Legal and equality rights

Participants at the 2016 Vancouver Pride parade

The Constitution of Canada does not explicitly grant or deny any right to LGBTQ+ people, however the Supreme Court of Canada has held that the open-ended wording of section 15 of the Charter protects LGBTQ+ people from discrimination based on sexual orientation. Subsection 15(1) reads:

15(1) 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.

Section 15(1) was written so as to protect against discrimination generally, with the enumerated grounds of prohibited discrimination, such race and sex, being examples of prohibited grounds, rather than a closed list. In its landmark ruling in 1995 in the case of Egan v. Canada, the Supreme Court of Canada declared that sexual orientation was included within the bounds of section 15, as an analogous ground. Individuals were therefore granted equal protection against discrimination on the basis of that ground. The concepts of sex and physical disability in s. 15 have been interpreted to include transsexuality and HIV/STDs (see discussion below).^[19] As articulated, and reaffirmed in 2008, "the promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration".^[20]

Section 15 applies to all laws and government institutions in Canada, including law enforcement authorities, but the Charter does not grant rights against the private sector. Instead, a complaint against a business would be brought under the applicable federal or provincial human rights statute. For example, a discrimination complaint against a restaurant would generally fall under provincial anti-discrimination legislation and not the Charter. However, the Charter is part of the Constitution and therefore is part of the supreme law of the land. Courts must interpret statutes consistently with the Charter, including human rights laws.^[21] In private litigation, including human rights cases, "courts should, from time to time, re-evaluate the consistency of the common law with evolving societal expectations through the lens of Charter values".^[22] Equality rights under the Charter therefore will provide guidance for the interpretation of equality rights set out in human rights laws.

In its 1998 decision in Vriend v Alberta, the Supreme Court found the failure of the provincial legislature to include sexual orientation as a prohibited ground of discrimination in its human rights law was itself a violation of section 15 Charter rights. As of 2017, all provinces, territories, and the federal government explicitly include sexual orientation and gender identity as prohibited grounds of discrimination in their human rights acts.

Reasonable limits

The entire Charter is also subject to a general limit in section 1 that allows "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The Oakes Test sets out the Supreme Court of Canada's interpretation of this exception. This analysis may consider conflicting Charter rights. For example, the right to equality based on sexual orientation under section 15 may be limited by the freedom of religion under section 2, and vice versa. It may also be limited by the right to denominational (religious) schools under Section 93 of the Constitution.

Enforcement mechanism

In the last decades, the rights of LGBTQ+ Canadians were largely enhanced due to several court decisions decided under Section 15 of the Canadian Charter of Rights and Freedoms (French: Charte canadienne des droits et libertés), which was included in the Constitution of Canada in 1982, and came into force in 1985.

Some of the cases were funded under the Federal Government's Court Challenges Program,^[23] which in 1985 was expanded to fund test cases challenging federal legislation in relation to the equality rights guaranteed by the Charter. There were also funding to challenge provincial laws under a variety of programs, but its availability had differed considerably from province to province.^[24]

Notwithstanding

In addition, section 15 is subject to the "notwithstanding clause" of the Charter that allows the federal Parliament and the provincial Legislatures to declare that a law is exempt from certain sections of the Charter for up to five years, which exemption may be renewed any number of times. In 2000, Alberta amended its Marriage Act to define marriage as being between a man and a woman.^[25] The law invoked the notwithstanding clause of the Charter, but the amendment was nevertheless invalid since the capacity to marry is a matter of exclusive federal jurisdiction according to the Constitution.^[26] The notwithstanding clause can only be used to make exceptions to the Charter; it cannot change the federal division of powers. In any case, the five-year exemption period expired in 2005.

The notwithstanding clause has never been used by the federal Parliament. It is generally believed that such a use would constitute a politically embarrassing admission that the law in question should violate human rights.

However, the notwithstanding clause is no gateway for a government to exercise unjust or oppressive uses of political power. Section 33 of the Charter, as the entire Charter, is also subject to section 1, and, as it applies only to sections 2 and 7 to 15, is of no force or effect for overriding section 1.

Division of jurisdiction between federal government and provinces

In addition to the Charter, another significant constitutional factor is the division of authority between the federal government and the provincial governments. Under the Constitution of Canada, some matters are allocated to the exclusive jurisdiction of the federal Parliament, while other matters are allocated to the exclusive jurisdiction of the provincial legislatures. Many of the issues which have direct impact on LGBT rights are under provincial jurisdiction.

