Human rights commissions and public policy: The role of the Canadian human rights commission in advancing sexual orientation equality rights in Canada

Canadian Public Administration

Volumn 51, Issue 2, 2008, Pages 239-263

  Nierobisz, Annette ^a,b   Searl, Mark ^a,c   Théroux, Charles ^a,d  

^a Canadian Human Rights Commission

^b CARLETON COLLEGE   (United States)

^c Legal Advisory Services Division

^d Research and Statistical Analysis Division

Author keywords

[No Author keywords available]

Indexed keywords

EID: 51349131505     PISSN: 00084840     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1754-7121.2008.00017.x     Document Type: Article

References (85)

1. Canadian Human Rights Act, R.S.C. 1985, c. H-6; W.S. Tarnopolsky, Discrimination and the Law in Canada (Toronto: Richard De Boo, 1982), pp. 25-37.
2. Human rights legislation came into effect in Yukon in 1987, Nunavut in 2003, and the Northwest Territories in 2004. Yukon and the Northwest Territories both have human rights commissions, while in Nunavut allegations of discrimination are dealt with directly by the Nunavut Human Rights Tribunal.
3. R.B. Howe and D. Johnson, Restraining Equality: Human Rights Commissions in Canada (Toronto: University of Toronto Press, 2000), pp. 42-4.
4. Ibid., pp. 34-5.
5. M. Smith, "Social movements and judicial empowerment: Courts, public policy, and lesbian and gay organizing in Canada," Politics and Society 33, no. 2 (June 2005), pp. 327-53;
6. T. Warner, Never Going Back: A History of Queer Activism in Canada (Toronto: University of Toronto Press, 2002), pp. 191-217;
7. M. Smith, Lesbian and Gay Rights in Canada: Social Movements and Equality-Seeking, 1971-1995 (Toronto: University of Toronto Press, 1999), pp. 42-3, 66, 134-36;
8. D. Rayside, On the Fringe: Gays and Lesbians in Politics (Ithaca, N.Y.: Cornell University Press, 1998), pp. 105-39;
9. M. Smith, "Reluctant Recognition: The Liberal Government and Lesbian and Gay Rights," in L.A. Pal, ed., How Ottawa Spends 1998-99 (Toronto: Oxford University Press, 1998), pp. 293-314.
10. Warner, Never Going Back, p. 46.
11. D. Kimmel and D.J. Robinson, "Sex, crime, pathology: Homosexuality and Criminal Code reform in Canada, 1949-1969," Canadian Journal of Law and Society 16, no. 1 (2001), pp. 147-65.
12. Civil Marriage Act, S.C. 2005, c. 33.
13. See, for example, K. Lahey, Are We 'Persons' Yet? Law and Sexuality in Canada (Toronto: University of Toronto Press, 1999), p. 28.
14. M. Smith, "Recognizing same-sex relationships: The evolution of recent federal and provincial policies," CANADIAN PUBLIC ADMINISTRATION. See also Smith, Lesbian and Gay Rights in Canada.
15. Although the list of prohibited grounds of discrimination in Section 15 of the Charter does not expressly include sexual orientation, this has been recognized as "analogous" grounds in jurisprudence. See Haig v. Canada, [1992] 9 O.R. (3d) 495; Egan v. Canada, [1995] 2 S.C.R. 513.
16. M. Smith, "Reluctant Recognition: The Liberal Government and Lesbian and Gay Rights," in Pal, How Ottawa Spends, p. 296.
17. Ibid.
18. M. Smith, "Social movements and judicial empowerment," Politics and Society, p. 336.
19. See D.G. Casswell, Lesbians, Gay Men and Canadian Law (Toronto: Edmond Montgomery Publications, 1996), pp. 29-39.
20. This occurred as a result of court decisions in Newfoundland (Human Rights Commission) v. Newfoundland (Minister of Employment and Labour Relations), [1995] 24 C.H.R.R. D/144 (NfId. S.C.), and Vriend v. Alberta, [1998] 1 S.C.R. 493.
21. Canadian Human Rights Act, R.S., 1985, c. H-6, s. 2.
22. Ibid., s. 26(1).
23. Ibid., s. 26(2)-(4). The commissioner of official languages is appointed for a fixed seven-year term for a similar reason. As M.C. MacMillan explains, a seven-year term ensures that the commissioner does not become "the mouthpiece of the government of the day." M.C. Mac-Millan, "Active conscience or administrative vanguard? The commissioner of official languages as an agent of change," CANADIAN PUBLIC ADMINISTRATION 49, no. 2 (Summer 2006), p. 161-79.
24. Federal Courts Act, R.S.C. 1985, c. F-7, s. 18.1(4).
