decision is about allegations of discrimination based on religion in relation to anti-homophobia initiatives created at University Hill School. Po Yu Emmy Chiang, a teacher and the school librarian, alleged that the respondents stereotyped, harassed and mistreated her in their actions based on stereotypes they had about Christians. Chiang was a sponsor teacher of the Christian Fellowship Club.
After the teacher sponsor of the school Pride Club, a Gay/Straight Alliance, distributed rainbow stickers and distributed an email with a link to homophobic activity by a small Baptist congregation, Chiang requested permission to speak to the GSA about Christianity or that they have a Youth Pastor attend. Her requests were refused. Chiang also failed to process LGBT books donated to the library despite a direction from the principal, and subsequent disciplinary action with respect to her refusal.
The tribunal found that Chiang had never complained of a violation of her religious freedom, but rather was concerned about how others might perceive those beliefs. Therefore, the tribunal ruled, there was no basis to her complaint, which was dismissed.
2010
Whatcott v Saskatchewan Human Rights Tribunal 2010 SKCA 26( Sask. Court of Appeal) Feb 25, 2010
Whatcott distributed flyers which described gays and lesbians in derogatory terms, advocated the re-criminalization of sodomy, and argued that children in the education system were at risk. Though the Saskatchewan Human Rights Tribunal found him guilty of promoting hatred, the Saskatchewan Court of Appeal said that they had made an error for two reasons: they should not have considered the subjective impact on people, and they should have taken into account that the comments were part of a debate about school boards.
L.M. v. E.A. 2010 QCCS 4390; [2011] S.C.C.A. No. 429
The applicant and the respondent were married in Mexico in 2004, had a daughter in 2005 and separated in 2006. In March 2007, the mother was awarded custody of the child. At the end of the same year, the father filed a complaint against the mother for corruption of a minor, alleging that the child was exposed to the mother's homosexuality. He sought and obtained custody of the child on that ground in September 2008, eight days after the mother and child arrived in Quebec. In March 2009, the mother instituted proceedings in Quebec seeking custody of the child. In April 2009, after an acquittal was appealed by the prosecution, a Mexican court found the mother guilty of corruption of a minor, a crime punishable by two to ten years of imprisonment. An arrest warrant was issued. In Montréal, the mother obtained temporary custody of the child; however, the father filed a motion seeking the child's return. Between the Superior Court's judgment on that motion and the judgment of the Court of Appeal, a Mexican decision was rendered quashing the mother's conviction through a constitutional review (Amparo).
The Court of Appeal upheld the mothers’ right to custody of the child; and the Supreme Court of Canada refused to hear an appeal from that decision.
2011
IN THE MATTER OF Marriage Commissioners Appointed Under The Marriage Act [2011] S.J. No. 3
The legislature asked the Saskatchewan Court of Appeal to say whether changes to the Marriage Act to permit a marriage commissioner to refuse to solemnize a same sex marriage if same sex marriage was against their religion. The Court said that the amendment would violate the equality rights of gay and lesbian people under the Charter of Rights; and such a violation could not be justified as a reasonable limit. Religious freedom is not absolute and in this case had to yield to the equality rights of gay and lesbian people.
2013
Brodeur v. Ontario (Minister of Health and Long-Term Care) 2013 HRTO 1229 (Ontario Human Rights Tribunal)
The applicants were male to female transsexuals who had had transsexual surgery. They sought medicare funding for electrolysis, voice therapy, and breast augmentation; and argued that the denial of those services constituted discrimination on the basis of sex.
The tribunal held that the ground of ‘sex’ covered the complaint Though ‘gender identity’ was added to the Human Rights Code after this complaint was filed, that did not mean the complaint could not go forward on the ground of sex.
However the complainants lost, because they could not point to a similar service that was available to other people but denied to them because they were trans. No one was covered to have voice therapy or electrolysis; and the same rules about breast augmentation for non-trans people applied to trans people. (That rule is that if you do not have breast tissue, a condition called aplasia, you can get breast augmentation. If you do have breast tissue – including as a result of taking hormones – you will not get breast augmentation). In relation to the claim for voice therapy, the claimants’ evidence did not establish that voice therapy was medically necessary, the standard in the OHIP coverage.
This case is a must-read for anyone wanting to challenge funding for trans-related care.
Saskatchewan (Human Rights Commission) v. Whatcott 2013 SCJ 11
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.
