In August, Nelligan Law and the City of Ottawa are celebrating Capital Pride.
2SLGBTQ+ rights have come a long way in Canada. Our Family Law group has created a timeline that revisits key legal decisions and events that have contributed towards progression 2SLGBTQ + rights in our country. While progress has been made, it is still important to recognize that there is a large gap between legislated rights and having actual equality in society.
1950s & 1960s – State Surveillance of Homosexuals in Canada
During the 1950s and 1960s, the RCMP monitored the activities of private individuals suspected of being gay. The Directorate of Security and Intelligence had a unit referred to as A-3. It was dedicated to removing all homosexuals from government and law enforcement. The unit produced a map of Ottawa depicting the residences of suspected homosexuals and their gathering places.
During the same period, the Canadian civil service led an anti-homosexual campaign to purge gays and lesbians from the ranks of government and the military. Predicated on the premise that homosexuals possessed character weaknesses which posed a threat to national security, the “security” campaign led to the identification of thousands of suspected gay men and lesbian women. Members who admitted to being homosexual were discharged from the Canadian Armed Forces, sometimes dishonourably. The Canadian military continued its official policies of discrimination against homosexuals until 1992. Gay members of the military who served during this time remained closeted.
The state also funded now-debunked research into identifying homosexuals called the “fruit machine”. Funding for the “fruit machine” was ended in the 1960s but investigations into homosexuals continued, nonetheless. The RCMP collected files on thousands of suspected homosexuals. The RCMP also worked with the FBI, alerting the FBI when a suspected homosexual had crossed the border to the United States.
Everett Klippert was the last person incarcerated in Canada just for being gay. While being questioned about a suspected arson, Everett Klippert, a Northwest Territories mechanic acknowledged to police that he had consensual sex with men and would be unlikely to change. In 1967, Klippert was sent to prison indefinitely as a “dangerous sex offender”. This was regardless of his partners being consenting adults, and regardless of his cooperative and honest nature with the entire judicial process, and regardless of usual criminal protections against self-incrimination. His sentence was appealed to the Supreme Court of Canada that same year. In a controversial 3-2 decision reflecting systemic discrimination of the time, the Supreme Court made it the policy of Canada to imprison as dangerous offenders — potentially for life without appeal — anyone who had consensual sex with a same-sex partner. The Supreme Court called it preventive detention.
Tommy Douglas spoke in Parliament of the injustice of the decision. Justice Minister Pierre Trudeau proposed amendments to the Criminal Code which, among other things, would relax the laws against homosexuality.
Criminal Law Amendment Act
On December 21st 1968, Justice Minister Pierre Trudeau introduced the Criminal Law Amendment Act, 1968-69, to reform the Criminal Code, on broad-ranging social issues such as homosexuality, abortion and contraception.
In one of the better-known public “dialogues” between Parliament and the Supreme Court, Trudeau stated about his bill:
- “I feel that it has knocked down a lot of totems and overridden a lot of taboos and I feel that in that sense it is new. It’s bringing the laws of the land up to contemporary society I think. Take this thing on homosexuality. I think the view we take here is that there’s no place for the state in the bedrooms of the nation.”
May 14, Trudeau’s amendments pass into the Criminal Code, decriminalizing homosexuality in Canada. Prior to this, consensual sex between men had been punishable by life imprisonment.
Klippert released from prison
Despite the Criminal Code amendments passing into law in 1969, Everett Klippert is not released from prison until 1971.
Quebec Human Rights Code
In December, Quebec includes sexual orientation in its Human Rights Code, making it the first province in Canada to pass a gay civil rights law. The law makes it illegal to discriminate against gays in housing, public accommodation, and employment.
Immigration Act Amendments
In 1953, Canada’s Immigration Act had been amended to prevent homosexuals from entering the country. In 1978, the Act repealed the 1953 amendment barring homosexuals from entry.
Toronto bath house raids
On February 5th, 1981, more than 300 men are arrested following police raids at four gay bath houses in Toronto, the largest mass arrest since the War Measures Act was invoked during the October Crisis. The next night, about 3,000 people march in downtown Toronto to protest the arrests. This is considered Canada’s ‘Stonewall’.