25. The National Action Committee on the Status of Women and the Canadian Labour Congress were two groups that appeared before the standing committee on justice and legal affairs, arguing for the necessity of including sexual orientation as a ground in the proposed CHRA. See Canada, Parliament, House of Commons, Standing Committee on Justice and Legal Affairs, Minutes of Proceedings and Evidence (Hansard), 30th Parliament, 2nd Session, 29 March 1977 and 26 April 1977 (Ottawa: Canadian Government Publishing, 1977), p. 7 and p. 11, respectively.
26. Canada, Parliament, House of Commons, Debates (Hansard), 30th Parliament, 2nd Session, 17 February 1977 (Ottawa: Canadian Government Publishing, 1977), p. 3143.
27. Canada, Parliament, House of Commons, Standing Committee on Justice and Legal Affairs, Minutes of Proceedings and Evidence (Hansard), 10 March 1977 and 26 April 1977, p. 21 and pp. 16-17, respectively.
28. Ibid., 10 March 1977, pp. 11-12 (remarks by Mr. Mike Landers, parliamentary secretary to the minister of justice), and p. 21 (remarks by Mr. B.L. Strayer, assistant deputy minister, Policy and Planning, Department of Justice).
29. Warner, Never Going Back, pp. 26-8.
30. G.H.A. Mackintosh, "The Development of the Canadian Human Rights Act: A Case Study of the Legislative Process" (Masters thesis, University of Manitoba, 1982), p. 171.
31. Canadian Human Rights Commission, Annual Report 1979 (Ottawa: Supply and Services Canada, 1980), p. 8 (Cat No. HR 1-1979). Additional grounds recommended in the 1979 annual report include "political belief," "mental handicap (retardation)," "mental illness" and "previous history of mental illness and previous history of dependence on alcohol or other drugs."
32. Ibid., pp. 9-10.
33. Canadian Human Rights Commission, Annual Report 1980 (Ottawa: Supply and Services Canada, 1981), p. 6 (Cat. No. HR1-1980).
34. Canadian Human Rights Commission, Canadians and Discrimination: An Analysis of the 1981 Opinion Poll. Research and Special Studies (Ottawa: Canadian Human Rights Commission, 1982), p. 11.
35. Mackintosh, The Development of the Canadian Human Rights Act, pp. 172-73.
36. The 1989 annual report is the only report from this time-period that does not repeat the recommendation for the inclusion of sexual orientation as a prohibited ground in the CHRA.
37. Canada, Parliament, House of Commons, Standing Committee on Justice and Legal Affairs, Equality for All (Ottawa: Supply and Services Canada, 1985), p. 30.
38. Canadian Human Rights Commission, Annual Report 1991 (Ottawa: Supply and Services Canada, 1992), p. 43 (Cat. No. HR1-1991).
39. Ibid., p. 41.
40. Haig v. Canada, [1992] 9 O.R. (3d) 495.
41. Lahey, Are We 'Persons' Yet?, pp. 49-50.
42. Canadian Human Rights Commission, Annual Report 1995 (Ottawa: Supply and Services Canada, 1996), p. 15 (emphasis in the original) (Cat. No. HR1-1995).
43. n.a., "Ottawa Fails Gays-Yalden: Legal Stalling Blamed on PM," The Province (Vancouver), 20 March 1996, p. A16.
44. Canadian Human Rights Commission, Annual Report 1996 (Ottawa: Public Works and Government Services Canada, 1997), p. 14 (Cat. No. HR1-1996).
45. "Relational rights" is a term used to describe the rights enjoyed by persons in spousal relationships. See Lahey, Are We 'Persons' Yet?, pp. 19, 76-7.
46. Canadian Human Rights Commission, Annual Report 1992 (Ottawa: Supply and Services Canada, 1993), p. 55 (Cat. No. HR1-1992).
47. Canadian Human Rights Commission, Annual Report 1994 (Ottawa: Supply and Services Canada, 1995), p. 10 (Cat. No. HR1-1994).
48. Gerald Hunt's survey of private-sector unions shows that, by 1998, most labour federations were addressing sexual orientation issues; however, there was variation in the level and scope of union involvement. See G. Hunt, "No Longer Outsiders: Labor's Response to Sexual Diversity in Canada," in G. Hunt, ed., Laboring for Rights: Unions and Sexual Diversity across Nations (Philadelphia: Temple University Press, 1999), pp. 10-36.
49. Canadian Human Rights Commission, "Employment Benefits for Same-Sex Couples: A Question of Human Rights." Remarks by Michelle Falardeau-Ramsay at the Professional Institute of the Public Service Symposium, "The Road to Full Equality of Benefits for Same-Sex Common Law Spouses," Ottawa, 25 September 1993.
50. Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554.
51. Egan v. Canada, [1995] 2 S.C.R. 513.
52. Old Age Security Act, R.S.C. 1985, c. 0-9.
