The B.C. Human Rights Tribunal today released its decision in the case of two lesbians whose rental contract for a Knights of Columbus Hall was cancelled after the Knights learned that the wedding reception they were planning was their own. The tribunal held that the Knights had the right to refuse to rent the hall, but that they had failed to ’accommodate the complainants to the point of undue hardship’ and so awarded $1000 to each of Tracey Smith and Deborah Chymyshyn for the injury to their dignity.
Said barbara findlay, lawyer for the two, “This decision means your religion lets you discriminate, but you have to be polite”. findlay said the decision was a disappointing once which goes much further than it should in permitting people to rely on freedom of religion as a basis for discrimination.
Tracey Smith and Deborah Chymyshyn had scoured Coquitlam for a an appropriate venue for their wedding reception which was to follow their open-air wedding. Chymyshyn testified at last January’s human rights hearing that she finally resorted to driving up and down the road, and found the hall when she followed a sign saying ’bingo’.
Weeks after they had signed a contract, paid a deposit for the hall, and sent out their wedding invitations, the two got a phone call saying that the contract had been cancelled. Though Smith and Chymyshyn had made no secret of the fact that the hall was being rented for their wedding reception, it didn’t occur to the person showing the hall that could mean that the two were marrying each other.
Smith and Chymyshyn argued that the hall was a ’service or facility customarily available to the public’, since the Knights of Columbus rented it to anyone in the community. Therefore canceling their contract was discrimination on the basis of sexual orientation in denying a … ’facility customarily available to the public.’
The Knights of Columbus disagreed, pointing to their charter as an international, fraternal (all male) Roman Catholic service organization, that they were located next door to a Roman Catholic church, and that their local organization recognized the authority of the priest of that parish. They argued that since the Roman Catholic Church considers it to be a mortal sin to practice homosexuality, they had a good reason – their freedom of religion – for refusing the hall to Smith and Chymyshyn.
The tribunal referred to the direction of the Supreme Court of Canada that the line between freedom of religion and the right to be free from discrimination on the basis of sexual orientation was to be drawn between thought and action ; and noted that no one can be compelled to do something against their religious beliefs
.Noting that this case presented a difficult situation where drawing the line between freedom of religion and the right to be free from discrimination on the basis of sexual orientation required a ’delicate balance’, the tribunal held that the Knights could have refused the hall rental based on their religious beliefs, but they failed in their duty to accommodate the complainants to the point of undue hardship. The tribunal awarded $1000 to each of the complainants for injury to their dignity.
Reacting to the judgement, Chymyshyn said “I honestly didn’t know what to expect from the tribunal after the hearing. But I knew that even if they decided against us, we were right to make the complaint. We certainly didn’t go looking for this problem – we would never have booked the hall if we had known who the Knights of Columbus are, because we wouldn’t want any hassle on our special day. But part of getting married was about celebrating the dignity of our love for each other. If we had not stood up to be counted, we would not have had much dignity left. I am proud of what we did, and will continue to do as long as necessary.”
barbara findlay QC, said that she and her clients will be taking judicial review (a kind of appeal) of the decision. They will argue that the human rights tribunal was mistaken in their understanding of freedom of religion, and that the Knights of Columbus ought not to have been permitted to refuse use of the hall. But if that argument fails, says findlay, the two will argue that no one should be able to rely on freedom of religion as a defence unless they have notified the public in advance that they intend to discriminate against some people. “It is not good enough for people to be polite while they deny me a service,” said findlay. “The Knights should be required to post a sign or include language in their contract specifying that they serve only people who agree with them.”
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The B.C. Human Rights Tribunal today released its decision in the case of two lesbians whose rental contract for a Knights of Columbus Hall was cancelled after the Knights learned that the wedding reception they were planning was their own.
Tracey Smith and Deborah Chymyshyn had scoured Coquitlam for a an appropriate venue for their wedding reception which was to follow their open-air wedding. Chymyshyn testified at last January’s human rights hearing that she finally resorted to driving up and down the road, and found the hall when she followed a sign saying ’bingo’.
Weeks after they had signed a contract , paid a deposit for the hall, and sent out their wedding invitations, the two got a phone call saying that the contract had been cancelled. Though Smith and Chymyshyn had made no secret of the fact that the hall was being rented for their wedding reception, it didn’t occur to the person showing the hall that could mean that the two were marrying each other.
Smith and Chymyshyn argued that the hall was a ’service or facility customarily available to the public’, since the Knights of Columbus rented it to anyone in the community. Therefore canceling their contract was discrimination on the basis of sexual orientation in denying a … ’facility customarily available to the public.’
The Knights of Columbus disagreed, pointing to their charter as an international, fraternal (all male) Roman Catholic service organization, that they were located next door to a Roman Catholic church, and that their local organization recognized the authority of the priest of that parish. They argued that since the Roman Catholic Church considers it to be a mortal sin to practice homosexuality, they had a good reason – their freedom of religion – for refusing the hall to Smith and Chymyshyn.
The tribunal referred to the direction of the Supreme Court of Canada that the line between freedom of religion and the right to be free from discrimination on the basis of sexual orientation was to be drawn between thought and action ; and noted that no one can be compelled to do something against their religious beliefs.
Noting that this case presented a difficult situation where drawing the line between freedom of religion and the right to be free from discirmination on the basis of sexual orientation required a 'delicate balance', the tribunal held that the Knights could have refused the hall rental based on their religious beliefs, but they failed in their duty to accommodate the complainants to the point of undue hardship. The tribunal awarded $1000 to each of the complainants for injury to their dignity.
Reacting to the judgement, Chymyshyn said “I honestly didn’t know what to expect from the tribunal after the hearing. But I knew that even if they decided against us, we were right to make the complaint. We certainly didn’t go looking for this problem – we would never have booked the hall if we had known who the Knights of Columbus are, because we wouldn’t want any hassle on our special day. But part of getting married was about celebrating the dignity of our love for each other. If we had not stood up to be counted, we would not have had much dignity left. I am proud of what we did, and will continue to do as long as necessary.”
To read the decision, click here (pdf)
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The B.C. Supreme Court decided yesterday that having sex with someone you are not married to is adultery.
No surprises there, you might think. But till yesterday, the definition of adultery did not include queer sex. The definition of adultery was penetrative sex between a woman and a man, not married to each other, one of whom was married to someone else.
That concept of adultery was developed in the ecclesiastical (church) courts which originally had jurisdiction over adultery. At the time, a married woman had no separate legal personality from her husband, and could not even own property separately. Though a husband could divorce his wife for adultery, a wife could not divorce her husband on the same ground. The concern underlying the ‘matrimonial offence’ of adultery was that someone might taint —adulterate— the line so that a man’s child might be the child of someone else.
Times, fortunately, have changed.
We argued yesterday on behalf of Ms P, whose husband had an affair with another man, that now that same sex marriages are legal, and same sex divorces are legal, the same remedies ought to be available to everyone whose spouse has an affair, regardless of whether the spouse has a heterosexual or a same sex affairs.
Ms P had filed for a do–it–yourself desk order divorce. Her husband had admitted he committed adultery in a sworn statement filed with the court. But her application for a divorce was held up. The judge explained to Ms P that she would need to get a lawyer to make argument about why the old fashioned definition of adultery should be changed.
We had to bring a “Notice of Constitutional Question” to challenge the law, and advise the federal and every provincial government we were doing so. The only government to respond was the federal government. They agreed that the court had authority to make the necessary ‘incremental change’ to the law to extend adultery to opposite sex partners.