Major subjects under federal jurisdiction are the criminal law power, and marriage and divorce. The criminal law power can deal with matters such as hate speech and sentence modifiers for bias motives. In the past, it has been used to criminalise LBGT conduct. The federal jurisdiction over marriage and divorce gives Parliament the power to determine which parties can marry, and also the rules governing divorces, also LGBT issues of interest.

Subjects under provincial jurisdiction include matters such as spousal support for unmarried couples, adoption, filiation of children, vital statistics (including identity documents such as birth certificates), child custody and support, education, housing, health care, pensions and social security. As well, most workplaces fall under provincial jurisdiction.^[27]

Human rights law follows this allocation of subjects.^[28] The Canadian Human Rights Act is of relatively limited application, applying mainly to the federal government and federally regulated workplaces, such as banks, aviation, and inter-provincial transportation. Provincial human rights laws apply to a much broader range of subjects. Provincial human rights laws apply to most schools, rental housing and health care, and workplaces.

Overview

Same-sex sexual activity has been legal in Canada since 1969. Since June 2019, the general age of consent for all sexual activities has been 16. However, where there is a relationship of trust, authority or dependency, the age of consent is 18. The relationship must not be exploitative of the young person. Any form of sexual abuse and exploitation is seriously proscribed by law in respect of any person, regardless of age. Age of consent laws also provide "close in age" exceptions for youngsters aged 12 through 15. Those exceptions are also subject to the same prohibitions where there is a position of trust or an exploitative relationship.^[29]

History of decriminalization

During the British North American era, same-sex sexual activity between men was a capital crime.^[16] The death penalty was eventually repealed and a broader law involving gross indecency between men was often enforced in the late 19th century.^[17]

In June 1969, Parliament passed the Criminal Law Amendment Act, 1968–69, which decriminalized sexual activity between men, with an higher age of consent, set at 21 years.^[30] In 1987, the age of consent for homosexual practices was set at 14, which was the age of consent for heterosexual sex.^[31][32][33] However, section 159 of the Criminal Code continued to make it a criminal offence to engage in anal intercourse with a woman or with a man if one of the parties was under 18 (with an exception if the act was committed by a married couple) or if more than two persons were present in the room where it took place.^[32][33]

After the enactment of the Charter, courts in Ontario,^[34] Quebec,^[35] British Columbia,^[36] Nova Scotia,^[37] and Alberta^[38] each independently declared section 159 to be unconstitutional as a violation of the equality provision of the Charter. Since the early 2000's, no conviction for private and consensual anal sex appears to have taken place; in more recent times, some individuals were charged with the offence, but ultimately declared not guilty.

On November 15, 2016, the Liberal Government introduced legislation to repeal section 159 of the Criminal Code. The bill, C-32, would have set the age of consent for anal intercourse to 16, which has been the age of consent for all other types of sexual activities since 2016.^[39] The bill was later incorporated into a new bill, C-75, which was tabled in late March 2018. Liberal MP Randy Boissonnault, a special advisor to the prime minister on LGBTQ2 issues, stated on behalf of the Government: "We heard from the community that section 159 is a piece of archaic legislation that has continued to affect young men, so it's important to get this debated and passed through the house."^[40] On June 21, 2019, the bill received royal assent and was enacted as law.^[2]

Apology to LGBTQ+ people

On November 28, 2017, Prime Minister Justin Trudeau issued a formal apology in Parliament to members of the LGBTQ+ community:^[41]

It is with shame and sorrow and deep regret for the things we have done that I stand here today and say: We were wrong. We apologize. I am sorry. We are sorry... To members of the LGBTQ+ communities, young and old, here in Canada and around the world: You are loved. And we support you. To the trailblazers who have lived and struggled, and to those who have fought so hard to get us to this place: thank you for your courage, and thank you for lending your voices. I hope you look back on all you have done with pride. It is because of your courage that we're here today, together, and reminding ourselves that we can, and must, do better. For the oppression of the lesbian, gay, bisexual, transgender, queer, and two-spirit communities, we apologize. On behalf of the government, Parliament, and the people of Canada: We were wrong. We are sorry. And we will never let this happen again.