Cases that link to The Supreme Court Decisions and the Canlii websites reflect the current status of the case.
All others are current to the time of research, March 2014.
This is a chronology of cases which affect the rights of lesbian, gay, bisexual and transgender people in Canada.
With respect to cases from the Supreme Court of Canada it is current to March 2014. The title of those cases are in blue.
Cases from Courts of Appeal across the country, and human rights cases from B.C., are being added. But don't assume that all important cases from lower courts are here. The title of lower-court cases are in green. The title of human rights tribunal cases are in purple.
You can read the whole case by clicking on the hyperlink.
1967
R. v. Klippert [1967] S.C.R. 822
.
In 1967, it was still a crime to have sex with someone of the same gender: it was called ‘gross indecency’. Klippert pled guilty to four counts of gross indecency. Though the evidence on sentencing was that Klippert had never caused harm to anyone and was unlikely to do so in the future. The Crown succeeded in having him declared a dangerous sexual offender – for being gay. And the Supreme Court of Canada upheld the conviction.
1970
R. v. Lupien [1970] S.C.R. 263
Lupien was charged with gross indecency (sex with a man) after being discovered with a drag queen. He wanted to introduce psychiatric evidence to the effect that he was so repulsed by homosexuality that he would never have had sex with a man. The Supreme Court of Canada said the evidence was inadmissible because it would amount to asking the psychiatrist whether the accused had the intent to commit the crime, which was up to the court to decide.
1979
Gay Alliance Toward Equality v. Vancouver Sun [1979] 2 S.C.R. 435
In the first case about gay rights to reach the Supreme Court of Canada, the Court ducked the issue. The case was about whether it was discriminatory for the Vancouver Sun to run a small ad that said “Subs to Gay Tide $1.00 2336 Yew St” when the newspaper admittedly ran ads for blue movies. The court avoided the issue of discrimination by holding that the classified ad section of the Sun is not a “service…customarily available to the public and therefore human rights law did not apply."
1992
R. v. Butler [1992] S.C.J. No. 15
In this case, the Supreme Court of Canada adopted an interpretation of what “obscenity” is which was urged by LEAF, a feminist advocacy group. The Criminal Code says "any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of ... crime, horror, cruelty and violence, shall be deemed to be obscene". In this case the Court said that material that demeans women is obscene, and that consent does not necessarily take it out of the category of obscenity. The Butler decision was later challenged by Little Sisters because of its impact on homoerotic material.
1993
Canada (Attorney General) v. Mossop [1993] 1 S.C.R. 554 Feb 25 1993
Mossop, a unionized federal employee, was denied bereavement leave to attend the funeral of his partner’s parent, in circumstances where a heterosexual would have been able to attend his partner’s parent’s funeral. Was this discrimination? The Supreme Court of Canada said that because the Canadian Human Rights Act did not include discrimination on the basis of “sexual orientation”, the refusal was not discriminatory.
1995
ter Neuzen v. Korn [1995] 3 S.C.R. 674 Oct 19 1005
A trial award of damages to a woman who was infected with HIV through assisted insemination was reversed because at the time of her treatments, it was not generally known that HIV could be transmitted through AI
Ghidoni v Ghidoni 1995 CanLII 1018 (BC SC)
This is a case about two parents, and the father's decision to transition from male to female. The court eventually ordered that one child stay with their father, the other with their mother. An interesting historical look at how trans parents were viewed 20 years ago.
Egan v. Canada [1995] 2 S.C.R. 513
This is the case which established gay rights in Canada. Egan was denied a pension when his partner died, which would have been available to him if his partner was a woman. A majority of the court held that this contravened the equality rights section of the Canadian Charter of Rights and Freedoms. Because the Charter of Rights is part of the Constitution, it trumps ordinary legislation. But though Egan won the war, he lost the battle: one of the majority said that though there was discrimination, the governments discrimination was justified under section 1 of the Charter, which permits breaches of the Charter if they are justifiable in a free and democratic society.
Vogel v. Manitoba 1995 CanLII 6260 June 14, 1995
The denial of spousal benefits under Vogel's employment benefit plans to his same-sex partner is the result of their sexual orientation, and is, therefore, discriminatory treatment under the Human Rights Code of Manitoba.