Her Ladyship Judge Garson ruled that she did have the necessary authority, and granted a divorce to Ms P. She advised that she would issue written reasons for her decision in a couple of weeks. The judge also made an order, requested by the Attorney General for Canada, that news media not refer to Ms P by her full name, even though her name was in a Globe and Mail story published that morning.
The case will be a precedent for ‘straight spouses’ whose partners have a queer relationship, and for lesbian and gay spouses whose partners step out with someone else.
Once the judge’s reasons are published, they will be available on this website.
In this issue:
Does anyone not know that queer marriage was legislated into history by the federal government?to top
June 28 2005 was the day that the legislation to enact an inclusive definition of marriage.
The story was a long time in the making. In 1991, a gay couple in Ontario filed a Charter challenge against the discriminatory definition of marriage. They lost. Their lawyer filed a notice of appeal, and it looked as if the issue was headed for the Supreme Court of Canada.
For those of you too young to remember, in 1991 there was no protection for sexual orientation either federally or in British Columbia. No court had yet decided that ‘sexual orientation’ was protected by the Charter of Rights along with grounds like race, sex, ancestry, mental and physical disability, and religious belief. It was very, very early days in the struggles for lesbian, gay and bisexual equality.
A group of queer lawyers gathered in Ottawa to consider the situation. Should the marriage appeal go ahead? Consensus was that we were, collectively, unwise to start our equality claims by asserting a right to the hoary institution of marriage. Rather, we should begin our legal battles over spousal benefits that were offered to common law heterosexual couples. There we could argue against the discriminatory treatment of common law same sex couples compared with common law opposite sex couples.
And so it was. The marriage appeal was abandoned, and the struggle for spousal rights began.to top
The trade union movement was critical in the queer legal battles. The HEU in BC won the first spousal benefits case in the country in 1992, the same year that BC got human rights protection for gays lesbians and bisexual people. CUPE followed in 1996 with a landmark case about RRSP spousal benefits.
The first decision of the Supreme Court of Canada came out of B.C. also. It was a heartbreaker. Two Vancouver Island gay men challenged the failure of the Old Age Security Act to include same sex partners for spousal benefits. The court split: 4/4/1. Four judges held that the Charter did not protect gays and lesbians (yes! only one vote short of decades of defeat). Four judges held that the Charter operated to invalidate the discriminatory legislation (yes! only one vote short of certain victory for LGB claims). The last judge waffled. While the Charter protects gays and lesbians, he said, the government cannot be made to extend financial benefits such as pensions to a disadvantaged group.
So we lost the battle but won the war: governments are not allowed to discriminate against lesbians, gay men and bisexual people – or against same sex couples.to top
The NDP government in B.C. was the first in the country to legislate adoption rights for same sex parents. In other provinces, that right was won through litigation. Ontario's NDP government promised to amend all of their discriminatory legislation – but waited so late in their mandate that they suffered a humiliating defeat over the issue. Learning from Ontario, B.C.‘s NDP government passed an omnibus law amending all discriminatory legislation early in its mandate.to top
In 2001 the feds were forced to pass remedial legislation, quaintly called the ‘Modernization of Benefits Act’, which eliminated all discrimination against common law same sex partners. They were forced, because CLGRO, a queer organization in Ontario, had brought an omnibus challenge to the 53 pieces of discriminatory federal legislation, and if the feds had not enacted that law, they would have been embarrassed by having all of the 53 pieces ruled discriminatory.
Ironically that law contained a comfort clause for the conservatives, reaffirming the traditional definition of marriage.to top
In no time, the marriage cases began. I was counsel on the first case, brought in B.C. in 2001. Shortly after our case, Ontario and Quebec took challenges to court. Though we lost at the trial level in British Columbia, the case succeeded on appeal. In short order there were decisions from the appeal courts of B.C., Ontario, and Quebec holding that it was unconstitutional for gays and lesbians to be excluded from the right to marry.to top
By the time the federal government introduced its marriage legislation in 2005, (after asking the Supreme Court of Canada whether it would be consistent with the Charter to extend marriage rights to same sex people) more than 95% of Canadians lived in jurisdictions where courts had held that gays and lesbians were entitled to marry.
Once again our rights were decided by one vote: this time, the vote of Belinda Stronach, who crossed the floor to sit with the Liberals and support same sex marriage. Without her vote, and the vote of Chuck Cadman, an independent who voted for same sex marriage though he personally did not support it because his constituents favoured same sex marriage, the law would not have passed.to top
Could Stephen Harper roll back marriage rights? Harper has claimed that he has the authority to roll back same sex marriage rights, and to substitute a regime similar to marriage but lacking that title. (Such regimes are called registered domestic partnerships – RDP – or sometimes civil marriage). Almost 100 learned law professors published an opinion in the Globe and Mail telling the country that Harper could not do what he proposes, because the federal government does not have jurisdiction over RDPs, the provinces do.
It is theoretically possible for Harper to enact legislation using the ‘notwithstanding’ clause of the Charter to un-marry same sex spouses and prohibit future same sex marriages. To do so, though, he would have to specify in the legislation that the law was being enacted 'notwithstanding that it is discriminatory and violates the Charter‘ and the legislation would die automatically after five years.to top
The right complained throughout the same sex marriage debates that religious freedom would be affected by same sex marriage. They raised the specter of Christian and other clergy being forced to marry gay men or lesbians against the tenets of their faith. So Bill C-38 includes a section guaranteeing religious freedom.
The fight is now centering on the near-religious. In Regina, five out of six marriage commissioners claim religious convictions on the basis of which they refuse to perform same sex marriages. In Alberta, Ralph Klein gave in to the federal marriage legislation but vowed to use the notwithstanding clause to protect the religious sensibilities of marriage commissioners who might not want to perform same sex marriages. The queer community is of the view that marriage commissioners are civil servants. They ought not to be allowed to claim an exemption from performing same sex marriages.to top
Two lesbians were looking for a hall to have a reception after their outdoor wedding. They found the perfect space by following a sign for bingo. But after they had rented the hall and sent out the invitations, they got a call canceling their contract because the Knights of Columbus, owners of the hall, had learned that the purpose of the evening was a same sex wedding reception.
Not a wedding.
Not a church.
A wedding reception.
A church hall available to rent to anyone in the community.
They filed a human rights complaint alleging discrimination in the provision of public facilities. I was their lawyer. The case has been heard by the B.C Human Rights Tribunal (last January) but has not yet been decided.to top
Transgender people – both transsexuals, who are ‘born in the wrong body’ and other people who identify as neither, or both, male and/or female, continue to suffer horrendous discrimination.
Although literally all of the cases brought by trans people have been decided in their favour by human rights tribunals, violence, unemployment, poverty and discrimination remain the lot of the majority of trans folk. In a decision last week, the B.C. Supreme Court held that, even though the accused had murdered the transsexual woman when he learned she was transsexual, the crime was not a hate crime.
And Kimberly Nixon continues her heroic fight against discrimination in women‘s services. Rape Relief is one of the few women‘s shelters in B.C. which has an anti-trans women‘s policy. In 1995 they expelled Nixon, a trained peer counsellor, from their volunteer training when they learned she was a transsexual woman.
So far, Nixon has endured a court case to determine whether she was, really, a woman, and whether trans people have human rights at all; a four week human rights tribunal hearing which awarded her the highest amount of damages in the province's history; a one week judicial review in which the judge reversed the human rights tribunal on the basis that ‘any reasonable transsexual’ would know that she would not be welcome at Rape Relief; and finally a three day hearing in the Court of Appeal. The Court of Appeal decision is expected in the fall. It will be the first decision of an appeal court in the country about the rights of transgendered people.to top
Since 2002 Canada‘s immigration laws have explicitly permitted Canadians to sponsor their same sex partner, and permit a non–Canadian who is immigrating to Canada to bring her/his same sex partner as a spouse (whether or not they are married).
