Court Cases

The Good, the Bad and the Ugly of the…

Cara Zwibel
Director of Fundamental Freedoms Program
czwibel@ccla.org

 

 

 

 

 

It was a bad day for equality but a good day for teachers, when Ontario’s Divisional Court dismissed the application brought by CCLA and Becky McFarlane challenging the government’s decision to repeal the 2015 sex education curriculum and replace it with content from 1998. We intend to continue the fight and will be seeking to appeal the decision.

The good news is that the Court provided clear and unequivocal confirmation that teachers can teach about topics contained in the 2015 curriculum that are absent from the interim version that is currently in place. The missing content relates primarily to issues around consent, sexual orientation, family status and gender identity. Despite the government’s tough talk when the interim curriculum was first released – and their decision to institute a snitch line and encourage parents to report on teachers where they had “concerns” – the position of the government in Court was much different. As the judgment makes clear, the Minister’s lawyer confirmed that “as long as a teacher meets the learning objectives set out for that grade in the 2010 Curriculum, a teacher may address topics that go beyond those expressly set out in the 2010 Curriculum to meet the needs of a given class or student. Those topics include the topics in the 2015 Curriculum that are not found in the 2010 Curriculum.”

This was a significant concession for the government to make, and it certainly upset some of those who were so opposed to the 2015 content and supportive of the government’s decision to send the province’s kids back to the 1990s. Indeed, the President of the Elementary Teachers’ Federation of Ontario (ETFO) said that the concession made the case “a victory for ETFO and others”. ETFO had also challenged the government’s decision, albeit on grounds different from the CCLA.

The bad news? For students and parents, today’s decision is so disappointing.  It means that a transgender student may sit in a classroom and hear nothing of themselves reflected in the lesson. It means that a student with a queer mom, like Becky’s daughter, may hear nothing about queer families. What teachers may do is different from what they must do, and that is the importance of a provincial curriculum document. It sets the baseline, and CCLA’s argument has always been that, regardless of what happens in classrooms, the provincial government’s decision to remove content from the curriculum sends a message loud and clear. The message is one of exclusion and inequality. The ugliness of today’s decision is that it does nothing to disabuse Ontarians of that message. We will have to hope that the Court of Appeal will take up the call.

LGBTQ Rights

This Public Consultation on Sex Ed is Keeping a…

Cara Zwibel
Director of Fundamental Freedoms Program
czwibel@ccla.org

 

 

 

 

The Ontario government’s decision to scrap the 2015 sex ed curriculum and replace it with content from 1998 has been the subject of significant controversy, debate, and more than one legal challenge. In January, the CCLA and our co-applicant Becky MacFarlane were before the Ontario Divisional Court arguing that the decision to revert to the old curriculum violated the right to equality and was an arbitrary decision that should not be upheld. We are waiting for the Court’s decision, as are Ontario’s students, teachers and parents.

To us, the government’s reasons for reverting to the 1998 curriculum are clearly grounded in discriminatory attitudes towards the LGBTQ+ community, despite its statements about respecting parents and listening to “the people”. The government’s own purported reason for the change was that the 2015 curriculum was the product of an inadequate and flawed consultation process. As a result, the government engaged in what the Minister of Education has described as “the largest-ever consultation on education in Ontario’s history”.  Early reports about the consultation process demonstrated that there was a huge amount of support for the 2015 sex ed curriculum and little appetite for a reversion to the lessons of the 1990s. However, Premier has already attempted to cast doubt on the consultation process – the one his own government designed and implemented – by saying that “certain groups” flooded the process in its early days and may have skewed the results.

As an organization that is fiercely committed not only to equality but also to government accountability, we wanted to know how the government would take what they learned through the consultation and use it to develop the next curriculum. We had thought that a government that gloats about the extensiveness of its consultation process would want to show off the results. Surely, a government “for the people” would be responsive to the people. At a minimum, the people would be allowed to know what the people said. Turns out we were wrong.

Shortly after the consultation process closed in December of 2018, I made an access to information request to the Ministry of Education, asking for the results or data that the government gathered through the consultation process, particularly for the sex ed issue. The government designed the consultation process in a way that makes requests for access complicated. People wishing to share their views with the government could respond to a targeted survey, but could also send an email, submit a form with lots of spaces for open text, and participate in a telephone town hall. The consultation had no obvious way to control for multiple submissions from the same individual or even to assure that those participating were people residing in Ontario. Apparently, the government received over 70,000 submissions in one form or another – so there would be a lot of information to go through.

I worked with accommodating staff on the Ministry’s Information and Privacy team and pared my request down to weekly summaries of the consultations that Ministry staff had created. This would make the request easier and cheaper to process since it would not involve staff going through tens of thousands of pages of submissions or redacting personal information.