1998
R. v. Cuerrier [1998] 2 S.C.R. 371 Mar 21, 1998
Cuerrier was HIV+. Though he had been instructed by a public health nurse to advise all of his sexual partners of his status, and to use a condom, he had unprotected sex with two women without disclosing his HIV status. The two women consented to sex with him, but testified that they would not have consented if they had known he was HIV+. The Supreme Court of Canada held that hiding HIV status was a type of fraud which could void any consent to intercourse.
Vriend v. Alberta [1998] S.C.J. No. 29
Vriend was fired from his non-teaching job by a Catholic School Board in Alberta when his employer learned he was gay. The Alberta human rights legislation did not include protection on the basis of sexual orientation. The Supreme Court of Canada concluded unanimously that the omission of protection in the human rights legislation was itself discriminatory, and the Court went to the extraordinary length of ‘writing in protection on the basis of sexual orientation to the Alberta law.
1999
M v H [1999] 2 S.C.R. 3
M and H were two lesbians who not only lived together, but shared a business which supported both of them. When they broke up, M was locked out and shut out of the business. She argued, successfully, that the family law of Ontario should apply to her same sex relationship so that she was eligible for spousal support from her ex-partner. This is a landmark ruling for the recognition of same sex relationships in family law.
Mamela v Vancouver Lesbian Connection [1999] BCHRTD #51
Susan Mamela was a male to female transsexual woman who was volunteering at the Library at the Vancouver Lesbian Connection. She was dismissed from her position and banned from the VLC on the basis of their characterization of her behavior as inappropriate, aggressive and “mannish”.
“The Tribunal held that VLC discriminated against her on the ground of sex, and awarded her $3000 for injury to dignity.
Ferris v OTEU Local 15 [1999] B.C.H.R.T.D. No. 55
Ferris, a transsexual woman, worked as a cab dispatcher. A complaint was filed about the fact that she was using the women’s washroom.
In acting for Ferris as it was legally obliged to do, the union
- invited a female union rep to a meeting who turned out to be the person who complained about Ferris;
- scheduled a meeting with the employer without advising Ferris, who was disciplined for missing the meeting;
- made a decision in her absence about her use of the women’s washroom, even though there was already a key system in place which made the issue moot
- failed to attend a meeting Ms Ferris asked him to go to because she was in the hospital; and
- wrote a glib and dismissive letter refusing Ms Ferris’ request to file a grievance
The tribunal concluded that the union treated Ferris worse than it would have treated another union member, and that the union had discriminated against Ferris.
2000
Little Sisters Book and Art Emporium v. Canada (Minister of Justice) [2000] 2 S.C.R. 1120 Dec 15 2000
Little Sisters, B.C.’s preeminent gay and lesbian bookstore, was harassed by Customs, who routinely held up their book orders at the border. The Supreme Court of Canada held that Parliament did not violate the Charter by having a customs regime which included inspecting books for obscenity. But the part of the law which required the importer to demonstrate that a publication was not obscene was unconstitutional because it violated the guarantee of freedom of speech. And the Court held that Customs violated the Charter by the manner in which it applied the law, often taking more than a year to make a decision.
2001
R. v. Sharpe [2001] 1 S.C.R. 45 Jan 26, 2001
The issue was where to draw the line between freedom of expression, a Charter-protected right, and possession of child pornography. The Court said that the definition of the crime in the Criminal Code should be read to exclude (1) any written material or visual representation created by the accused alone, and held by the accused alone, exclusively for his or her own personal use; and (2) any visual recording, created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use.
Trinity Western University v. British Columbia College of Teachers [2001] 1 S.C.R. 772
Trinity Western is a private university associated with fundamentalist Christian beliefs. Its Standards of Conduct, which it required faculty, staff, and students to sign, included “sexual sins, including homosexuality” among the list of Biblically condemned conduct. When Trinity Western applied to the B.C. College of Teachers to assume complete responsibility for educating teachers, instead of having them spend the fifth year of their training at Simon Fraser University, the BCCT refused, concerned that the education prospective teachers received was homophobic. The Supreme Court of Canada overruled that decision, saying that there was no evidence that the Standards of Conduct did or would lead to homophobic conduct by teachers educated at Trinity Western after they graduated.
Walker Estate v. York Finch General Hospital [2001] 1 S.C.R. 647 April 19, 2001
The Canadian Red Cross Society was held to be negligent in failing to adequately screen out gay and bisexual men who might be HIV+.