That law, combined with the regressive legislation in many American states outlawing the right to marry in that country, has resulted in a flood of queers wanting to move to Canada.
And Canada permits queers who are persecuted in their home country for their sexual orientation to claim refugee protection.
We can be proud that our country welcomes our queer brothers and sisters.to top
It is a fine summer to be queer in Canada. Enjoy Gay Pride, wherever you are and whenever it is held, knowing (as Vancouver‘s gay pride theme said), there‘s ‘no turning back’.to top
Deborah Chymyshyn and Tracey Smith found just the hall they wanted to rent for their wedding reception. It was located behind a church in the Vancouver suburb of Port Coquitlam and managed by the Knights of Columbus, an organization they thought was the same as the Elks.
That mistake -- confusing the Elks with the Knights -- has taken them into the epicentre of the national debate on same-sex marriage, with Stephen Harper and the federal Conservatives citing the couple as Exhibit A in the Tories´ declaration that government legislation unveiled yesterday permitting homosexuals to marry will result in severe assaults on Canadians’ freedom of religion.
Prime Minister Paul Martin defended the bill, insisting that no religious organization will be forced to perform homosexual marriages if their teaching is opposed to them. But he also said that “Canada is a country where minorities are protected” -- a claim the Tories sought to turn against him by saying the debate on same-sex marriage will be all about protecting Canadians’ religious freedoms.
The B.C. Human Rights Tribunal has just finished hearing Ms. Chymyshyn and Ms. Smith’s claim that the Knights, a Roman Catholic men’s fraternal and philanthropic society, discriminated against the couple by refusing to rent the hall to them after learning it was for a same-sex wedding reception.
The Knights, adhering to church teaching, which is against homosexual marriage, cancelled a rental contract that had been signed, returned the couple’s deposit and paid for both the rental of a new hall and the reprinting of wedding invitations after Ms. Chymyshyn and Ms. Smith complained that invitations listing the hall’s address for their reception had been mailed.
That was in September, 2003. In October, the couple complained to the Human Rights Tribunal, which heard the case last week. A decision is not expected for months.
Their case points to what many legal scholars and religious leaders say is a murky area between protection of freedom of religion and protection against discrimination. They say it could lead to religious organizations and individuals by the phalanx heading to courts and rights tribunals once the same-sex marriage legislation becomes law.
“It’s going to be endless,” said University of Toronto law professor Brenda Cossman, a specialist in freedom of expression and legal regulation of adult relationships.
The B.C. Knights of Columbus case focuses on whether a church-related organization is the same as a church and whether freedom of religion extends beyond refusing to perform a same-sex marriage to refusing to celebrate one.
Provincial governments, which license civil commissioners to perform marriages, are wrestling with allowing them to follow their conscience and religious belief when it comes to same-sex marriages or, as Manitoba has done, ordering them to surrender their licences and find another line of work.
Yesterday, the Tories produced a list of seven cases to illustrate the freedom of religion and anti-discrimination protections. All the cases had previously received considerable publicity -- such as the gay student in a Catholic high school in Oshawa, Ont., who secured a Superior Court injunction against the school board’s order that he not bring a male date to the school prom -- and none touched directly on same-sex marriage.
In contrast, the case of the Knights and Ms. Chymyshyn and Ms. Smith is destined to become a textbook model.
The hall has a sign outside saying simply that it was for rent and listing a telephone number.
B.C.’s Human Rights Code says “a person must not, without a bona fide and reasonable justification, discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public.”
Both sides agreed that freedom of religion could be a “bona fide and reasonable justification to discriminate” but lawyer barbara findlay, representing Ms. Chymyshyn and Ms. Smith, says it wasn’t operable in this case.
Ms. findlay, who does not use capital letters in the spelling of her name, said the religious freedom of the Roman Catholic Church to refuse to marry same-sex couples could not be equated to religious freedom for a lay organization of Catholics to refuse to rent premises for the celebration of a same-sex marriage -- not if the premises were generally offered to the public.
She also likened the Knights’ refusal to rent their hall to Ms. Chymyshyn and Ms. Smith as being comparable to a hypothetical case in which, if the Knights ran a daycare, they refused to accept the children of a lesbian couple.
Knights’ lawyer George Macintosh said the Catholic Church owns the hall, and membership in the Knights is limited to practising Catholics.
“If it’s lawful to say no to [performing] a same-sex marriage, it’s lawful to say no to celebrating the event. To celebrate an event against your religious belief is the same as conducting the event yourself.”
Mr. Macintosh said the sign in front of the Knights’ hall did not have to state that it would not be rented to people who acted against Catholic teachings because that was covered by the “bona fide and reasonable justification to discriminate” provision of the Human Rights Code.
Ms. findlay said the sign has since been taken down and the Knights now rent the hall only to members of the adjacent Catholic church.
Legislation to make same sex marriage legal across the country was introduced into the House of Commons today. The legislation, which is expected to pass, has wording identical to the wording on which the federal government requested the opinion of the Supreme Court of Canada last fall. In a ‘Reference’ (a formal request by a government to express an opinion - but not make a ruling - about the constitutionality of a proposed law) the federal government asked the Court if it would be consistent with Canada’s Charter of Rights and Freedoms to extend marriage to same sex couples. The Court said yes.
Whether or not the Bill becomes law is not crucial, however. Gays and lesbians have now obtained rulings in 7 of 11 provincial and territorial jurisdictions that same sex marriage are permitted. So if the Bill were to fail, queers in the remaining four provinces would go to court and obtain the same rulings.
The odd situation in Canadian law arises because the federal government chose not to appeal decisions of the Court of Appeal of 3 provinces, BC, Ontario, and Quebec, which held that it contradicts the equality guarantees in the Charter to limit marriage to opposite sex couples. The Supreme Court of Canada agreed, in the Same Sex Reference.
The result is that the only way to outlaw same sex marriage in the country would be for the federal government to invoke the ‘notwithstanding clause’ of the Charter. That clause says that a government may pass legislation which violates equality rights - but only if the legislation explicitly states that it operates “notwithstanding” its violation of the Charter. And laws enacted using the notwithstanding clause have to be re-enacted every five years. Governments do not like to be seen to be riding roughshod over equality rights and so the notwithstanding clause is rarely used. Even Stephen Harper, leader of the Conservative Party, says he will not use the notwithstanding clause.
barbara findlay, QC is one of two Canadians being honoured with an Award of Merit by the Sexual Diversity Studies Department at the University of Toronto. The first-ever awards by the SDS Department award findlay’s advocacy on behalf of queer minorities in Canada.
Trans people are used to finding bizarre features of the world. One of the more ridiculous requirements is that if you were born in Quebec, and later have sex reassignment surgery, you can’t get a new birth certificate with your proper name and gender on it unless you return to Quebec to live for a year!
A client of mine in that situation despaired of ever having the proper documentation, because she had a twenty year career hear and could not return to Quebec.
Gettting her birth certificate was a matter of, first, writing to B.C. Vital Statistics and having them give me a letter saying ‘if this person was born in B.C. and presented this documentation, we would issue a birth certificate with the changed gender’.
Then I wrote to Quebec Vital Statistics,and said, ‘If I get an order in the terms attached, will you issue a changed birth certificate?’ ‘Yes’, they replied.
So I went to court and got a Declaration that, were my client in B.C., and had she presented the attached material, she would be entitled to a change of gender. (Actually, I went to court twice. The first time the chambers judge was someone I knew to be intensely transphobic).