Now, however, the Ministry has denied my request on the basis that the summaries are “Cabinet records” under section 12 of Ontario’s Freedom of Information and Protection of Privacy Act.  Since the summaries are purportedly going to Cabinet for discussions about future policy directions, the Ministry argues that they cannot be turned over under access to information laws. The logical conclusion from this position is that if consultations with “the people” will inform discussions in Cabinet (as they should), the people can’t know what the people said.

Why does this matter? A consultation process doesn’t mean that the public gets to decide on policy, but if it is a meaningful one it should allow the public to understand what the government heard and how it arrived at its ultimate decision. Without robust access to information, politicians can spin the results. The Premier’s statement that “certain groups” skewed the process is one example. More recently, the Minister of Education has said that the consultation process showed a concern that the sex ed curriculum did not do an adequate job of teaching about consent. Of course, the 2015 curriculum contained a great deal more content on consent than the 1998 curriculum, but it appears even the 2015 curriculum was considered inadequate by many participants. This is useful information – and apparently, we can look forward to “further updates” on the findings from the consultation by the Minister. But we can only see what the government chooses to tell us, not a summary of what all participants had to say. We are not allowed to see the whole picture, probably because it may show us something that the government prefers we don’t see. We will be left to wonder what the government isn’t telling us, and which people this government is really for. If the point of the consultation was to increase public confidence, shielding the consultation results from public scrutiny directly and fatally undermines this goal.

We’ll be appealing the Ministry’s decision to shield the consultation summaries from disclosure, and will keep you posted on our progress.

Talk Rights

CURRENT ISSUES

Gender Identity and the Human Rights Act (former Bill C-16)

Because the Learn section of TalkRights features content produced by CCLA volunteers and interviews with experts in their own words, opinions expressed here do not necessarily represent the CCLA’s own policies or positions. 

Since its tabling in 2016, Bill C-16 (whose official title is An Act to Amend the Canadian Human Rights Act and the Criminal Code  and which received royal assent in June 2017) has been the subject of great controversy. Whereas the expressed intent of the law is to add “gender identity and gender expression to the list of prohibited grounds of discrimination” as well as amending the Criminal Code to “extend the protection against hate propaganda set out in that Act to any section of the public that is distinguished by gender identity or expression”, some have argued that the law, under its commendable purpose, hides an agenda with the potential to curtail fundamental freedoms.

This piece gives a summary explanation of the frameworks through which the law will be interpreted and applied.

The Canadian Human Rights Commission and Tribunal

Canada is a federal system. This means that the federal and provincial governments are vested with respective competencies over which than can enact laws. As such, the Canadian Human Rights Act (CHRA) outlaws discriminatory practices committed within fields of federal competency. The CHRA creates and regulates two organs, the Canadian Human Rights Commission and the Canadian Human Rights Tribunal.

The Commission has a wide range of duties and functions, the most ubiquitous of which is receiving human rights complaints. It may appoint an investigator to examine disputes as well as a councillor to attempt resolving the complaint before going before the Tribunal. Its administrative functions also include the drafting of policy guidelines and proposals for the harmonization of federal human rights law with provincial human rights standards across Canada.

The Tribunal takes up complaints referred to it by the Commission and holds all the powers of a superior court under the Constitution Act, 1867, which means it has similar power and authority to hear cases and render judgments. The only difference is its specialisation in federal human rights law. It is composed of at most fifteen members, four of which, including the Chairperson and Vice-chairperson, must have been members of a provincial bar for at least ten years. Other members without such qualifications must have relevant experience, expertise and interest in human rights.

The Tribunal can impose different sanctions aimed at remedying at discriminatory practices. This normally includes ceasing the discriminatory practice if it is ongoing and taking measures to ensure that it ceases. The Tribunal can impose other sanctions such as making available on the first reasonable occasion, the rights, privileges, or opportunities denied as a result of discriminatory practice, and compensatory damages of various forms (a list of possible remedies is enumerated at s. 53(2) of the Canadian Human Rights Act, R.S.C., 1985, c. H-6).

In order for a complaint to succeed, it must be based on one of the statutory grounds for discrimination stated in s. 3(1) of the Act. Bill C-16 adds gender identity and expression to this list. This is mostly symbolic considering discrimination against transgender individuals has been jurisprudentially outlawed by human rights tribunal judges in Canada who have interpreted discrimination against transgender people as falling under the statutorily proscribed ground of “sex”. We should not underestimate, nevertheless, the symbolic value of this enactment, which strengthens the case law and protection extended to transgender people and clearly positions gender-based harassment as illegal behaviour in the federal sphere. In doing so, the federal government brought its human rights standards in line with the provinces’, which have all enacted this form of amendment.

