ae606@FreeNet.Carleton.CA (Victoria Edwards)
Gays, lesbians, bisexuals ...... ..... and the law
A BRIEF GUIDE TO THE WAY THE LAW IMPACTS ON THE LIVES OF GAYS, LESBIANS AND
BISEXUALS - THIS PAMPHLET IS NO SUBSTITUTE FOR PROFESSIONAL LEGAL ADVICE.
THIS PAMPHLET IS ONE OF A SERIES.
The laws of consent
The age of consent laws in Canada are rather complex. The basic age of
consent for all sexual acts (except anal intercourse) between partners
of any sexual orientation is 14. This consent only extends to partners
who are not more than 2 years apart in age, and who are not members of
the same immediate family. The two year age differential does not
exist when partners are both over the age of 16, however, the laws
concerning incest (sexual relations between members of the same
immediate family are binding on everyone, regardless of sexual
orientation). Anal intercourse (sodomy) is not legal between any
partners if one or both are under the age of 18. All consent laws
refer to sexual acts in private where no more than two persons are
present. Sexual acts in public places are illegal, though a gay or
lesbian couple kissing in a public park are more likely to be
reprimanded or even arrested than a straight couple kissing in the
same place.
A great deal of propaganda distributed by right-wing religious groups
claims that recent law reforms have made gays, lesbians and bisexuals
privileged individuals. In fact, the reforms of the criminal law since
1972 have attempted to have the same laws made equally binding on all
people regardless of sexual orientation. In this regard Canada is one
of the more enlightened countries around. Put simply, sexual assault,
rape, incest and sodomy (up to the age of 18) are all illegal
regardless of the sexual orientation of the individuals involved. This
is equality, not special status.
Many gay men, lesbians and bisexuals are the target of violence.
Whether this is the result of a drunken brawl, or the concerted
behaviour of the flourishing hate-groups in our country, such attacks
are assault. Remember, being gay / lesbian / bisexual is not a crime,
assault is! The police exist to protect everyone from crime, and while
most police officers and police departments can be expected to behave
professionally, and enforce the law no matter what their own personal
beliefs may be, some do not. There are established bodies to support
and protect witness to and victims of violence, and there are bodies
who will investigate complaints against the police. Remember though,
neither the police, nor any of these bodies can do anything if you are
assaulted and do not report the assault.
Human Rights Legislation
At present (1995) provincial legislation protecting the rights of
gays, lesbians and bisexuals with respect to access to services,
housing and employment is inforce in all Canadian provinces except
Newfoundland, Prince Edward Island and Alberta. No such legislation
exists in the Northwest Territories. Similarly, no Federal legislation
covers this issue, though the Ontario Supreme court has ruled that the
clause in the Charter of Rights and Freedoms (1982) guaranteeing equal
treatment on the basis of sex should be interpreted as including
sexual orientation . Currently several organization, co-ordinated
through EGALE (Equality for Gays And Lesbians Everywhere) are lobbying
Parliament to have sexual orientation added to the Charter as a
proscribed ground for discrimination.
What the provincial Human Rights Acts mean, is
that it is illegal to discriminate in the provision of services
(private or public), housing (rented, leased or private) or employment
on the basis of sexual orientation. Your landlord cannot evict you
because you are a lesbian, your employer cannot dismiss you because
you are gay, the province cannot refuse to educate you because you are
bisexual.
Human Rights Commissions exist to monitor compliance with this
legislation, and provide services such as legal advice, conciliation
mechanisms, and if necessary, assistance in prosecuting cases. Once
again, if you are discriminated against, no legislation, or Human
Rights Commission can help if you are not prepared to fight the matter
or register a complaint.
Such legislation does not prevent discrimination, any more than laws
against theft and murder prevent such crimes, but they do provide
means of legal redress. Such laws on the statute book also send a
powerful message to the public that discriminatory practices are not
acceptable.
Pornography
It is not the purpose of this pamphlet, to make any general
statements about whether or not pornography should or should not exist
or be available. It is widely available, and many gays and lesbians
buy it and own it in a variety of forms.
The criminal code of Canada states that any pornographic material
depicting rape, violent assault, sexual relations with animals, sexual
acts between persons under the age of 18, or between persons under 18
and persons over 18, are illegal. This extends to printed word, art
work, photographic representation, film and video. Amendments to the
criminal code in 1992 also added portrayals of persons under the age
of 18 by anyone to the list of illegalities (ostensibly to deal with
the distribution of child pornography). This most recent legislation
is very ambiguously worded and will require test cases to add
definition to the law. Officially it is illegal to buy, sell, import
or own such material.