I sent the Declaration to Quebec. They sent back a birth certificate with the precious ‘F’ on it. I couriered it to my client, making sure she would be home.
She called me immediately: But barbara, she said, it is true that it says ‘F’. But my name, my parents’ names, my place and date of birth are all wrong!!’
I sent a scathing letter to Quebec and, finally, after more than 20 years with identification in the wrong gender, my client’s birth certificate is finally correct.
It is only the extraordinary events of this week which result in two QueerLaw posts.
In a long-awaited decision released yesterday, the Supreme Court of Canada gave its opinion to the federal government about the constitutionality of same sex marriage and the extent of protection under freedom of religion.
In order to stick handle the same sex marriage issue past the last federal election (a wise move, considering what happened in the U.S.) Martin made a ‘reference’ to the Supreme Court of Canada. Unlike an ordinary appeal, a reference is a request for the court’s opinion on a constitutional question.
Martin asked whether same sex marriage was consistent with the equality guarantees in the Charter of Rights. Answer: yes
Martin asked whether the freedom of religion protected by the Charter would operate to permit clergy to refuse to perform same sex marriages. Answer: yes.
The court came to its decisions unanimously.
Martin has already announced that he is intending to have federal legislation in place, extending marriage to all ten provinces and three territories, by the end of 2005. Currently restrictions on same sex marriage have been struck down by the courts in seven jurisdictions. The bill is almost certain to pass with the support of the NDP and the Bloc, even though some Liberal backbenchers are opposed. Martin is imposing party discipline only to the extent of requiring his cabinet ministers to vote for the bill. Backbenchers have a conscience vote.
Press reaction to the Supreme Court decision has been almost uniformly favorable.
The most obdurate province is Alberta, which has already passed legislation prohibiting same sex marriage. The provinces have jurisdiction over ‘solemnization of marriage’ while the feds have jurisdiction over ‘capacity to marry’ (ie who can marry whom). Alberta’s legislation will probably be thrown on the ground that it is a back door attempt to rule on capacity to marry, something only Parliament can do.
To all of the litigants in every province where a same sex marriage has been fought, and who have endured the media spotlight and the disruption of their lives that the decision represents, thank you. You are heroes.
B.C. Supreme Court acquitted one and convicted the other of two men on trial in adult court for beating Aaron Webster to death in November 2001. Danny Rao, 23 and Ryan Cran, 22, were on trial for manslaughter. Rao was acquitted because the Court held that the Crown had not proved its case against him beyond a reasonable doubt. Though he was clearly present when the beating happened, the Court could not say for sure that he had participated in the beating. And being a bystander to a crime and doing nothing is not a criminal offence. Cran was convicted of manslaughter, but was released on bail pending sentencing on January 25, 2005.
The queer community is unhappy with the trial process since the Crown has not treated the killing as a gay bashing. Webster was killed when the accused and two youth saw him naked in Stanley Park. They pursued him, and though Webster ran to get into his car, he was beaten to death beside it.
It has been a while since the last QueerLaw update, and there is lots to report.
Supreme Court of Canada marriage decision coming December 9, 2004
The decision in the ‘marriage reference’ before the Supreme Court of Canada will be released on December 9, 2004.
The federal government had asked the Supreme Court of Canada
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whether it would be consistent with the Canadian Charter of Rights and Freedoms to enact legislation making same sex marriage legal across the country
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whether the freedom of religion guaranteed by paragraph 2(a) of the Canadian Charter of Rights and Freedoms protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs?
The federal government has not opposed applications from gays and lesbians to marry in cases decided in the last few months. A Saskatchewan judge awarded costs against both the federal and the Saskatchewan government in the same sex marriage case there.
A private member’s bill in Parliament to limit marriage to a man and a woman was derailed last month when 700,000 Canadians sent emails in protest.
Because lesbians and gay men have brought legal challenges in each jurisdiction, it is currently legal to marry in British Columbia, Saskatchewan, Manitoba, Ontario, Quebec, Nova Scotia, and the Yukon.
The federal government told the Supreme Court of Canada that it is planning to introduce legislation giving same sex couples the right to marry. But that is not the end of the matter Jurisdiction over marriage is divided between the federal and provincial governments under the Constitution. Provinces have the right to govern ‘solemnization of marriage’. Alberta has already enacted legislation prohibiting same sex ceremonies. Such restrictions are likely to fail a legal challenge, however, because the legislation intrudes into the federal sphere of ‘capacity to marry’.
‘Family values’ was an explicit theme of the recent American presidential elections. And in a move deliberately timed to bring out conservative voters, eleven states held referenda to amend their constitutions to prohibit same sex marriage at the same time as the presidential election.
Said one queer activist, ‘It is the first time since Nazi Germany that a western government has legislated away the civil rights of a group of its citizens.’
Our office has had a tsunami of email inquiries from lesbians and gay men wanting to immigrate to Canada to escape the homophobic climate in the U.S.
Canadian immigration law permits a person who qualifies to come to Canada (as a skilled worker, investor, entrepreneur or self-employed person) to bring their common law or conjugal spouse with them. A ‘common law spouse’ is someone with whom one has cohabited for at least one year; a ‘conjugal spouse’ is someone you have been in a relationship with, but have been unable to cohabit - eg because neither your country nor your partner’s country permits same sex immigration.
There are still discriminatory features of Canadian immigration laws, because the law does not recognize a same sex marriage unless one of the participants is Canadian or the marriage is valid in the applicant’s country of origin. The same restrictions do not apply to heterosexual marriages.
It was a given. Everyone pretty much expected that the intense sweep of love and hope that flooded the City last spring would almost immediately suffer the slings and arrows of outrageous legislation and gnarled conservative sexual dread, and, truth be told, everyone was actually rather stunned that the nuptials lasted as long as they did and that they caused such an enormous national uproar and that the country responded with a dazzling outpouring of deep feeling and flowers and it’s about goddamn time.
But lo, the state Supreme Court did what it was hired to do: Wield the sharp sword of bitter, outdated, biased justice, declare Mayor Gavin Newsom’s still-astounding initiative out of legal bounds and pronounce all those beautiful marriages, all that astounding love, all that wondrous feeling null and void.
At the General Synod [national meeting] of the Anglican Church the issue of blessing same sex marriages was a contentious one. Two years ago, the synod of the Vancouver-based diocese of New Westminster voted to allow such ceremonies, a move which caused the ‘secession’ of some parishes from the diocese and a major international controversy, with Anglican primates from African furiously opposed to the development.
The General Synod voted on a motion to make the blessing of same sex unions a ‘local matter’. That would have preserved the current regime where some bishops permit same sex blessings and others do not. But the vote failed, and the issue was remitted for three years for further study, including a study of the question of whether same sex marriage is a ‘doctrinal’ issue requiring a 2/3 vote or a matter requiring only a simple majority.
In British Columbia, a female to male transsexual won a human rights case to require the provincial medical plan to pay for bottom surgery. Because bottom surgery for FtMs is more complex than bottom surgery for MtFs, the government has maintained a policy of refusing medicare coverage for FtM surgery.The tribunal held the policy to be discriminatory on the basis of sex. The B.C. government is appealing.
Meanwhile, in Ontario the provincial government has ‘de-listed’ sex reassignment surgery completely meaning that it is available to no one. A legal challenge is pending.
The Ontario Court of Appeal decided that so-called ‘widow’s pensions’ under the Canada Pension Plan are available to any gay or lesbian whose partner died after 1985.
There was an earlier decision which held that queers were entitled to CPP spousal benefits, but the decision applied only to spouses whose partners died before 1998.