Parliamentary Policy Research
The Parliamentary Committee on Equality Rights releases a report titled “Equality for All.” The committee writes that it is shocked by the high level of discriminatory treatment of homosexuals in Canada. The report discusses the harassment, violence, physical abuse, psychological oppression and hate propaganda that homosexuals live with. The committee recommends that the Canadian Human Rights Act be changed to make it illegal to discriminate based on sexual orientation.
University Instructor fired for merely being gay
Delwin Vriend, a lab instructor at King’s University College in Edmonton is fired from his job for being gay. The Alberta Human Rights Commission refuses to investigate the case because the Alberta Individual Rights Protection Act does not cover discrimination based on sexual orientation. He would eventually take his case to the Supreme Court in 1998, a decision which would help define the Charter of Rights and Freedoms
Haig and Birch v. Canada
In Haig and Birch v. Canada, Captain Joshua Birch launched a human rights complaint after being discharged from the Canadian Forces for disclosing he was gay. He successfully argued that the omission of sexual orientation from the Canadian Human Rights Act constituted discrimination under the equality rights guarantee set out in section 15 of the Canadian Charter of Rights and Freedoms. The Ontario Court of Appeal rules that the failure to include sexual orientation in the Canadian Human Rights Act is discriminatory.
Ban on homosexuals in the military lifted
As a result of the decision in Haig and Birch v. Canada, federal Justice Minister and Attorney General of Canada, Kim Campbell announced that Canada was lifting its ban on homosexuals in the Canadian Forces, allowing them to serve openly and live on-base with their partners.
Canada (AG) v. Mossop
This is the first decision of the Supreme Court of Canada to consider equality rights for gays.
In the Mossop case, the Supreme Court of Canada rules that the denial of bereavement leave to a gay partner is not discrimination based on family status defined in the Canadian Human Rights Act.
The case is significant as one of Justice L’Heureux-Dube’s most famous dissents where she proposes that the definition of “family” must evolve to reflect reality of non-traditional families.
Egan v. Canada
Jim Egan had been an activist since the late 1940s and took his case for his spouse, Jack Nesbit to receive OAS spousal allowance, to the Supreme Court.
Egan v. Canada stands today as a landmark Supreme Court case which established that sexual orientation constitutes a prohibited basis of discrimination under section 15 of the Canadian Charter of Rights and Freedoms.
Although Egan lost the case, all nine judges agreed that sexual orientation is a protected ground and that protection extends to partnerships of lesbians and gay men.
Child and Family Services Act of Ontario and same-sex couple adoption
An Ontario Court judge finds that the Child and Family Services Act of Ontario infringes Section 15 of the Charter by not allowing same-sex couples to bring a joint application for adoption. He rules that four lesbians have the right to adopt their partners’ children. Ontario becomes the first province to make it legal for same-sex couples to adopt. British Columbia, Alberta and Nova Scotia follow suit, also allowing adoption by same-sex couples.
Miron v Trudel
Miron v Trudel, under section 15 of the Canadian Charter of Rights and Freedoms where the Court found “marital status” was an analogous ground for discrimination (i.e., a characteristic which cannot legally be the basis for discrimination under section 15). The Court held that an insurance benefit provided only to married couples discriminated against common-law couples.
Sexual orientation added to Canadian Human Rights Act
On June 20th, 1996, Bill C-33 which adds “sexual orientation” to the Canadian Human Rights Act, received Royal Assent.
Vriend v. Alberta
The Supreme Court determined that a legislative omission can be the subject of a Charter violation. The case involved a dismissal of a teacher because of his sexual orientation and was an issue of great controversy during that period. He was prevented from making a complaint under the Alberta Individual Rights Protection Act because the legislation did not include sexual orientation as a prohibited ground of discrimination.
M v. H
In this landmark decision of the Supreme Court of Canada on the rights of same-sex couples to equal treatment, the Supreme Court rules that the Ontario Family Law Act’s definition of “spouse” as a person of the opposite sex is unconstitutional as was any provincial law that denies equal benefits to same-sex couples. Ontario is given six months to amend the act.
Little Sisters Book and Art Emporium v. Canada
Little Sisters launched a constitutional challenge over its treatment at the hands of Canada Customs, which had been delaying and hold shipments from the US. Little Sisters claimed Customs was purposefully targeting them. The Supreme Court agreed the actions by Canada Customs were targeting Little Sisters and Justice Ian Binnie stated “when Customs officials prohibit and thereby censor lawful gay and lesbian erotica, they are making a statement about gay and lesbian culture, and the statement was reasonably interpreted by the appellants as demeaning gay and lesbian values”.