Gill v Murray 2001 BCHRT 34
Two lesbian couples filed a complaint of discrimination on the basis of sex and sexual orientation against the Vital Statistics Registry because the Registry refused to put the names of their children's non-bio co-mother on the birth certificate. The evidence established that many children of straight parents had genetically unrelated fathers because they were conceived with assisted insemination; such fathers were registered on their child's birth certificate without any inquiry into whether the father was genetically connected. So the complainants were successful.
2002
Webb v. Waterloo (Region) Police Services Board [2002] S.C.C.A. No. 395 Sept 30, 2002
The issue before the Ontario Court of Appeal was whether a police ‘sting operation targeting gay men having public sex, and then publishing the names of the men they arrested, was contrary to the Charter of Rights. That court held it was not contrary to the Charter rights of gay men; it was a matter of an individual having sex in the park.The Supreme Court of Canada refused to hear an appeal of the case.
Chamberlain v. Surrey School District No. 36 [2002] 4 S.C.R. 710 Dec 30 2002
The Surrey School Board refused a request from James Chamberlain, a grade one teacher, to include books showing same-sex families in the library. The Boards decision was based on concerns that agreeing to do so would offend Christian parents. The Supreme Court of Canada held that the School Board discriminated on the basis of sexual orientation and was not entitled to rely on its perception of parents’ religious beliefs; and directed the Board to reconsider the issue properly.
2003
Barbeau et al v AG Canada and AGBC [2003] B.C.J. No.994 BC CA May 1, 2003
The BC Court of Appeal held that it was discriminatory, and counter to the equality guarantee in the Charter of Rights, to deny marriage to same sex couples.
Halpern v. Canada (Attorney general) 65 OR (3d) 161 June 2003
The Ontario Court of Appeal held that it was discriminatory, and counter to the equality guarantee in the Charter of Rights, to deny marriage to same sex couples.
Waters v. British Columbia (Ministry of Health Services)
[2003] B.C.H.R.T.D. No. 11
Waters filed a complaint saying it was discriminatory to fund surgical procedures not available in BC for MtF patients at the usual and customary rates, but not phalloplasties.
The tribunal found for Waters. It held that because his procedure had been begun, he was entitled to complete it. They awarded him the sum of $29,749.21 for physician services related to his previous phalloplasty-related surgeries as well as covering some of the costs of hospitalization during his recovery. They further ordered MSP to pay for future physician services to complete Mr. Waters’ phalloplasty and awarded him $1000 for legal expenses incurred prior to filing the complaint. In addition he was awarded $6500 for injury to dignity.
2004
Catholic Civil Rights League v. Hendricks 2004 CanLII 20538 (QC CA)
This case confirmed same sex marriage in Quebec. The Quebec Court of Appeal rejected the attempt by the Catholic Civil Rights League to appeal the decision of the lower court authorizing same sex marriage. The Catholic Civil Rights League had been an ‘intervenor’ but not a party in the case in the lower court.
Dunbar & Edge v. Yukon (Government of) & Canada(A.G.) 2004 YKSC 54 July 14, 2004
This case confirms same sex marriage in the Yukon.
N.W. v. Canada (Attorney General) 2004 SKQB 434 Nov 5 2004
Saskatchewan confirms the right to same sex marriage.
2004
North Vancouver School District No 44 v Jubran [2005] B.C.J. No. 733
Jubran was a straight high school student, but he was bullied because other students thought he was gay. The BC Human Rights Tribunal held that the school district failed in its duty to protect Jubran from bullying, but that decision was overturned by the lower court which held that since Jubran was not actually gay he was not protected by the Human Rights Code. The BC Court of Appeal said that the Human Rights Code protects you whether you are gay, or are perceived to be gay.
Reference re Same-Sex Marriage 2004 SCC 79 Dec 9 2004
The federal government asked the Supreme Court of Canada for its opinion about whether it was constitutional and consistent with the Charter of Rights to amend the Marriage Act to say:
1. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.
2. Nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs.
The Court said the proposed law was constitutional and consistent with the Charter.
Kempling v BC College of Teachers [2005] B.C.J. No. 1288 BCCA June 13 2005
Kempling, a teacher, published a letter in the local newspaper associating homosexuals with immorality, abnormality, promiscuity and perversion. The BCTF suspended his teacher’s licence for one month. He did not appear at the BCTF hearing, but later argued that his freedom of religion had been infringed. The BC Court of Appeal disagreed, saying that since he had not shown up for the suspension hearing hearing there was no evidence that his religious freedom was affected.