— Prime Minister Justin Trudeau, 28 November 2017

On June 21, 2018, the Governor General granted royal assent to the Expungement of Historically Unjust Convictions Act (French: Loi sur la radiation de condamnations constituant des injustices historiques).^[42][43] The Act allows a person who was convicted of certain homosexual acts prior to their being lawful in 1969, or later on, of anal intercourse under the now repealed section 159 of the Criminal Code, to have the RCMP, and federal departments or agencies, "destroy or remove any judicial record of the conviction". The Act also requires that any provincial or municipal police force, or courts, which were involved in such convictions to be notified of the expungement order.

The Parole Board of Canada has stated that an expungement is different from a record suspension or pardon, which is for those who were duly convicted of a crime.

With expungement, the Government recognizes that those whose record of conviction constitutes a historical injustice should not be viewed as "former offenders." Their conviction was for an act that should never have been a crime and had the conviction occurred today, it would likely be inconsistent with the Canadian Charter of Rights and Freedoms. If an application for expungement is approved, federal records of that conviction will be destroyed or removed. Unlike a record suspension/pardon, expungement is also available to those both living and deceased.^[44]

One commentator stated that while a pardon is about the Queen forgiving someone for doing something wrong, an expungement means: "The Queen did something wrong. Will you forgive her?"^[45]

Police chiefs of Canada apology

In December 2020, Police chiefs of Canada made a formal apology - for the decades of oppression and opposition towards homosexuality and LGBT rights within the 1960s through to today across Canada.^[46]

We felt on the International Day of Human Rights this year was the right opportunity for us to make the apology, to reconcile our past, and to begin the healing process moving forward. On behalf of the Canadian Association of Chiefs of Police, I want to sincerely apologize for the harm we caused by not fully supporting Two-spirit, Lesbian, Gay, Bisexual, Transgender, and Queer Communities. We now have a better understanding of the impact that specific laws, policies and decisions had on the community and how we contributed to institutional bias, intolerance, and the violation of human rights. We acknowledge the pain our actions have caused, the personal suffering, shame and trauma our public positions contributed to, and the deep distrust and divide that was created by the positions we took. We take responsibility for our past wrongdoings and, on behalf of the Canadian Association of Chiefs of Police, I am sorry.^[47]

— Bryan Larkin, president of the Canadian Association of Chiefs of Police, 10 December 2020

It is critical for all Canadian police services to show support to Two-Spirit, Lesbian, Gay, Bisexual, Trans, Transgender, and Queer (2SLGBTQ+) members within communities and organizations across Canada. We must stand together against homophobia, transphobia, and any other kind of marginalization, shaming, disrespect or hate. To ensure the national strategic priority would be translated into tangible and practical actions, the CACP created the Equity, Diversity and Inclusion Committee with a mandate to support efforts to create and enhance police practices that promote fairness, equity and inclusion through the identification, mitigation and elimination of the impact of implicit bias and discrimination in practices and policies that may support systemic barriers, and to promote the advancement of diversity within policing institutions. It is essential for police organizations to recognize the impact of their words and actions. While we have improved to better practice and uphold principles of equity, diversity and human rights, there is still much work to be done and the CACP is working hard to support police organizations across the country in their efforts to champion the systemic changes that need to be made to create an inclusive and equitable society for all.^[48]

— Deputy Chief Roger Wilkie & Suelyn Knight, Co-chairs of the CACP Equity, Diversity and Inclusion Committee, 10 December 2020

Same-sex marriage

Same-sex marriage in Canada
BC AB SK MB ON QC NB PE NS NL YT NT NU
Legal
Reference Re Same-Sex Marriage Halpern v Canada (AG) Civil Marriage Act
Parliament
38th House · 38th Senate 39th House · 39th Senate
Same-sex marriage by province
Related
Civil unions in Quebec Adult interdependent relationship in Alberta Domestic partnership in Nova Scotia Common-law relationships in Manitoba

Federal government response

"March of Hearts" rally for same-sex marriage in Canada on Parliament Hill in Ottawa, March 6, 2004