An aboriginal couple in B.C. is the first to apply for a ‘customary adoption’ of the child they have been raising, and for recognition as a family for the purposes of the band’s housing list
In a class action which the federal government says will cost up to $40 million, the Ontario trial court ruled last week that gays and lesbians whose partners died between 1985 and 1998 are entitled to survivor’s benefits.
In 1998, the rule limiting survivor pensions to heterosexual surviving partners was eliminated as part of federal legislation enacted as a term of settlement of a suit brought by CLGRO (Coalition of Lesbians and Gays of Ontario) against more than 50 discriminatory federal laws. But at the time, the government limited the survivor pensions to queers whose partners died after 1998.
Last week’s ruling held that the benefits should have been retroactive to 1985, the year that the equality rights section of the Canadian Charter of Rights and Freedoms came into effect.
The federal government is expected to appeal, because the prospect of retroactively-effective equality challenges has potentially monumental impacts in many areas of the law.
Anyone who might be affected by the results in this case should contact J.J. Camp, Q.C., the lawyer who appeared on behalf of B.C. litigants.
Read the full judgement in Hislop v Canada, 2003 O.J. 5212
In the evening of November 17, 2001, Aaron Webster was killed in Stanley Park. Last week, a youth court judge heard the case against the first of five defendants.
The circumstances of the assault were brutal. Webster had been on a gay stroll in the park. The accused was one of five young men who had set out for Stanley Park armed with weapons, with the express intention of beating someone up. This was their third foray into the park to beat up on the men they found there. They hid in the bushes, and when Webster walked by, they jumped him, knocked him to the ground, and beat him with baseball bats and golf clubs, and kicked him, even after he was unconscious, till he was dead. His body was found shortly afterwards by a friend of his who was in the area.
The sentencing provisions of the Criminal Code specify that if a crime is motivated by hatred on the grounds such as race, religion, and sexual orientation, the sentence should be increased. But in this instance the Crown did not allege that the crime was a hate crime. Their rationale for not doing so was that the youth, who confessed to the assault, said that the five of them had gone to the park for the purpose of beating up peeping toms who watched couples make out in their cars. Because the accused did not specifically say that his purpose was to assault someone because he was gay, reasoned the Crown, it could not prove that the crime was a hate crime.
The Crown had originally set out to have the youth ‘raised’ to adult court, so that he would be subject to the more severe sentences in that court. But in exchange for the youth’s agreement to confess to the crime, the Crown abandoned that intention and settled for trying the youth in youth court, where the maximum sentence is three years.
The judge disagreed with the Crown that the crime was not a hate crime. In a decision released December 18, Judge Romilly compared the actions of the five youth to the behaviour of Nazi Youth in the early years of the Nazi regime in Germany. He noted that the assault was premeditated - the young men had taken weapons with them. Because they acted as a gang, it did not matter whose blow had caused the death.
The judge said:
"I am of the opinion that this crime was motivated by "bias, prejudice or hate based" on a factor similar to sexual orientation and is covered by this section of the Criminal Code. It strikes me that this section contemplates hatred against "peeping toms" and/or "voyeurs" as being within its purview, since in my opinion such activity represents a sexual lifestyle which some may consider deviant, but is a sexual lifestyle all the same.
I have been advised that the media has been describing this incident as a "gay-bashing" with no foundation for saying so. On this point I find it incredible that the accused and his friends who were obviously in the habit of visiting the park to "beat up" peeping toms" and "voyeurs" were so naive that they did not notice that this area was frequented by gays. In any event a gay person was "bashed" by the accused and his friends in an area reputedly frequented by gays, and in that regard I fail to see why it cannot be regarded as a "gay bashing."
The attack was cowardly and so brutal that it caused the death of Aaron Webster.
This was a random, unprovoked attack by a group of strangers on a hapless victim who did not even fight back.
The young person confessed one and a half years later and after there were rumours around his school of his involvement. He even denied it at first.
The accused and his friends were in the habit of taking weapons in their vehicle with the purpose of seeking out certain innocent male victims and assaulting them."
In sentencing the youth to the maximum three years under the Young Offenders Act, the judge imposed a sentence longer than either the defence or the Crown had recommended.
The other four individuals involved are still awaiting trial.
Read the full decision in R. vs J.S. 2003 B.C.J. 2877
"There have always been setbacks on the road to equality," said Kimberly Nixon, commenting on Friday’s decision by the B.C. Supreme Court that Rape Relief is not required to permit transsexual women to volunteer with their organization. "We will of course appeal, and we expect to be successful at the end of the day."
This decision is the third in a saga which began when Nixon filed a human rights complaint against Rape Relief in 1995. Though the organization had prescreened Nixon and invited her to participate in their volunteer training course, she was later expelled from the training because of the facilitators’ prejudice against transsexual women.
Rape Relief went to B.C. Supreme Court to argue that transgendered people have no human rights in B.C. because protection from discrimination on the basis of ‘sex’ was intended only to protect women from discrimination by men. In ruling against them, the court said, "...human rights legislation is intended to preclude and rectify the wrongful oppression of the weak by the strong and of the disadvantaged by the advantaged in society", and referred the matter for hearing by the B.C. Human Rights Tribunal.
In upholding Nixon’s complaint and making the highest damages award in B.C. history, the tribunal noted that Rape Relief’s own expert had conceded that some transsexual women would be appropriate as peer counselors in women’s centres. The point of human rights legislation is to require that a person be assessed on her own merits, rather on the basis of stereotypes, the tribunal held.
Rape Relief then initiated another judicial review. In its decision released December 19, the court accepted Rape Relief’s argument that the law which applies to human rights cases has been changed. Instead of being able to prove a ‘prima facie’ case of discrimination, after which the burden to disprove discrimination shifts to the appellant, the court held that a complainant must prove all of the elements of discrimination.
Said barbara findlay, Nixon’s lawyer, "The effect of the judgement is to eviscerate human rights protections across the country, for all peoples. Applicants who are discriminated against in hiring, for example, do not have the ability to prove that the employer chose someone less qualified". Findlay noted that the consequences of the decision are especially grave in light of the elimination last year of the B.C. Human Rights Commission, a body whose role had been to investigate the facts of a complaint. "Everyone who is discriminated against is affected by this decision," said findlay. "We are appealing the decision to the Court of Appeal, and we have already been contacted by concerned human rights groups wanting to intervene."
Because Nixon will have to pay thousands of dollars to pay for transcripts to go to the Court of Appeal, a Kimberly Nixon Defence Fund has been established. Send donations c/o The Law Office of barbara findlay, QC 635-1033 Davie, Vancouver BC V6E 1M7, made out to "Kimberly Nixon Defence Fund".
The battle for equality for same sex marriage heads to the Supreme Court of Canada. Though the federal government did not appeal the rulings permitting same sex marriages in British Columbia and Ontario, it has requested a "reference" to the Supreme Court. A reference is a formal request to the highest court to express an opinion on a matter of constitutional law. The federal government is asking the Court to rule whether its proposed definition of marriage "a lawful union of two persons to the exclusion of all others" is constitutional.
Ironically, in its written arguments to the court filed October 31, the federal government, who opposed claims for same sex marriage rights in BC, Ontario and Quebec, now argues in favour of those same rights.
The federal decision not to appeal the B.C. and Ontario courts’ rulings in favour of same sex marriage infuriated the religious right, who had been granted ‘intervenor’ status in those proceedings. Those groups sought permission from the Supreme Court of Canada to appeal even though the government had chosen not to, but their request was denied.
The ‘shadow’ question at issue in the federal reference is which government, provincial or federal, can legislate about same sex marriage. In Canada’ constitution, the federal government is given power over "marriage and divorce", while the provinces are given responsibility over "solemnization of marriage". Alberta’s Ralph Klein has said that his province will never permit same sex marriage.