In short, this is a fairly innocuous addition to the law. Again, as was alluded to earlier, critics have opposed the amendment, claiming it can lead to “compelled speech”, which amounts to unconstitutional action. These claims will be addressed in the next piece published in this section. For the time being, it suffices to say that the changes to the law are not major by any means. They reflect already settled practice and in any case, the Human Rights Tribunal’s encroachment on liberty is minimal. It cannot sentence someone to imprisonment. Moreover, its decisions are aimed at remedying discriminatory practice, not channelling societal opprobrium the way a criminal court does. This being said, let us turn to C-16’s Criminal Code amendments.

The Criminal Code of Canada

Contrary to Human Rights Tribunals where proceedings are instigated and led by a private complainant, criminal prosecutions are initiated and conducted by the Canadian federal government.

Bill C-16 also adds “gender identity and expression” to the list of identifiable groups under subsection 318(4) of the Criminal Code. This list constitutes part of a subdivision of the Code called “Hate Propaganda”, which includes advocating genocide, public incitement of hatred, and wilful promotion of hatred. As will become evident, these are narrow crimes that will rarely be prosecuted.

Advocating genocide means advocating or promoting the killing of members of an identifiable group, or the deliberate infliction on the group conditions life calculated to bring about its physical destruction, both with the intent to destroy in whole or in part any identifiable group. Public incitement of hatred means to communicate statements in any public place that incite hatred against an identifiable group of people and such incitement is likely to lead to a breach of the peace. Willful promotion of hatred, which is similar but different, simply means to willfully promote hatred.

For public incitement of hatred to be found, there must be proof of several elements: (1) statements must be communicated in public, (2) they must incite hatred against an identifiable group, and finally, (3) they must lead to breach of the peace that the originator of the statements intended or foresaw as likely to happen and remained willfully blind to as events unfolded. Several defences exist in the case of willful promotion of hatred. Under subsection 319(3), an accused can show his innocence by showing (a) that the statements communicated were true; (b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text; (c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or (d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

For advocating genocide, or willful promotion of hatred charges to be laid, consent of the Attorney General of Canada is required.

Will Bill C-16 Bear Fruit?: A Trans Scholar and Activist’s Perspective

In a very recent paper published in the University of Toronto Law Journal, LL.M student and trans activist Florence Ashley argues that laws such as Bill C-16, while symbolically valuable and appreciated by the transgender community, will be largely inconsequential in improving transgender peoples’ well being due systemic obstacles and foundational flaws in the legislation’s premises. She posits, among other things, that human rights lawsuits are costly and the symptomatic poverty faced by many transgender individuals (55% of transgender people have an annual income of less than $25,000 according to Sandy E James et al, The Report of the 2015 US Transgender Survey (Washington, DC: National Center for Transgender Equality, 2016) at p. 56) prevents most from taking their harassers to court. She also argues, pointing to empirical evidence, that “violence against transgender people is not taken as seriously as violence against cisgender people, leading anti-trans assaults and murders to be less investigated, perpetrators to be less frequently apprehended, and accused to face reduced punishment”.  Most importantly, she argues anti-discrimination laws only respond to acts committed by an archetypal transphobe. In other words, they are premised on stereotypical ideas of transphobic behaviour, which have limited applicability given transphobia (or “transantagonism” as Ashley writes), is articulated through institutions, and conditioned behaviours and manifests in more subtle ways than laws like the Canadian Human Rights Act presume.

A Conclusion

This piece analyses the frameworks of the Canadian Human Rights Act and the Criminal Code, which Bill C-16 amends. The main takeaway at this point should be that these laws have very circumscribed applicability. This does not mean of course that possible outcomes should not be probed and debated. However, claims to the law’s authoritarianism, from the above demonstrations, seem tenuous at best.

infographic Corrections and Prisons

International Women’s Day: Highlighting issues of indigenous women in…

On this International Women’s Day, the Canadian Civil Liberties Association recognizes the many women in Canada who still fight for the realization of their rights.  In this infographic, the CCLA spotlights concerns about indigenous women in Canada’s criminal justice system, who are disprortionately represented in Canadian prisons  and are more likely to be placed in segregation.

If you are concerned, you can take action. Find and support the work of organizations working for justice for indigenous women across Canada.

  • Fight systemic harms
  • Protect the next generation
  • Insist on rights and resources for all indigenous children
  • Ensure aboriginal history and culture is part of all Canadians’ education at every level.
Infographic: Over-represented: indigenous women in Canada’s prison system