The Federal Government announced in the summer of 2003 that it would not appeal the decisions, and would draft legislation to allow same-sex marriages across the country. The bill was put before the Supreme Court of Canada to ensure that it would withstand a Charter challenge by those who oppose same-sex marriage. In December 2004, the Supreme Court declared the proposed definition of "marriage" as being consistent with respect to all matters referred to in the Charter, and as falling within the exclusive legislative authority of the Parliament of Canada.^[26]

Parliament passed the bill on July 20, 2005, making Canada the fourth country to legalize same-sex marriage nationwide, and the first to do so without a residency requirement.^[55]

Adoption

The first province to allow adoption of children by same-sex couples in Canada was British Columbia in 1996.^[57] Since then, adoption by same-sex couples has been legalized in Ontario (1999),^[58] Nova Scotia (2001),^[59] Saskatchewan (2001),^[49] Newfoundland and Labrador (2002),^[60] Quebec (2002),^[51] Manitoba (2002),^[61] the Northwest Territories (2002)^[62][63] and Yukon (2003).^[64] In Alberta, stepchild adoption was legalized in 1999.^[65][66][67] Eight years later, in 2007, joint adoption became legal in Alberta.^[68] New Brunswick legalized joint adoption in 2008,^[65][69] while Prince Edward Island did so in 2009.^[70] Nunavut legalized adoption by same-sex couples in 2011, and thus became the last province or territory in Canada to do so.^[71] Three provinces (British Columbia, Ontario, and Saskatchewan) will grant parental status to three or more intentional parents allowing for a wider range of queer and trans families. These parents may be in addition or in place of the birth parent. However, some find the "law operated within some strong normative constraints."^[72]

Enforcement mechanism

The Federal Government and every province and territory in Canada have enacted human rights acts that prohibit discrimination and harassment on several grounds (e.g. race, sex, gender identity or expression, marital status, religion, disability, age and sexual orientation) in private and public sector employment, housing, public services and publicity. Some acts also apply to additional activities. These acts are quasi-constitutional laws that override ordinary laws as well as regulations, contracts and collective agreements.^[73] They stand by the rule that every person has the right to the equal benefit of the law. They are typically enforced by human rights commissions and tribunals through a complaint investigation, conciliation and arbitration process that is slow, but free, and includes protection against retaliation. A lawyer is not required.

Anti-discrimination definitions

Sexual orientation is not defined in any human rights act, but is widely interpreted as meaning heterosexuality, homosexuality and bisexuality. It does not include transgender people.^[74] The Federal Court of Canada has stated that sexual orientation "is a precise legal concept that deals specifically with an individual's preference in terms of gender" in sexual relationships, and is not vague or overly broad.^[75]

As of 2017, all human rights acts include "gender expression" and/or "gender identity" as prohibited grounds for discrimination. Previously, human rights tribunals had interpreted their human rights acts as including gender identity and gender expression under the category of "sex" as a prohibited ground for discrimination.^[76][77][78]

The Ontario Human Rights Commission has adopted the following definition:

Sexual orientation is more than simply a 'status' that an individual possesses; it is an immutable personal characteristic that forms part of an individual's core identity. Sexual orientation encompasses the range of human sexuality from gay and lesbian to bisexual and heterosexual orientations.^[79]

And defines gender identity and gender expression as follows:

Gender identity is each person's internal and individual experience of gender. It is their sense of being a woman, a man, both, neither, or anywhere along the gender spectrum. A person's gender identity may be the same as or different from their birth-assigned sex. Gender identity is fundamentally different from a person's sexual orientation. Gender expression is how a person publicly presents their gender. This can include behaviour and outward appearance such as dress, hair, make-up, body language and voice. A person's chosen name and pronoun(s) are also common ways of expressing gender.^[78]

Similar definitions exist in other provinces' Human rights commissions, for example, Quebec's Commission defines sexual orientation as the emotional or sexual attraction to someone, and, as a personal characteristic, as being permanent or difficult to change.^[80]

All human rights laws in Canada also explicitly prohibit discrimination based on disability, which has been interpreted to include AIDS, ARC and being HIV-positive, and membership in a high-risk group for HIV infection.^[19]

Federal law

On June 20, 1996, the Canadian Human Rights Act (CHRA; French: Loi canadienne sur les droits de la personne) was amended to include sexual orientation as a protected ground. The CHRA guarantees the right to equality, equal opportunity, fair treatment and an environment free from discrimination in employment and the provision of goods, services, facilities or accommodation within federal jurisdiction, such as federal departments and agencies, the Canadian Armed Force, banks, radio and television stations, airlines, and interprovincial transportation facilities.