Legal observers have little doubt that the Supreme Court of Canada will rule that the federal government has jurisdiction to decide who can marry whom; and that the proposed definition of marriage is constitutional.
Oral argument in the case is set for April 2004, and a decision could take several more months. Once the decision is rendered, Parliament will have to consider what legislation should be passed with respect to same sex marriage. Though Chrétien has said that he would legislate same sex marriage, it won’t be his call. By the time the issue is considered by the House of Commons, Paul Martin will be Prime Minister, and Martin has said that he is open to ‘looking at all the options’. The Alliance Party recently made a motion in the House of Commons to affirm the traditional definition of marriage as a union of one man and one woman for life. The motion was defeated, but barely. Many Liberal backbenchers supported the motion, and the government was saved a serious embarrassment only by persuading some of the anti-equality MPs to stay home and skip the vote.
The option favoured by opponents of same sex marriage is the creation of a status ‘like’ marriage, one which would have all the same rights and privileges as marriage, but would not actually be called marriage. Such regimes are called ‘registered domestic partnerships’. Queer equality activists refer to RDPs derisively as ‘marriage light’. Interestingly, Parliament may not have the power to enact RDP’... since they only have power over ‘marriage’ in the constitution.
Two polls conducted in October 2003 show Canadians favour same sex marriage, but by different margins. An Environics poll has 57% of Canadians favouring same sex marriage, 10% more than in September 2003 - an indication that Canadians are getting the message that the issue is one of equality. A poll by the Centre for Research and Information on Canada has 48% in favour, 47% opposed, to same sex marriage. Younger people and people living in cities are more in favour of same sex marriage than older people and people in rural areas.
Canada is the third country to permit same sex marriages, after Holland and Belgium.
For more information about same sex marriage, go to
To find out about how to get married in B.C., see "Tying the Knot" on the the OutLaw link at this site.
To learn what marriage is, and is not, see "To Wed or Not to Wed" on the OutLaw link at this site.
The government of Taiwan recently announced that it will bring in legislation to legalize same-sex marriage. It will make the island nation, off the coast of mainland China, the first in Asia to allow gay and lesbian couples to marry.
The legislation is being prepared jointly by the cabinet and the president of Taiwan. In a statement, the government said the new law would be ready for parliamentary review in December./span>
The bill would give same-sex couples all of the rights currently enjoyed by those in heterosexual marriages, including the right to adopt children.
Whether the legislation will pass is uncertain.
Hate Propaganda Legislation now in the Senate
Bill C-250 will amend the hate propaganda section of the Criminal Code to protect lesbians, gay men, and bisexual people. The Bill was narrowly passed by the House of Commons in October, and is now being considered by the Senate.
Hate propaganda is against the law if it is directed at a group identifiable by its "colour, race, religion, ethnic origin". Sexual orientation, gender identity, and sex are currently missing from the list of protected grounds.
Svend Robinson, sponsor of Bill C-250, has taken criticism for his failure to include gender identity along with sexual orientation, leaving transgender people vulnerable to hate crimes.
So far no one has argued that ‘sex’ should be on the list.
When a child is born, the woman who delivers the child is entitled to maternity leave. Either the mother, or the father, is entitled to take ‘parental leave’ after the maternity leave ends.
In a recent appeal, EI has finally recognized that lesbian co-mothers who choose to have a child together are entitled to be treated the same way. They had been refusing parental leave to co-mothers, telling them that they were entitled to leave only if they adopted the child and took adoption leave.
Everyone knows that Canadians can sponsor their spouse to come to Canada.
What everyone does not know... and what it takes a great deal of searching on Immigration Canada’s website to find out, is that common law heterosexual and same sex partners have the same right, provided they have been together for more than one year. And anyone who qualifies to come to Canada as a skilled worker is entitled to bring her or his same sex partner with them.
The federal governmnent has just made it easier to immigrate to Canada, by reducing the number of "points" that a prospective immigrant must have from 75 to 67. A person achieves points based on an assessment of their age, language abilities, work experience, education, and connectionst to Canada.
If a (same or opposite sex) couple are thinking of moving to Canada, only one of them needs to have the 67 points; the other is eligible to come as a spouse.
To see if you are eligible to come to Canada you can take the free assessment on this site
Kimberly Nixon is very tired. It is nine years since Rape Relief kicked her out of their volunteer training program because she is a transsexual woman. The BC Supreme Court has just finished five days of hearing into a ‘judicial review’ (a form of appeal) of Kimberly Nixon’s win in front of the human rights tribunal.
Nixon brought a human rights complaint alleging that Rape Relief had discriminated against her on the basis of ‘sex’. The first thing that Rape Relief did was to go to court and argue that transsexual people had no human rights in British Columbia, that the ground ‘sex’ was intended to protect only women and men. They lost. The court pointed out that Nixon had been medically assessed to be a woman, had had treatment for her gender dysphoria, had had sex reassignment surgery to cure the gender dysphoria, and is now, legally, a woman.
Nixon then appeared for more than 20 days of hearing before the B.C. HUman Rights Tribunal, which found 100% in her favour, awarding her the highest damages award in the tribunal’s history.
Rape Relief went back to court, this time complaining that the tribunal had made mistakes in their judgement.
A decision in the case is not expected for several weeks or months. To read an article about the Nixon case, click here (.pdf 170k).
Two lesbian families, each with a child conceived by assisted insemination with sperm obtained from a fertility clinic, registered the births of their child naming both co-moms as parents. Vital Statistics sent the applications back, insisting that registration on birth certificates was only for biologically-related parents. However, it turns out that Vital Statistics returned only those applications for registration where both parents had ‘female’ names. Heterosexuals who had used anonymously-donated sperm simply registered the ‘social’ father as the birth father.
The human rights tribunal held that this was a case of discrimination on the basis of sexual orientation, in Gill, Maher et al v B.C.
The tribunal ordered that the Vital Statistics Registry had to cease discriminating in the same or a similar way; and that they had to develop a form on which two lesbian co-moms could register the birth of their child, where the child had been conceived by assisted insemination.
The government was incensed at the decision, because they said they wanted to change the forms to include only parents bviologically connected to the children. They took ‘judicial review’ (a kind of appeal) of the tribunal’s decision.
In July, the BC Supreme Court said that the tribunal did not have jurisdiction to make an order about what the birth registration forms looked like. The tribunal could only order that the Vital Statistics Agency quit discriminating.
If you or anyone you know is having a baby conceived with anonymous sperm, and you have any difficulty registering both of you as the parents of that child, please let me know immediately. We have told the government that if they change the forms, we will regard the change as a breach of the order not to discriminate in the ‘same or a similar’ way.
Was the relationship three years long, or seventeen years long? According to the plaintiff, the two men had been in a 17 year relationship; according to the defendant, the relationship had ended 14 years before, when the plaintiff had become HIV+. In awarding interim spousal maintenance to the plaintiff of $2500 per month, the Ontario judge noted that the defendant had uncomplainingly supported the plaintiff till the plaintiff got involved with someone else. She came to this conclusion based on the fact that they had mutual wills and powers of attorney; shared bedrooms; joint purchase of property; etc, even though the parties had lived apart for months or (according to the defendant) years at a time. The moral of the tale is that it is important to clarify your mutual expectations of what will happen if your relationship ends by having a ‘cohabitation agreement’ which specifies whether and for how long one of you will have to pay support to the other if the other is financially dependent when the breakup occurs. Counsel for the plaintiff noted in an interview in Lawyers Weekly that it is not uncommon when same sex relationships end for one of the two to claim that they were ‘just friends’.