Vancouver Rape Relief Society, v Kimberly Nixon [2005] B.C.J. No. 2647 Dec 7, 2005
Nixon was a post-operative transsexual woman whose birth certificate showed her to be female. Rape Relief kicked her out of their volunteer training when they learned she was transsexual. The Court of Appeal held that, although Rape Relief had discriminated against Nixon, as a community group whose primary purpose was to serve a human rights-protected group, they were allowed to discriminate by the ‘group rights exemption’ under the Human Rights Code.
(This case and the ones which led up to it have been cited in more than 70 scholarly articles).
2006
Owens v. Saskatchewan (Human Rights Commission) April 13, 2006.
In Gay Pride Week, Owens published bumper stickers which showed two stick men, hands joined, with a ‘not permitted’ sign over it; and bible quotes. Though the Saskatchewan Human Rights Commission and, on appeal, the court below held that Owens had violated the hate speech provisions of the Human Rights Code, the Court of Appeal said that Owens was just expressing his opinion in the debate about sexuality which debate had been stirred by the proclamation of Gay Pride Week. Owens’ freedom of expression of his views was protected.
2007
Alliance for Marriage and Family v. A.A .[2007] S.C.J. No. 40
The Alliance for Marriage and the Family is a homophobic group which wanted to intervene and appeal a decision of the Ontario Court of Appeal that which held two lesbian partners could both be considered the mother of a child born to one of them. The Court refused to permit them to appeal when they had not been a part of the case in the first place.
Little Sisters Book and Art Emporium v.Canada (Commissioner of Customs and Revenue)[2007] S.C.J.No. 2
The Supreme Court of Canada agreed with the BC Court of Appeal, which had overturned a decision that had advanced costs to Little Sisters to enable them to challenge the way that Customs operated. Customs had continued to detain their books even after being successfully challenged by Little Sisters in an earlier case, and so Little Sisters had sought advance costs to fund their case, and a comprehensive review of Customs operations.
2008
WIC Radio Ltd. v. Simpson [2008] S.C.J. No. 41
Rafe Mair was a well-known B.C. radio talk show host whose shows focused on controversial current affairs. He read a column criticizing Kari Simpson, who had a public reputation as a leader of those opposed to schools teaching acceptance of a gay lifestyle. Simpson had helped to write a so-called “Declaration of Family Rights’, a document designed to enable parents to assert that their children should be exempted from participation in school sessions which would expose their children to any teaching which “portrays the lifestyle of gays ... as one which is normal, acceptable or must be tolerated”. Simpson had also been involved on the anti-gay side of the question of whether the Surrey School Board should permit three books for first-graders which talked about gay families, and had been involved in a recall campaign against Paul Ramsey, a Prince George MLA, because of his position on gay issues.
In his editorial, Mair had compared Simpson to Hitler, Wallace, Faubus or Barnett. Though he specifically said the following: “Now I’m not suggesting that Kari was proposing or supporting any kind of holocaust or violence, but neither, really in the speeches when you think about it and look back were Hitler or Wallace or Orval Faubus, or Ross Barnett, they were simply declaring their hostility to a minority, let the mob do as they wished,” The trial judge found that Mair had defamed (harmed the reputation of) Simpson.
However, the judge went on to hold that Mair was entitled to rely on the defence of ‘fair comment’. Fair comment means that you can express an opinion, based on facts that are true, on an issue of public interest, even if your opinion is defamatory – in other words even if your opinion harms someone’s reputation. So Mair had harmed Simpson’s reputation, but he had a right to do so.
So Simpson lost.
The BC Court of Appeal disagreed with the trial judge, and said Simpson should win.
The case was appealed to the Supreme Court of Canada. The court listed some of the explicitly anti-gay statements that Simpson had made, including for example that homosexuality is not normal, and that “tolerance” is driven by political correctness. And the court went on to hold that in a free and democratic society, journalists should be free to express their opinions on matters of public debate. The Supreme Court of Canada was concerned to make sure that journalists did not refrain from covering controversial issues for fear of being sued.
So, in the end, Kari Simpson lost.
Chiang v. Vancouver Board of Education [2009] B.C.H.R.T.D. No. 319
This decision is about allegations of discrimination based on religion in relation to anti-homophobia initiatives created at University Hill School. Po Yu Emmy Chiang, a teacher and the school librarian, alleged that the respondents stereotyped, harassed and mistreated her in their actions based on stereotypes they had about Christians. Chiang was a sponsor teacher of the Christian Fellowship Club.