Obscenity was once defined in the tradition of English Common Law, as
material likely to deprave and corrupt. This definition was changed in
1992 to read material which offends against community standards . Like
the law amendments on child-pornography, this is very ambiguously
defined, and will require test cases to decide just what community
standards are.
Canada Customs and their operations are covered by regulations in
addition to the Criminal Code, and these are a Federal responsibility
in which individual officers have considerable discretion. Currently,
and over the last 15 years, Canada Customs officers have been involved
in a number of high-profile cases where books imported from the USA
and Europe have been seized and impounded when destined for
individuals, and bookstores (especially gay and lesbian community
bookshops). Material seized is often freely avaiable through high-
street bookstores, and imported by such businesses on a regular basis.
Material most likely to be stopped and impounded is anything dealing
with or portraying anal sex, sadomasochism or lesbian sex. Any change
in the regulations bringing Canada Customs into line with the Criminal
Code will likely depend on the outcome of several court cases
currently moving very slowly through the system.
Immigration Law
This is a Federal matter, and one currently the subject of concerted
lobbying of Parliament by such organizations as EGALE and LGIT
(Lesbian and Gay Immigration Task Force). Should you become involved
with a partner who is not a Canadian citizen or landed immigrant on
paper, if this partner does not qualify as an independent immigrant is
his or her own right, there is no recourse. In reality, Immigration
Canada has issued guide-lines to immigration officers both in Canada
and overseas granting individual officers considerable rights of
waiver and discretion in such cases. Applications for landed immigrant
status are more likely to proceed rapidly when made through a
consulate outside of Canada - this is true for all such applications.
If your partner qualifies as an independent immigrant (i.e. has
sufficient points under the assessment procedure), this is probably
the best route to follow. Should this not be the case, an application
under what is know as Hardship and Compassionate grounds is possible.
This H&C application can be made within Canada or through a consulate
outside the country. Anecdotal evidence suggests applications under
H&C through consulates in the USA and London (UK) are more likely to
succeed than those through domestic immigration offices. Bear in mind,
H&C applications fall into the area of an individual officer s
discretionary powers, and if such an application fails (as with all
immigration applications) there is no appeal or refund of the
substantial processing fees.
Before starting immigration procedures for your partner, or before
your partner starts the process, it would be wise to consult an
immigration lawyer, or immigration counsellor (the latter course of
action being considerably cheaper, especially as immigration cases do
not qualify for legal aid in NB). It would also be advisable to
contact LGIT, especially to find out which US or overseas consulates
have been sympathetic. LGIT does not have the resources to take on
individual cases, but their newsletters provide updates on the regular
changes in regulations, fee schedules, and the location of consulates
where an application is most likely to succeeded. This labyrinth could
be simplified if Federal law was amended to recognize gay and lesbian
relationships, and the Charter amended to include sexual orientation
as prohibited grounds for discrimination.
Lesbian and Gay relationships in law
Put simply neither the Federal government, provincial legislatures or
municipal authorities grant any legal recognition to gay and lesbian
partnerships, no matter how longstanding. Some churches, such as the
MCC, and more liberal congregations elsewhere will bless or offer
forms of marriage for gays and lesbians, but these have no validity in
law.
That said a number of employers, both private and public, now make
medical benefits, insurance and pension rights avaiable to the
domestic partners of gay men and lesbians, in the same way as these
are extended to couples in common-law marriages. The provincial
governemt of NB is one such public employer, though the matter of
pension rights is still under consideration for practical reasons.
Pension schemes in Canada that are underwritten by the Federal
pensions scheme have to be registered with the Federal Pensions
Commission, and their regulations specifically state that in pension
matters a spouse shall be a member of the opposite sex. Currently,
there is much lobbying of Parliament to change this regulation, amnd a
number of court cases are pending that may force the change (the
courts have traditionally been more inovative in interpreting the
Charter of Rights and Freedoms with respect to such regulations).
Resources & organizations
* EGALE - Equality for Gays And Lesbians Everywhere, can be
contacted at:
* LEGIT - Lesbian and Gay Immigration Taskforce can be contacted at:
P. O. Box 384, Station A, 757. West Hastings Street, Vancouver,
BC, V6C 2N2
On Our Own Terms: a Practical Guide for Lesbian and Gay Relationships,
Laurie Bell, 1991. Coalition for Gay and Lesbian Rights in Ontario,
Toronto.
_________________________________________________________________
This pamphlet is one of a series produced by Fredericton
Lesbians and Gays - for more information, or copies of other pamphlets
in this series, contact FLAG, P. O. Box 1556, Station A, Fredericton,
NB, E3B 5G2
--
Freedom exists wherever freedom is thought about, talked about, sung about.
Freedom is the essence of Oppressed people. - Tala Sanning (Oglala Sioux)
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