Today will go down in history as the day that queers in B.C. got the right to marry. Dawn Barbeau, one of the couples I represented at the BC Supreme Court in the marriage case, has already married in Toronto. She says she cannot not believe what a difference being married makes. She said they felt as if they had the entire power of the state behind them.
And they do.
I was at a party of perhaps forty middle aged lesbians last week. I canvassed the crowd to find out how many couples planned to marry. The reaction from all but the one couple who intended to tie the knot was that though they personally had no intention of marrying, they were adamant that they wanted the choice.
And now we do.
I am surprised at the profundity of my reaction today, since it has been inevitable for some time that the right to marry will come. I feel like weeping, for all the times and all the ways that we have been excluded/vilified/criminalized over the years/decades/centuries. And I feel lightheaded with relief and euphoria: this cannot be taken from us. I feel like laughing and crying at the same time...
And so I do.
It is entirely the Charter of Rights that has moved us forward over the last decade. In 1992, we had not even basic human rights protections against discrimination, provincially or federally. Now, there are no legal impediments for lesbians and gay men in B.C.
As lesbians and gay men your rights are not only protected by the legislation of governments, subject to political whim: your rights are guaranteed by the constitution of the country. Each of you who has come out to her family, spoken up at his workplace, supported court cases, lived your lives as gays and lesbians and bisexuals in this province, have contributed to this stunning achievement. You worked to have the rights of every Canadian.
And now you do.
barbara findlay
British Columbia made Canadian legal history on May 1, 2003 when the Court of Appeal ruled unanimously that it is discriminatory, and therefore unconstitutional, to deny to queers the right to marry.
B.C. gave the federal government till July 2004 to amend its laws so that the laws did not discriminate against same sex partners.
Not to be outdone by B.C., the Ontario Court of Appeal ruled on June 10, 2003 ruled, as B.C. had done, that to exclude same sex partners from marriage is unconstitutional. But Ontario went one step further, holding that their decision was effective immediately.
Already lesbians and gay men from Ontario, other provinces, and the United States are flocking to the altar, or the marriage commissioner.
The Quebec Court of Appeal has yet to issue its ruling, in the third Canadian marriage challenge, but it is expected to follow Ontario’s lead.
The federal government is scrambling to keep up. Its parliamentary committee investigating same sex marriage voted that the federal government should accept the Ontario ruling, and not appeal it. Meanwhile, the federal government is quietly agreeing with the B.C. marriage litigants to request that the B.C. Court of Appeal change its ruling so that marriages are available here immediately also. Observers expect that it will be possible to marry in B.C. within days or weeks at the most. For the feds, this means that same sex marriage will already be legal in the three most populous provinces when its marriage legislation is introduced in the fall. Opponents of same sex marriage will then be in the position of trying to push the clock back; and are likely to fail.
Until the B.C. Court of Appeal roles back the effective date of the right to marry, people must travel from B.C. to Ontario to get hitched. Once they are married, though, their marriage is valid throughout the country.
To read the judgement in Barbeau v Canada, the B.C. case click here for a synopsis of the Ontario judgement in Halpern v Canada click here (pdf).
In a wonderful 7:2 judgement the Supreme Court of Canada has directed the Surrey School Board to reconsider its decision to ban three primary school stories which show families with same sex parents -- and directing the board not to consider the religious views of board members.
In banning "One Dad Two Dads Brown Dads Blue Dads" and two other books like it, the Board had bowed to pressure from Christian constituents. This, said the Supreme Court of Canada, was improper, because the School Act specifies that education must be secular; and because in making its decision the Board did not consider the interests of children from same sex families.
The decision is a vindication of the long fight by Peter Cook and Murray Warren and other members of GALE (Gay and Lesbian Educators).
In a case watched carefully by gay and lesbian activists, the Supreme Court of Canada has held that being married is not the same as living common law. One of two common law partners had argued that she should be entitled to the provisions of the family law which give spouses an automatic 50/50 division of assets upon the breakdown of a marriage. Though the courts have held that for many purposes it is improper to draw a distinction between people who are married and people living common law, in this case the court held that people must have a choice about whether to enter a marriage -- and benefit from the equal property provisions -- or whether to live common law, in which case the regime applicable to married people should not be applied to them without their agreement.
In highlighting the difference between living common law and being married, and in emphasizing the consitutional importance of individual choice, the case sends a hopeful sign for same sex marriage. If equality is to prevail, everyone must have a choice about whether or not to marry.
The law that applies to same sex partners when they break up is complicated. There is no automatic assumption of 50/50 division. But if one partner has contributed money or labour and the other party has had a benefit from it, the first partner can make a claim. The unfortunate thing is that making such a claim involves reviewing every purchase, every credit card receipt, every home repair from the beginning of the relationship -- an incredibly expensive process.
The only solution is to have a cohabitation agreement, which specifies how property will be divided if people break up. Though people sometimes object to making a cohabitation agreement because it seems that they expect to break up, people buy fire insurance every day without planning a fire!
The federal government has finally changed the rules governing applications to immigrate from lesbians and gay men to Canada.
Till June 2002, the only way for the gay or lesbian partner of a Canadian to immigrate to Canada was for the non-Canadian to make an application on ‘humanitarian and compassionate’ grounds.
While those applications were almost always successful, they took much longer to process than did the applications of heterosexual Canadians who were married, or who intended to marry. Those applications were processed in the priority stream of the ‘family class’.
As of June 28, 2002, lesbians and gay men can sponsor their non-Canadian partners as members of the family class if they have lived together for a year, in which case, they qualify as ‘common law partners’, or if they have had a ‘conjugal relationship’ for a year, in which case they are processed as ‘conjugal partners’.
Being processed as a member of the family class means that applications are quicker. It also means that the non-Canadian does not have to pass a medical screening to be eligible to come to the country.
The new rules offer benefits to gay or lesbian partners who want to come together to Canada. Provided one of the two partners qualifies under Canada’s regular immigration categories - as a skilled worker, a business investor, etc - then other can come as a same sex spouse.
The ‘Welcome to Canada’ section of the website (under Out/Law) is currently being updated to reflect these changes.
An Ontario court has become the first Canadian court in history to rule that lesbians and gay men are entitled to marry.
In a decision released July 12, 2002, the court held that restricting marriage to heterosexuals contravenes the equality rights in the Canadian constitution. The court gave the federal government two years to fix the discriminatory legislation.
The Ontario case, available [link to decision], is one of three in Canada. Last summer, the B.C. Supreme Court held that although the refusal of the right to marry was discriminatory and contrary to the Charter of Rights, the government’s exclusion of queers from the institution of marriage was ‘demonstrably justified in a free and democratic society’. The court upheld the discriminatory treatment of same sex marriages. A third case has been argued but not decided in Quebec. It is expected that all three cases will be argued together in front of the Supreme Court of Canada.
In British Columbia, same sex partners who have lived together one year have all the rights and responsibilities of married people under federal law. When they have lived together for two years, they have all the rights and responsibilities of married people under British Columbia law.
It appears that the federal government is going to bow to pressure from LEGIT and from EGALE, and permit same sex couples to come to Canada on the basis of their conjugal relationship of a year -- even if the couple have not cohabited during that period.
Chris Morrissey of LEGIT advised me to day that she had had a call from the Ministry of Immigration outlining the proposal to add a third category (after spouse, and common law heterosexual or same sex spouse) to the family class.
