From: mathew@unixg.ubc.ca (Mathew B Englander)
Newsgroups: can.politics,soc.culture.canada,can.general
Subject: Re: Gay rights and the Charter
Date: 22 Nov 1992 05:28:22 GMT
Organization: University of British Columbia, Vancouver, B.C., Canada
NNTP-Posting-Host: unixg.ubc.ca

The Canadian Charter of Rights and Freedoms applies only to governments,
not to private individuals or corporations. For example, the Charter
provides for freedom of expression, but if your employer is somehow
limiting your freedom to talk, you have *no* recourse to the Charter.

There are, however, federal and provincial statutes that could help
you. For example, the Ontario Human Rights Code and the Canada Human
Rights Act. These are not part of the Constitution of Canada, but they
typically make it illegal for a private person (or corporation) to
deprive another person of a "human right".

The case Haig v. Canada, in the Ontario Court of Appeal, dealt with
the question of whether the Canadian Human Rights Act (CHRA) vio-
lated the Charter by prohibiting discrimination on certain grounds,
e.g. sex, age, race, but not others, e.g. sexual preference. The
Court decided that "sexual orientation" should be "read in" to
the CHRA's list of prohibited grounds of discrimination.

Section 3(1) of the CHRA is as follows:

	3. (1) For all purposes of this Act, race, national
	or ethnic origin, colour, religion, age, sex, marital
	status, family status, disability and conviction for
	which a pardon has been granted are prohibited grounds
	of discrimination.

Section 15(1) of the Charter is as follows:

	15. (1) Every individual is equal before and under the
	law and has the right to the equal protection and equal
	benefit of the law without discrimination and, in
	particular, without discrimination based on race, national
	or ethnic origin, colour, religion, sex, age or mental
	or physical disability.
	[Section 15(2) provides an exception for so-called
	affirmative action programs.]

Reminder: the Charter places limits on governments only, while
the CHRA places limits on individuals and corporations.

Note that the list in s.15(1) of the Charter is a non-exhaustive
list; it essentially says "governments definitely can't discriminate
on these grounds, but there may be others as well". The courts have
generally found that although not listed explicitly, sexual
orientation is "analogous" to some of the listed grounds, and
therefore s.15(1) does prohibit governmental discrimination
on the basis of sexual orientation.

Notice, however, that s.3(1) of the CHRA does give a comprehensive
list of grounds of discrimination that are prohibited. It says
"Here is what this Act applies to", not "Here are some of the things
this Act applies to".

The applicants in Haig v. Canada claimed that s.3(1) of the CHRA
discriminated against gays by denying them the right to "equal
protection and equal benefit of the law". Because the CHRA prohibited
discrimination against women, ethnic minorities, disabled persons, etc.,
but not against gays, they said, it did not provide everyone with
"equal benefit".

Both the trial court and the Ontario Court of Appeal agreed with this.
Essentially, the courts said that the absence of sexual orientation
from the list of proscribed grounds of discrimination in s. 3 of the
Canadian Human Rights Act violates s. 15 of the Canadian Charter of
Rights and Freedoms.

In my opinion, this is wrong. I would argue that the CHRA *does* give
equal benefit to gays. For example, a disabled gay person who was
discriminated against on the grounds of disability would have recourse
to the Act; ditto a black gay person discriminated against on the
grounds of colour. I would argue that the Act applies to certain
behaviour (i.e. several specific kinds of discrimination) and the Act
gives equal benefit and protection to every individual who commits
that behaviour or is harmed by that behaviour. The fact that there
is other behaviour (i.e. discrimination on the grounds of sexual
orientation) that is not covered by the Act is, in my opinion,
irrelevant for the purpose of deciding whether the Act is consistent
with the Charter.

Let me add that I do support, on a policy basis, the amending of the
CHRA by Parliament to ban discrimination against gays. However,
I think it is important that this decision be made by Parliament,
not the courts.

Essentially, what the Court has said is "if you want to ban
discrimination on any ground, you have to ban discrimination
on *all* grounds". However, it is still perfectly fine to ban
discrimination on *no* grounds, because then everyone has "equal"
benefit of the law: i.e. none. There is something wrong here, 
surely.

Following the Haig decision, no legislature in Canada could pass
a law that in some specific area prevented discrimination against
women. The law would also have to prevent discrimination in that
area on the basis of race, national or ethnic origin, colour,
religion, age, mental disability, sexual orientation, and who
knows how many other grounds. This really ties the hands of
our lawmakers, in my opinion. I think the long-term effect
will be to chill attempts to prevent discrimination.

Another thing that bugs me about the Haig decision is that 
the court chose to amend the CHRA by "reading in" the words
"sexual orientation" rather than just saying the law is invalid
and therefore of no force or effect.

If a law is unconstitutional because it provides a benefit
to one group but not another, the courts should strike it down
so that no one benefits. The decision then becomes Parliament's
whether to re-enact the law in a new form so as to benefit all
groups, perhaps reducing the benefit a little to preserve
resources, or to eliminate the benefit entirely.

A court should not, especially, change a law in such a way so
as to require the government to spend more money. In this
case the government will be required to spend money so that
the Canadian Human Rights Commission can deal with all the
new claims from gays who are discriminated against. (Of course,
I happen to think that this is money well spent; my objection
is to the Courts deciding to spend it, rather than Parliament.)

To justify this "reading in" rather than striking down the
section, Judge Krever simply presumes what Parliament would
have wanted. The judgment reads:

	Given the evidence in the material before the court ...
	of the commitment of successive Ministers of Justice
	on behalf of their governments to amend the legislation
	to add sexual orientation to the list of prohibited
	grounds of discrimination, it is surely safe to assume
	that Parliament would favour extending the benefit of
	s. 3(1) of the Act to homosexual persons over nullifying
	the entire legislative scheme.
	....
	It is ... inconceivable to me that Parliament would
	have preferred no Human Rights Act over one that in-
	cluded sexual orientation as a prohibited ground of
	discrimination. To believe otherwise would be a
	gratuitous insult to Parliament.

(And we certainly would never dream of gratuitously insulting
our MPs, would we?)

Although I hope the judge is right about what Parliament would
have decided, the fact is that Parliament has not decided. It
is Parliament who is accountable and responsible to the Canadian
people, not judges; Parliament should be the body that makes the
decision. If a law made by Parliament (or a provincial legislature)
is discriminatory, or otherwise inconsistent with the Charter,
then judges should simply refuse to enforce that law. They should
not attempt to rewrite it.

Mathew Englander.