Marc Hall v. Durham Catholic School Board
In Marc Hall v. Durham Catholic School Board, the Ontario Superior Court orders the Durham Catholic District School Board to allow Marc Hall, an openly gay student, to bring a same-sex date to the high school prom. Officials of Durham Catholic District School Board said permitting the date would send a message that the church supports his “homosexual lifestyle.” Hall went to the prom.
Halpern v. Canada
June 10, 2003 decision of the Court of Appeal for Ontario where the Court found that the common law definition of marriage, which defined marriage as between one man and one woman, violated section 15 of the Canadian Charter of Rights and Freedoms.
In the next two years following the decision, courts in seven of Canada’s other nine provinces and one of its three territories also legalized same-sex marriage in their jurisdictions before the Parliament of Canada passed the Civil Marriage Act in 2005.
M. M. v. J. H.
A lesbian couple files the first same-sex divorce petition in Canada. Lawyers for the couple are asking the Ontario Superior Court of Justice to grant the divorce and declare the definition of “spouse” under the Divorce Act unconstitutional. A judge grants the divorce in September 2004.
Civil Marriage Act given Royal Assent
On June 28th, 2005, The federal Civil Marriage Act, legalizing same-sex marriage across Canada, is given royal assent.
Political candidate calls for execution of all homosexuals
During an all-candidates debate held before students at Sudbury Secondary School in September 2008, independent candidate David Popescu was asked for his views on same-sex marriage. “I believe that homosexuals should be executed,” he responded. He repeated the comments in an interview with a Toronto radio station. Popescu was eventually charged and convicted with promoting hatred.
At his 2009 trial, Ontario Court Justice Guy Mahaffy ruled “has clothed his disgraceful attitude to this community of people (gays and lesbians) in a religious context and in my view should not be allowed.” Popescu was sentenced to 18 months of probation.
Child’s suicide prompts Ontario Anti-Bullying Act
Jamie Hubley, son of Ottawa City Councillor Allan Hubley commits suicide after years of being bullied by his classmates for being openly gay. The incident prompts the Legislative Assembly of Ontario to pass the Anti-Bullying Act which imposes stiffer penalties for bullying in schools, and which passes in 2012.
House of Commons passes Bill C-279
The House of Commons passes Bill C-279, a private member’s bill sponsored by Randall Garrison, which officially extends human rights protections to transgender and transsexual people in Canada.
Pardon for George Klippert
On February 28, 2016, CBC News reported that Prime Minister Justin Trudeau intended to recommend that a pardon under the authority of the Royal Prerogative of Mercy be granted posthumously to George Klippert, the last person in Canada to be imprisoned for homosexuality.
Amend CHRA and Criminal Code to include gender identity and expression
June 19 – Bill C-16 is passed and put it into immediate force. The law updated the Canadian Human Rights Act and the Criminal Code to include “gender identity and gender expression” as protected grounds from discrimination, hate publications and advocating genocide. The bill also added “gender identity and expression” to the list of aggravating factors in sentencing, where the accused commits a criminal offence against an individual because of those personal characteristics. C-16 represents the first time such a bill has been put forward by the governing party in the House of Commons.
Federal Apology for State Surveillance and Discrimination of LGBTQ2S
Prime Minister Justin Trudeau offers an apology to the LGBTQ2S community in the House of Commons and the reparations process begins.] Section 159 would be repealed. Errors from the Purge of the 1950s through the 1990s resulting in criminal records of individuals would be corrected by the destruction of such files. Civil servants and military personnel who lost their livelihoods from this discriminatory policy based on sexual orientation will share in a 110 million Canadian dollar settlement of a class action suit.
Criminal Code amendment to eliminate direct and indirect discrimination
June 21 – The Canadian Government repeals Section 159 of the Criminal Code, which prohibited anal intercourse except by a husband and a wife or two persons who are both 18 years or older, provided that the act was consensual and took place in private. The repeal of Section 159 eliminates the disparity in the age of consent for anal intercourse versus other sexual acts. The age of consent is now 16 for all sexual acts, eliminating the direct and indirect discrimination contained in old section 159.