The news is a big relief for queers, who have been watching the immigration developments anxiously. For the last 10 years same sex partners have been admitted to Canada under the ‘humanitarian and compassionate’ ground. Processing times were very slow because the applications were not part of the highest-priority category family class. In addition, applicants could be refused if they were considered to be likely to drain Canada’s medical resources. Under the regulations "pre-published"in December, common law partners -- straight, gay or lesbian, would have to demonstrate that they had lived together for a year. For same sex partners that is a practical impossibility in many circumstances, so the result would have decreased the numbers of same sex partners Canada admitted.
The Parliamentary Committee which was considering changes to the regulations heard forceful submissions from LEGIT and EGALE, and as a result recommended against the restriction of a one year cohabitation.
As a result, the Ministry of Immigration has advised EGALE and LEGIT that it intends to include another category in the family class, for same sex partners who have not cohabited for a year. This will mean that same sex partners will have the advantages of the family class: faster processing, exemption from the medical inadmissibility test, exemption from demonstrating that the Canadian partner meets the Low Income Cutoff to sponsor their non-Canadian partner. (Note; Canadian includes both citizens and permanent residents).
Watch this space for updates as they happen. The regulations are expected to be published on May 4, 2002, after which there will be certainty to the new process.
Congratulations to LEGIT (especially Chris Morrissey and Deb Rose) and EGALE.
The federal government is holding a "consultation" on proposed changes to the Immigration Act, some of which will affect queers. Same sex partners of Canadians have been coming to the country under ‘humanitarian and compassionate’ grounds. The government -- in what *they* hail as a progressive move -- will now treat same sex partners as "common law" partners.
The result for queers who have non-Canadian partners may be that they are required to cohabit for a year before they are entitled to come to Canada as common law same sex partners -- a requirement that does not currently exist, and that will work severe hardship on queers in countries where sexual orientation is illegal or persecuted.
LEGIT, the national Lesbian and Gay Immigration Task Force, and EGALE made submissions last week. Stay tuned for developments. Discussions are continuing.
NOTE: IF YOU ARE THINKING OF BRINGING YOUR SAME SEX PARTNER TO CANADA START THE PROCESS NOW. Contact me for more information bjf@barbarafindlay.com
In a decision released on January 17, 2002 the B.C. Human Rights tribunal awarded Kimberly Nixon the highest damage award in the tribunal’s history, for being ejected from the training program offered by Rape Relief, a woman’s crisis shelter, because she had once been treated as male.
The tribunal followed traditional human rights analysis to hold against Rape Relief. The chair said that there was no evidence that Rape Relief considered trans women in the development of the standard that all volunteers should be non-trans; that it did not in any event have a policy about trans women; that the organization made absolutely no effort to assess Kimberly Nixon’s skills but instead relied on stereotyped assumptions; and that the Rape Relief made no effort to explore with Kimberly whether there was a way for Kimberly to be part of the training program.
Nixon had testified that she has always experienced herself as female, from her earliest memories. Dr. Diane Watson, a gender expert, said that from a medical point of view Nixon had always been a woman. Nixon had been trained as a women’s crisis counsellor at Battered Women Support Services, where she worked as a volunteer. Rape Relief argued that the reason it mattered that Nixon was treated as male when she was young is that she had not shared the universal experience of women of being oppressed by sexism while they were growing up; in that context, Nixon’s training was irrelevant.
Rape Relief had expelled Nixon from its volunteer training when the facilitator recognized that Nixon was a transsexual woman. They did not disagree that Nixon had been excluded, but argued that the exclusion was justified.
They argued, first, that transgender people have no human rights protection because ‘gender identity’ had not yet been added to human rights legislation. Then they argued that in order to prove discrimination, Nixon had to prove not only the exclusion, not only that the exclusion was based on a protected ground, she also had to prove that harm resulted -- and "hurt feelings" were not enough. Next they argued that even if what they did was discriminatory, they had a "bona fide justification" (legalese for a good reason’) to exclude her, because childhood socialization as a girl was an indispensable element of being able to work as a rape crisis counsellor. After that they argued that in any case, as a women’s organization they were protected by the "affirmative action" section of the code. (That section says that if a group is formed for the purpose of improving the condition of people traditionally discriminated against, the group can be composed entirely of that group without offending the discrimination provisions of the code. So...it is ok to have a women-only group, a group of people of colour only, etc. Rape Relief said that section meant that as an organization it was exempt from human rights complaints.
If those arguments had succeeded, human rights legislation would have been eviscerated. First, it would mean that anyone whose marginalization was so severe that it had not made it to the list of explicit guarantees could not benefit fro an expansion of existing categories in the legislation in light of new understandings, but would have to persuade politicians to change the legislation -- hardly a result that equality seeking groups can support. Next, it would be impossible to prove many discrimination cases -- especially systemic discrimination -- if you had to prove the effects of the discrimination instead of having the onus shift to the respondent to prove that he/it did not discriminate.
If it is acceptable to argue that who one is as opposed to what one knows is an acceptable way to assess people for participation in a group, then the central idea of human rights protection -- that one cannot be judged by stereotypes but must be assessed individually -- disappears.
And if it is permissible for a women’s organization to discriminate against trans women because of the section 41 protection, then it is permissible for aboriginal organizations to mistreat aboriginal women; for disability advocacy groups to exclude people who are HIV+, for groups of people of colour to exclude people who "look" white.
The decision will make it clear that it is no more acceptable to say that they cannot imagine working in a rape crisis centrewith a transsexual woman, than it would be to say that they cannot imagine working in a rape crisis centre with a woman ofcolour, a lesbian, or a woman with a disability.
To read the full decision: click here
To read arguments in the case: click here
Aaron Webster was murdered in Stanley Park one night last fall. Police are treating the murder as a gay bashing.
Webster’s murder highlights the homophobia which continues to be embedded in Canada’s criminal code. As the law now stands, if a gay man comes on to a straight man, and the straight man responds by killing the gay man, the straight man can plead ‘homosexual panic’. If the plea is successful - and it regularly is - the straight man is not convicted of murder (for which there is a mandatory 25 year life sentence) but for manslaughter, for which there is no statutory minimum.
The "homosexual panic" idea originated in the early 1900’s when Freudian psychiatrists theorized that men who were themselves "latent homosexuals" would react violently, from a combination of revulsion and desire, if a man made a sexual overture to them. But the straight man need no longer prove he is a latent homosexual to take advantage of the defence.
Another part of the Criminal Code mandates higher sentences in situations where a person is convicted of a criminal offence which is motivated by hatred of the victim because of the victim’s race, religion, etc. Conspicuously absent from the list is "sexual orientation". So gay bashing is not regarded by the law as worthy of more severe sentences.
Lesbian co-mothers have the right to register both parents on a child’s birth certificate, a B.C. Human Rights tribunal has held. see the case info
But the fight is not over. Following the order of the Human Rights Tribunal, the Vital Statistics Agency has created a new birth registration form. It is essentially indistinguishable from the old form...except for one thing. Now there is a separate box for "co-parent" in addition to the mother/father boxes. But according to the definition on the form, you are only a co-parent if you are a lesbian co-mother whose child was conceived by assisted insemination.
The inequality remains. A heterosexual couple whose child is conceived by assisted insemination can continue to register the child’s co-parent as his "father". But a child’s lesbian co-mother has to be identified in a special category.
And the Vital Statistics Agency purports to limit the availability of the co-parent category to lesbian co-parents whose child is conceived by anonymous donor.
The Human Rights Commission is reviewing the discriminatory provisions to determine whether to object to the Vital Statistics Agency’s proposed solution. Because there will shortly be a national conference on identity documents, I have suggested that lesbians in every province launch similar human rights complaints to ensure that a national standard is developed which respects the rights of queer families