Attempts to add "gender identity and expression" as protected grounds began when NDP MP Bill Siksay introduced a private member's bill in the House of Commons in 2005. When it failed to pass before Parliament was dissolved, he reintroduced the bill in 2006 and again in 2009, with additional provisions to add gender identity and expression to the hate crimes provisions of the Criminal Code.^[81] In February 2011, it passed third reading in the House of Commons with support from all parties, but was not considered in the Senate before Parliament was dissolved for the 41st Canadian federal election. Similar bills were introduced in the next Parliament, and Randall Garrison's bill was passed in the House of Commons, but it died on the Senate order paper when the 2015 federal election was called.^[82]

In May 2016, the government introduced An Act to amend the Canadian Human Rights Act and the Criminal Code, to add "gender identity or expression" in the Canadian Human Rights Act and the hate crimes provisions of the Criminal Code.^[83] In June 2017, the Canadian Parliament passed the bill and it received royal assent a week later. The law went into effect immediately.^[84][85][86]

Provincial and territorial laws

In 1977, the Quebec Charter of Human Rights and Freedoms, which is both a charter of rights and a human and youth rights act, was amended to prohibit discrimination based on sexual orientation, and later harassment, in 1982. Thus, the province of Quebec became the first jurisdiction in the world larger than a city or county to prohibit sexual orientation discrimination, and harassment (including but not limited to mockery, insult, bullying, and intimidation at school, or at work), in the private and public sectors. The law was later amended to include gender identity and gender expression in 2016.^[87] Since 2008, Quebec's Ministry of Justice has specifically been assigned for the fight against homophobia, so as to perform full social acceptance among and within Quebec's population. "The mandate of the Bureau de lutte contre l'homophobie is to oversee the implementation, monitoring and assessment of the Government Action Plan against Homophobia," which "promotes respect for the rights of sexual minority members," and sets down "the creation of safe, inclusive environments," as one of its five priorities.^[88][89]

In 1984, in Manitoba, LGBT activists pushed for inclusion of protection from discrimination on the grounds of sexual orientation with tactics including a 59-day hunger strike by Richard North.^[90] In 1987, Manitoba passed the Human Rights Code which included protections from discrimination based on sexual orientation.^[91]

In 1998, the Supreme Court ruled in Vriend v. Alberta that the exclusion of sexual orientation from human rights acts was a violation of section 15(1) of the Charter of Rights and Freedoms. Sexual orientation was thus protected by law under every jurisdiction in Canada. In 2009, Alberta became the last jurisdiction in Canada to add "sexual orientation" to its human rights code.

Since June 2017, all provincial and territorial human rights legislation explicitly prohibits discrimination based on gender identity, and some also explicitly include gender expression.^[92]

LGBT discrimination protections table

Activities where equality guaranteed

Accordingly, discrimination, including harassment, based on real or perceived sexual orientation, gender identity, or HIV/AIDS status is prohibited throughout Canada in private and public sector employment, housing, services provided to the public and publicity. All aspects of employment are covered, including benefits for spouses and long-term partners. Examples of services include credit, insurance, government programs, hotels and schools open to the public. Schools open to the public are liable for anti-gay name-calling and bullying by students or staff.^[130] LGBT Canadians have been allowed to serve in the military since the Douglas case was settled in 1992.^[131]

Prohibited discrimination occurs not only when someone is treated less favourably or is harassed based on a prohibited ground, but also when a uniform policy or practice has a perhaps unintended disproportionately adverse effect based on the ground. This is called "adverse effect discrimination."^[132] For example, it might in theory be discriminatory for schools open to the public to require parental consent for student participation in all school clubs, assuming that students are less likely to ask for or get permission to participate in gay–straight alliance clubs.

Exceptions

Human rights acts have no exceptions specifically for sexual orientation or gender identity, however, human rights acts typically include an exception for "bona fide requirements" or qualifications that applies to most grounds (e.g. sex, sexual orientation, disability), but only when the stringent requirements of the Meiorin Test are met.

