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- Xref: sparky can.politics:9893 soc.culture.canada:8743 can.general:5428
- Path: sparky!uunet!cis.ohio-state.edu!rutgers!utcsri!cs.ubc.ca!unixg.ubc.ca!mathew
- From: mathew@unixg.ubc.ca (Mathew B Englander)
- Newsgroups: can.politics,soc.culture.canada,can.general
- Subject: Gay rights and the Charter
- Message-ID: <1en1rlINNb6b@iskut.ucs.ubc.ca>
- Date: 22 Nov 92 04:21:09 GMT
- References: <BxztoA.EFL.1@cs.cmu.edu> <1992Nov20.172940.2038@mdivax1.uucp>
- Organization: University of British Columbia, Vancouver, B.C., Canada
- Lines: 85
- NNTP-Posting-Host: unixg.ubc.ca
-
- robinson@mdd.comm.mot.com (Jim Robinson) writes:
- >
- >The Charter of Rights and Freedoms does not presently explicitly protect
- >against discriminatory treatment on the basis of sexual orientation.
- >However, a court (I believe it was an Ontario court) recently made a ruling
- >along the lines that such discrimination violated Charter equality rights.
- >And, I believe, the federal government has said that it will accept this
- >ruling and apply it nationally. [I am a bit fuzzy on the ruling so if
- >anyone has better info, please jump in]
- >
- It's very complicated, but I'll try to summarize the facts, as well
- as my opinions, in a subsequent post. The reason it's complicated
- is that the case, Haig v. Canada, involved both the Charter and the
- Canadian Human Rights Act, which are often confused by laypersons.
-
- >Personally, I very much believe that sexual orientation *should* be
- >explicitly Charter protected. However, I get concerned when the courts
- >seek to extend rights that were not obviously intended. In my view, the
- >role of the courts should be to interpret the law (and the constitution),
- >not write it.
-
- I agree with you here. However, a close reading of section 15(1) of
- the Charter (which I'll post) suggests that gay equality rights *were*
- obviously intended to be protected by the Charter, even though not
- explicitly mentioned. Section 15(1), in brief, says that every indi-
- vidual is equal in the eyes of the law, and then goes on to give
- *examples* of groups that governments may not discriminate against.
-
- > Just because I agree with the result of this particular piece
- >of apparent judicial activism does not mean that I will agree with the
- >next; and short of resorting to the infamous notwithstanding clause, there
- >is nothing a government can do about a ruling that seems to exceed the
- >Charter's mandate.
-
- Yes, I wish everybody thought like you. Unfortunately, when it comes
- to the Supreme Court of Canada interpreting the Charter, or the U.S.
- Supreme Court interpreting the Bill of Rights, many people seem to take
- the approach that the means is justified by the end.
-
- >I am not a lawyer (although we all were in October :-), and it is very
- >possible that my interpretation of these events is not correct, so if
- >anyone wishes to correct the above, feel free.
-
- I'm not a lawyer either; just a law student. My understanding of the
- situation is pretty good, though. In the posting that will appear
- soon after this one, I'll set out the relevant legislative sections,
- and summaries of the Ontario court decision.
-
- Mathew Englander.
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- (Sorry; I had to put in those extra blank lines to get my news program to
- post this.)
-