53. See Lahey, Are We 'Persons' Yet?, pp. 66-72.
54. Canada (Attorney General) v. Moore (No. 1), [1996] 25 C.H.R.R. D/351 (Can. Trib.).
55. Canada (Attorney General) v. Moore (No. 2), [1997] 29 C.H.R.R. D/185 (Can. Trib.).
56. Rosenberg v. Canada (Attorney General), [1998] 38 O.R. (3d) 577.
57. Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.).
58. Canada (Attorney General) v. Moore (No. 1), [1996] 25 C.H.R.R. D/351, para. 104(d).
59. Canadian Human Rights Commission, Annual Report 1998 (Ottawa: Public Works and Government Services, 1999), p. 39 (Cat. No. HR1-1998).
60. Modernization of Benefits and Obligations Act, S.C. 2000, c. 12.
61. M. v. H., [1999] 2 S.C.R. 3. See M. Hurley, "Sexual orientation and legal rights," Current Issue Review 92-1E (Ottawa: Library of Parliament, 2007), pp. 8-14, for a discussion.
62. British Columbia, Ontario and Quebec had already introduced comprehensive legislation recognizing the rights of same-sex couples in the provincial legislative domain. See Hurley, "Sexual orientation and legal rights," Current Issue Review, pp. 9-12.
63. Canadian Human Rights Commission, "Bill C-23: Modernization of Benefits and Obligations Act." Statement by Michelle Falardeau-Ramsay to the Senate standing committee on legal and constitutional affairs, Ottawa, 31 May 2000.
64. Canadian Human Rights Commission, Annual Report 2000 (Ottawa: Public Works and Government Services, 2001), p. 17 (Cat. No. HR1-2000).
65. In 1974, Richard North and his partner Chris Vogel applied to have their same-sex marriage registered under the Manitoba Marriage Act. For more insight into the legal case that emerged as a result of this application, see Casswell, Lesbians, Gay Men, and Canadian Law, p. 231.
66. th) 214 (Ont. Div. Ct.).
67. See Hurley, "Sexual orientation and legal rights," Current Issue Review, p. 15.
68. Canadian Human Rights Commission, Annual Report 1992, p. 21.
69. Canadian Human Rights Commission, Annual Report 1995, p. 52.
70. The issuance of marriage licenses in Canada falls under provincial jurisdiction and, therefore, is not subject to the CHRA.
71. See Hurley, "Sexual orientation and legal rights," Current Issue Review, p. 26.
72. Canadian Human Rights Commission, "Bill C-23, Modernization of Benefits and Obligations Act." Statement by Michelle Falardeau-Ramsay to the Senate standing committee on legal and constitutional affairs, Ottawa, 31 May 2000.
73. Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships (Ottawa: Public Works and Government Services, 2001), p. 131 (Cat. No. JL2-18/2001E).
74. Canadian Human Rights Commission, Annual Report 2001 (Ottawa: Public Works and Government Services, 2002), p. 19 (Cat. No. HR1-2001).
75. Canadian Human Rights Commission, "Same Sex Marriages." Submission of the Canadian Human Rights Commission to the House of Commons standing committee on justice and human rights, 29 April 2003.
76. Hurley, "Sexual orientation and legal rights," Current Issue Review, p. 16.
77. Halpern v. Canada (Attorney General), [2003] 65 O.R. (3d) 161 (Ont. CA.);
78. th) 577 (Que. C.A.).
79. Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698.
80. By this time, courts in eight provinces and one territory already permitted same-sex marriages in their individual jurisdictions. See M.C. Hurley, Sexual Orientation and Legal Rights: A Chronological Overview, revised ed. (Ottawa: Parliamentary Information and Research Service, Library of Parliament, 2005), p. 12 (PRB 04-13E).
81. Anne Smith, "The unique position of national human rights institutions: A mixed blessing?," Human Rights Quarterly 28, no. 4 (November 2006), pp. 904-46.
82. A.H. Young, "Keeping the courts at bay: The Canadian Human Rights Commission and its counterparts in Britain and Northern Ireland - Some comparative lessons," University of Toronto Law Journal 42 (Winter 1993), p. 65.
83. Lahey, Are We 'Persons' Yet?, p. 28.
84. Rayside, On the Fringe, p. 121.
85. Canadian Press/Leger Marketing, "Canadian Perceptions of Homosexuality." [news release], 22 June 2001 (Montreal: Leger Marketing, 2001). For further discussion of these changes in public opinion, see J. Scott Matthews, "The political foundations of support for same-sex marriage in Canada," Canadian Journal of Political Science 38, no. 4 (December 2005), pp. 841-66.