Since human rights acts are quasi-constitutional laws, it is not possible for job applicants or unions, for example, to sign away equality rights.^[73] However, other laws may explicitly say that they apply notwithstanding a human rights act. Furthermore, some collective agreements include broad non-discrimination provisions that actually expand upon the rights listed in human rights acts.

Schools and other educational institutions

Some schools have gay–straight alliances or similar groups to counter homophobia and bullying and provide support for LGBT students in school.

The rights of LGBT students and staff in an educational institution vary considerably depending on whether the institution is religious and/or open to the public, since human rights acts only partially prohibit discrimination against pupils of private schools and the Charter only partly prohibits discrimination by churches, associations and businesses, while section 2 of the Charter protects freedom of religion and section 93 of the Constitution recognizes the right to denominational schools in some provinces.

The curriculum of public schools, particularly in British Columbia, are now being amended to incorporate LGBT topics. In reality, implementation of curriculum varies from school division to school division and often from teacher to teacher.

Religious educational institutions may in many cases discriminate based on sexual orientation against students and staff according to religious doctrine. Nevertheless, if they rent facilities to the general public on a commercial basis without regard to their religion, they may not refuse to rent them to LGBT groups.^[133] Controversially, the Canadian Supreme Court ruled in favour of denying accreditation to a religious university in 2018, due to its policies banning students who have had gay sex or sex outside of marriage.^[134]

However, most educational institutions, including privately owned schools open to the general public, are public services. They are subject to human rights acts and are strictly required to not discriminate against staff or students based on all the prohibited grounds, including sexual orientation, HIV/AIDS (and gender identity, see Grounds of prohibited discrimination above). They are strictly liable for harassment, name-calling and bullying of students and staff by staff on these grounds. In addition, as a result of the Jubran decision,^[130] they are liable for most such behaviour by students. They may be liable for anti-gay bullying even if the victim is not gay, nor believed to be (e.g. when a bully knowingly makes a false claim that a girl is a lesbian so that she will be ostracized or bullied by others or pressured to have sex with a boy to prove otherwise).

Furthermore, it may not be enough for schools to progressively discipline bullies when this is ineffective. Schools are responsible for providing an educational environment that is free from discriminatory harassment, and this may require them to provide "resources to adopt a broader, educative approach to deal with the difficult issues of harassment, homophobia and discrimination."^[130]

Public education governance bodies may place limits on the freedom of expression and the freedom of religion rights of teachers and school counsellors with respect to statements they may make regarding LGBT issues, both on and off the job. Teachers and school counsellors are considered to hold positions of trust and influence over young people and are required to ensure that their public statements do not impair public confidence in the school system or create an unwelcoming or intolerant school environment.^{[135][136][137]}

In 2012, Ontario passed the Accepting Schools Act, which was enacted after growing concern regarding bullying behaviours and several tragic suicides of bullied students. The legislation is intended to identity and prevent bullying, which includes LGBT students, and provide resources and support for educators and students as they deal with bullying incidents.^[138][139] Under the act, bullying is defined as repeated and aggressive behaviour by a pupil where, 1) the behaviour is intended by the pupil to cause, or the pupil ought to know that the behaviour would be likely to cause, harm, fear or distress to another individual, including psychological harm or harm to the individual's reputation and 2) the behaviour occurs in a context where there is a real or perceived power imbalance between the pupil and the individual based on factors such as size, strength, age, intelligence, peer group power, economic status, social status, religion, ethnic origin, sexual orientation, family circumstances, gender, race, disability or the receipt of special education. Quebec, Manitoba, New Brunswick, Nova Scotia, Alberta, Newfoundland and Labrador, the Northwest Territories and Yukon have also enacted similar anti-bullying laws. Other provinces, including British Columbia and Saskatchewan, have established policies and action plans regarding bullying in schools.^[140]

On June 18, 2020, the employees of the Canadian Museum for Human Rights revealed that its management would sometimes ask staff not to show any gay content on tours at the request of certain guests, including religious school groups.^[141]

Federal laws

The Criminal Code explicitly forbids communicating hate propaganda^[142] against members of identifiable groups, which includes members of the public distinguished by sexual orientation, gender identity, or gender expression.^[143] Members of identifiable groups are thus protected against hate speech and publications. In addition to the prohibition on hate publications, the Criminal Code also provides against defamatory libel. Everyone, including LGBT people, is protected against defamatory libels, especially through books, pamphlets, newspapers and the open Web, that are "likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person of or concerning whom it is published",^[144] either directly, by insinuation or irony, by words or otherwise. The Criminal Code also criminalises the act of advocating genocide, again against members of identifiable groups.^[142]

