IS HARPER SAYING GAYS AND LESBIANS HAVE NO HUMAN RIGHTS UNDER THE CHARTER? - Legal Experts say Charter Designed to Protect All

Toronto, June 11, 2004. Stephen Harper told reporters yesterday that “sexual orientation is not included in the Charter.” Section 15 of the Charter states:

“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.” (emphasis added)

“The Charter contains a general guarantee of equality,” said Laurie Arron, Political Coordinator for Canadians for Equal Marriage. “Is Harper saying that the Charter doesn’t apply to gays and lesbians? Is he saying that gays and lesbians have no human rights under the Charter?”

“The courts have recognized the general guarantee of equality applies to other groups not explicitly listed, such as non-citizens and unmarried couples,” said Grant Mitchell, a Winnipeg human rights lawyer. “Is Harper saying that non-citizens and unmarried couples have no human rights under the Charter?”

“Charter protection was designed to be open-ended, and the legal community is agreed on that,” said Jennifer Koshan, law professor at the University of Calgary. “Our Constitution is designed to last a long time, and to accommodate changes in society. That’s why the wording of the equality provision of the Charter is stated in two parts, first general protection and then a list of examples. For Mr. Harper to look at the list and say it doesn’t include sexual orientation is wilful blindness on his part.”

“The plain meaning of the equality section of the Charter is that every disadvantaged minority group is protected,” said Julie Lloyd, lawyer and lecturer at the University of Alberta’s Faculty of Law. “That has never been a contentious issue. It was not contentious when the Supreme Court recognized that sexual orientation is protected. The idea that the categories of protection would be closed was not even argued, and all nine judges agreed sexual orientation is protected.”

“The Charter is meant to protect all Canadians from government discrimination, that is clear,” said Brenda Cossman, Professor of Law at the University of Toronto, “Not only is restricting Charter protection to the enumerated grounds legally incorrect, it is a rather impoverished view of what the Charter is all about. The Court has recognized other analogous grounds of protection, like citizenship and marital status. The Charter is open to protecting any group that suffers from government discrimination.”

“Canadians want the Charter to give broad protection,” added Mr. Arron. “According to Mr. Harper, we should be stingy about who we protect. That’s an awfully narrow view, and it’s not what Canadians want. Canadians don’t want to take away protection from minority groups that may face discrimination now or in the future. Canadians want a society in which all persons enjoy equal recognition at law as human beings, equally capable and equally deserving of concern, respect and consideration.”

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For more info:
Jennifer Koshan, Law Professor, University of Calgary, 403-220-7329
Grant Mitchell, Winnipeg lawyer, 204-988-0352
Julie Lloyd, Edmonton lawyer and University of Alberta lecturer, 780-442-4417
Brenda Cossman, University of Toronto, 416-978-6658
Laurie Arron, Canadians for Equal Marriage, 416-928-1238 (o)
Cicely McWilliam, Canadians for Equal Marriage, 416-928-1238
John Fisher, Canadians for Equal Marriage, 613-321-9841