EGALE commends the Minister of Justice for his commitment to add sexual orientation to the Canadian Human Rights Act. This reflects the nine-year old recommendation of the 1985 report of the Parliamentary Subcommittee on Equality Rights report Equality for All, the eight-year old commitment of the Government in its response Towards Equality, the conclusion of the Courts in the 1992 Haig decision, recently affirmed in the Vriend case from Alberta, and the clear commitments of the present Liberal Government.
In particular, “sexual orientation” needs to be added to the following sections of the Act:
EGALE also commends the Minister for his principled position in resisting the demands of those hostile to this amendment to include a definition of the term sexual orientation. EGALE considers that calls for a definition are in reality an attempt to undermine the proposed amendment and to focus attention on questions of semantics rather than on the substance of the issue, which is the discrimination faced by lesbians, gays and bisexuals. EGALE would be unequivocally opposed to any attempt to include a definition in the proposed amendments.
We recognize, however, that a tactic of opponents of lesbian and gay equality will be to criticize inclusion of the phrase “sexual orientation”, ostensibly on the grounds of lack of clarity. EGALE has therefore attached a Fact Sheet to this memorandum dealing with the issue of definition, which we hope will assist the Minister in responding to these concerns.
To lesbians, gays and bisexuals, it is self-evident that one component of sexual orientation discrimination is the refusal to recognize our relationships. According benefits to heterosexual couples but denying them to homosexual couples is clearly discrimination on the basis of sexual orientation. Unless the amendments make this explicit, however, it is likely that the matter will have to be litigated. In EGALE’s view, there can be no justification for the Government wasting public money litigating this issue, and we therefore recommend a clause in the Bill stating that “for the purposes of clarity, sexual orientation includes the status of being in a relationship with a person of the same sex.”
Such a clause falls far short of a full federal review of discriminatory legislation, but remains a necessary component of effective protection in the Human Rights ACL
We note also that there is some precedent in the existing legislation for such a clause. Section 3(2) of the Act, for example, clarifies that sex discrimination includes pregnancy discrimination, section 14(2) clarifies that sex discrimination includes sexual harassment, and section 25 clarifies that disability “includes disfigurement and previous or existing dependence on alcohol or a drug”.
It therefore seems entirely appropriate to clarify that sexual orientation discrimination includes relationship discrimination.
EGALE reiterates its position that the amendments must provide that multiple grounds of discrimination can be combined into one complaint. Such a clause will help to ensure support for the amendments from a broad range of equality-seeking groups and has been requested by the Canadian Human Rights Commission. The Supreme Court of Canada also indicated obiter support for this position in the Mossop case.
EGALE requests the opportunity to offer comments on the wording of such a clause prior to the introduction of the amendments.
In EGALE’ 5 view, it would be unacceptable if the protections of the Human Rights Act could be undermined by discriminatory provisions in other Acts or regulations. Section 47(2) of the Ontario Human Rights Code provides that that Act shall prevail over other inconsistent Acts or regulations “unless the Act or regulation specifically provides that it is to apply despite this Act.”
It is essential that the quasi-constitutional nature of human rights legislation is not eroded by other federal legislation, and EGALE therefore feels that the amendments need to contain a primacy clause such as that found in the Ontario Human Rights Code.
EGALE assumes that the amendments will be adopted as a matter of Government policy, rather than subjected to a free vote. EGALE also urges that any future extensions of same-sex benefits not be subject to a free vote. In our view, matters of fundamental human rights are not suitable to be left to the whim of individual MPs, particularly when the historical disadvantage faced by lesbians, gays and bisexuals means that opponents of such measures are more likely to be influenced by personal prejudices than by legitimate political considerations.
Furthermore, the Ontario experience with Bill 167 demonstrated clearly the political damage wrought by the free vote process on this issue. Permitting a free vote essentially encouraged party divisiveness and prevented the Ontario Government from enacting its own Bill.
Although the focus of this memorandum is on the substance of amendments to the Canadian Human Rights Act, EGALE notes that the Government has yet to indicate any clear commitment to recognizing same-sex relationships. We understand that the matter is “under review”, but are concerned that the review is not taking place in the context of a commitment to implement equality for our relationships, nor are we aware of any time-frame within which this review will be completed.
EGALE is perfectly willing to publicly applaud the Minister’s initiative in bringing forward the amendments to the Human Rights Act, but it must also be recognized that the amendments will simply bring the Act into accordance with existing Court decisions. Many members of our communities are awaiting with interest a clear government position on relationship recognition.
Once again, EGALE thanks the Minister for the opportunity to have input into the substance of the amendments and commends the Minister for his actions in bringing this important equality issue forward.
The proposals we have outlined in this Memorandum represent, in our view, the very minimum necessary to make the Human Rights Act more responsive to the needs of lesbian, gay and bisexual Canadians. Our proposals are based upon our combined experiences of discrimination as lesbians, gays and bisexuals, and our years of work in addressing the needs of these communities. Should any of our suggestions not be considered appropriate, we would request the opportunity for further dialogue before any final decision is made.
Again, we express our appreciation and request that further meetings be scheduled with the Minister on a regular basis so that we may address together the common goals of developing federal legislation which accords lesbians, gays and bisexuals full equality before the law.
Egale Canada ©2007