Hate speech is also prohibited by regulations passed under the Broadcasting Act. Where a station, network or undertaking is operated for radio purposes, television broadcasting or discretionary services, "a licensee shall not broadcast programming that contains ... any abusive comment or abusive pictorial representation that, when taken in context, tends to or is likely to expose an individual or a group or class of individuals to hatred or contempt on the basis of sexual orientation; any false or misleading news".^{[145][146][147]}

Provincial and territorial laws

There are also prohibitions on hate publications in three provinces and one territory.^[148] Alberta, British Columbia, Saskatchewan, and the Northwest Territories have enacted prohibitions on hate publications in their human rights legislation. Alberta's law prohibits hate publications based on gender, gender identity, gender expression, sex and sexual orientation.^[149] British Columbia prohibits hate publications based on sex, sexual orientation, gender identity or expression.^[150] Saskatchewan prohibits hate publications based on sex, sexual orientation or gender identity,^[151] while the Northwest Territories law prohibits hate publications based on sex, sexual orientation, gender identity or expression.^[152]

Supreme Court decisions

In R v Keegstra, the Supreme Court upheld the constitutionality of the criminal prohibition on hate propaganda, while in R v Lucas it upheld the offence of defamatory libel. The Supreme Court has upheld the prohibition on hate publications in human rights laws in two cases, Canada (Human Rights Commission) v. Taylor, and Saskatchewan Human Rights Commission v Whatcott.

Federal law

Parliament passed An Act to amend the Criminal Code (conversion therapy) (initially referred to as Bill C-4), in December 2021. The House of Commons gave unanimous consent to a motion that the bill be deemed to have been referred to a Committee of the Whole, read and passed through at all stages, on December 1, 2021. The Senate followed on December 7, 2021. The bill received royal assent the following day on December 8, and came into force on January 7, 2022.^[93]

The Act imposes criminal penalties on anyone causing another person to undergo conversion therapy, removing a child from Canada to perform conversion therapy, advertising or promoting conversion therapy, and benefiting financially from conversion therapy. The Act includes both sexual orientation, gender identity, and gender expression in its definition of conversion therapy, and protects both adults and minors.

An earlier bill that would have banned conversion therapy (Bill C-6) had passed the House of Commons in June 2021, but did not pass the Senate before Parliament was dissolved ahead of the September 2021 election.^[161][162] Unlike C-4, the ban in C-6 would not have extended to adults.^[163]

Provincial and territorial laws

In 2012, the professional order for Quebec psychologists (l'Ordre des psychologues du Québec) reaffirmed "its position that homosexuality per se is not a mental disorder", and that it "opposes portrayals of sexual minority youths and adults as mentally ill due to their sexual orientation".^[164] Any complaints concerning aversive therapies, whether it be conducted by religious, professional or other practitioners, would be filed with either one of the professional orders and/or Quebec's Commission des droits de la personne et des droits de la jeunesse, under the harassment clause, section 10.1 of the Quebec Charter of Human Rights and Freedoms,^[165] or under the psychological ill-treatment clause, section 38 of the Youth Protection Act.^[166] "No ideological or other consideration, including one based on a concept of honour, can justify any situation described in section 38".^[167] In October 2020, the Quebec Government introduced a bill to ban conversion therapy.^[120] It was passed unanimously on 9 December 2020 and given Royal assent on 11 December 2020. The Act provides that any person having undergone such therapy, that is, through spiritual or non-spiritual practice, service or treatment, may obtain reparation for the resulting injury.^[168] In Quebec, an action for damages for bodily injury resulting from conversion therapy, cannot be prescribed anyway; such therapy, within the meaning of the Civil Code of Québec, constituting a criminal offence as violent behaviour suffered during childhood.^[169] As a result, conversion therapy was made punishable and remediable by law in Quebec on December 11, 2020.^[170]

On May 22, 2015, Manitoba Health Minister Sharon Blady announced measures to stop conversion therapy in Manitoba. Blady said the province's Human Rights Code prohibits discrimination based on sexual orientation – including how health care services are provided.^[171] Blady also stated that "it is the position of the Manitoba Government that conversion therapy can have no place in the province's public health-care system."^[172]