After the teacher sponsor of the school Pride Club, a Gay/Straight Alliance, distributed rainbow stickers and distributed an email with a link to homophobic activity by a small Baptist congregation, Chiang requested permission to speak to the GSA about Christianity or that they have a Youth Pastor attend. Her requests were refused. Chiang also failed to process LGBT books donated to the library despite a direction from the principal, and subsequent disciplinary action with respect to her refusal.
The tribunal found that Chiang had never complained of a violation of her religious freedom, but rather was concerned about how others might perceive those beliefs. Therefore, the tribunal ruled, there was no basis to her complaint, which was dismissed.
2010
Whatcott v Saskatchewan Human Rights Tribunal 2010 SKCA 26( Sask. Court of Appeal) Feb 25, 2010
Whatcott distributed flyers which described gays and lesbians in derogatory terms, advocated the re-criminalization of sodomy, and argued that children in the education system were at risk. Though the Saskatchewan Human Rights Tribunal found him guilty of promoting hatred, the Saskatchewan Court of Appeal said that they had made an error for two reasons: they should not have considered the subjective impact on people, and they should have taken into account that the comments were part of a debate about school boards.
L.M. v. E.A. 2010 QCCS 4390; [2011] S.C.C.A. No. 429
The applicant and the respondent were married in Mexico in 2004, had a daughter in 2005 and separated in 2006. In March 2007, the mother was awarded custody of the child. At the end of the same year, the father filed a complaint against the mother for corruption of a minor, alleging that the child was exposed to the mother's homosexuality. He sought and obtained custody of the child on that ground in September 2008, eight days after the mother and child arrived in Quebec. In March 2009, the mother instituted proceedings in Quebec seeking custody of the child. In April 2009, after an acquittal was appealed by the prosecution, a Mexican court found the mother guilty of corruption of a minor, a crime punishable by two to ten years of imprisonment. An arrest warrant was issued. In Montréal, the mother obtained temporary custody of the child; however, the father filed a motion seeking the child's return. Between the Superior Court's judgment on that motion and the judgment of the Court of Appeal, a Mexican decision was rendered quashing the mother's conviction through a constitutional review (Amparo).
The Court of Appeal upheld the mothers’ right to custody of the child; and the Supreme Court of Canada refused to hear an appeal from that decision.
2011
IN THE MATTER OF Marriage Commissioners Appointed Under The Marriage Act [2011] S.J. No. 3
The legislature asked the Saskatchewan Court of Appeal to say whether changes to the Marriage Act to permit a marriage commissioner to refuse to solemnize a same sex marriage if same sex marriage was against their religion. The Court said that the amendment would violate the equality rights of gay and lesbian people under the Charter of Rights; and such a violation could not be justified as a reasonable limit. Religious freedom is not absolute and in this case had to yield to the equality rights of gay and lesbian people.
2013
Brodeur v. Ontario (Minister of Health and Long-Term Care) 2013 HRTO 1229 (Ontario Human Rights Tribunal)
The applicants were male to female transsexuals who had had transsexual surgery. They sought medicare funding for electrolysis, voice therapy, and breast augmentation; and argued that the denial of those services constituted discrimination on the basis of sex.
The tribunal held that the ground of ‘sex’ covered the complaint Though ‘gender identity’ was added to the Human Rights Code after this complaint was filed, that did not mean the complaint could not go forward on the ground of sex.
However the complainants lost, because they could not point to a similar service that was available to other people but denied to them because they were trans. No one was covered to have voice therapy or electrolysis; and the same rules about breast augmentation for non-trans people applied to trans people. (That rule is that if you do not have breast tissue, a condition called aplasia, you can get breast augmentation. If you do have breast tissue – including as a result of taking hormones – you will not get breast augmentation). In relation to the claim for voice therapy, the claimants’ evidence did not establish that voice therapy was medically necessary, the standard in the OHIP coverage.
This case is a must-read for anyone wanting to challenge funding for trans-related care.
Saskatchewan (Human Rights Commission) v. Whatcott 2013 SCJ 11
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.
Cases that link to The Supreme Court Decisions and the Canlii websites reflect the current status of the case.
All others are current to the time of research, March 2014.
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Copyright barbara findlay 2012 ff ©
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