In June 2015, the Affirming Sexual Orientation and Gender Identity Act (Bill 77) was made law in the province of Ontario. The act bans conversion therapy on minors and forbids it from being funded under the Ontario Health Insurance Plan public health care for anyone, of any age. The bill was introduced by Cheri DiNovo, a member of the Ontario New Democratic Party, and passed the Legislative Assembly with the support of all three major political parties.^[173]

On June 6, 2018, the Vancouver City Council unanimously voted to prohibit conversion therapy by businesses, regardless of age. The business licence bylaw applies to all licence holders, including religious groups.^[174][106]

Three bills (one each from the Nova Scotia Liberal Party, the Progressive Conservative Association of Nova Scotia and the Nova Scotia New Democratic Party) to ban the pseudoscientific and abusive practice were introduced in Nova Scotia.^[175][176] On September 25, 2018, the Nova Scotia House of Assembly passed the Sexual Orientation and Gender Identity Protection Act, the Liberal Party bill, with the unanimous support of all parties. The legislation received royal assent on 11 October and went into effect immediately. The act provides measures similar to Ontario's legislation, both in terms of prohibiting professionals from performing the therapy on minors, and prohibiting public funds from paying for the procedures for everyone regardless of age. However, Nova Scotia's age limit is set at 19 instead of 18, and its exception for competent consenting individuals has a minimum age limit of 16, whereas Ontario's act doesn't set any specific minimum limit with respect to competent consenting individuals. Nova Scotia's legislation also prohibits persons in a position of trust or authority (such as a religious leader) from making efforts aimed at changing the orientation or gender identity of a person under 19 years of age.^[177]

In November 2018, Prince Edward Island MLAs unanimously passed a motion expressing support for a conversion therapy ban. The non-binding motion was brought to the floor by Green Party MLA Peter Bevan-Baker. Health Minister Robert Mitchell argued to the best of his knowledge that conversion therapy is not practiced in the province. A queer rights advocate said he would like to see the province take the next step and introduce legislation.^[178] In November 2019, MLAs unanimously passed the Sexual Orientation and Gender Identity Protection in Health Care Act. The bill, as supported by the Progressive Conservative Party of Prince Edward Island, was a collaboration between Health Minister James Aylward and Opposition Leader Peter Bevan-Baker. The bill was granted royal assent on November 28 and went into effect immediately. The act is a combination of the legislation of Ontario and that of Nova Scotia, however, Prince Edward Island's legislation has used the age of 18 across the board whereas Nova Scotia's legislation uses the age of 16 for some aspects.^[179]

In March 2020, the Yukon Government introduced a bill to ban conversion therapy for minors.^[180] It was passed and given Royal Assent on 9 November 2020.^[128][181]

Effects of Colonialism

Since the 17th century, European and Christian ideals have been imposed upon Indigenous communities; it has played a large role in the erasure of multi-gender systems in these communities. Early missionaries were dismissive of multi-gender identities and forced their own ideals through assimilation. ^[222]

Two-Spirit Movements

In the 1980s, the Two-Spirit movement sought to define itself as distinct from the larger LGBTQ+ movement. Indigenous-Queer people faced challenges attached to racism and colonialism through the residential school system and The Indian Act. Two-Spirited activists fought for the Two-Spirited community in a way that would not isolate them from their culture. ^[223] Albert McLeod is one of the prominent activists in the Two-Spirit movement. McLeod created a range of services to help Indigenous people during the AIDS crisis. He recognized the need for services such as information on safe sex practices in Indigenous languages and culturally specific health campaigns.^[224]

Service Access

There is a disproportionate negative effect on Indigenous people living on reserve when it comes to things like access to healthcare, especially for Queer Indigenous peoples. Albert McLeod and others have been researchers and activists more better healthcare service for Indigenous communities. McLeod's work specifically has cited issues such as a lack of informational awareness and training for healthcare staff working with Indigenous and Queer Indigenous people as well as a general lack of healthcare access as a result of an urban-rural divide.^[225] McLeod also notes a 3.5 times higher incidence of HIV/AIDS among Canadian Indigenous communities when contrasted with other ethnic groups.^[226]

Indian reserves summary table