Sexual Orientation Included as Ground of Discrimination Under Canadian Human Rights Act

Haig v. Canada (1992), 16 C.H.R.R. D/226 (Ont. C.A.)

This is an appeal by the Government of Canada against a decision of the Ontario Court (General Division) which found that the Canadian Human Rights Act does not comply with s. 15 of the Canadian Charter of Rights and Freedoms because it fails to provide access to the ameliorative procedures of the Act to those who are discriminated against because of their sexual orientation. There is also a cross-appeal by the claimants Haig and Birch on the question of remedy.

On the substantive issue, the Court of Appeal upholds the decision of the lower court. Though s. 15 of the Charter does not expressly prohibit discrimination based on sexual orientation, the provision is open-ended and sexual orientation is a ground analogous to those listed, the Court of Appeal finds. It also finds that homosexual men and women are the object of invidious discrimination and they are an historically disadvantaged group in Canadian society. The Canadian Human Rights Act's failure to provide an avenue for redress for prejudicial treatment of homosexual members of society, and the possible inference from the omission that such treatment is acceptable, create the effect of discrimination. The Court rules therefore that the Canadian Human Rights Act violates s. 15 of the Charter by failing to provide needed protections. The Government of Canada expressly disavows any reliance on s. 1 to justify the failure to protect gay men and lesbians from discrimination.

As a remedy, McDonald J. of the Ontario Court (General Division) declared that s. 3 of Act, which lists the protected grounds of discrimination, to be of no force and effect. He ordered that his decision be stayed for six months or until appeal and that in the intervening period, the Act be fully operative.

The Court of Appeal considers the issue of appropriate remedy in light of the recent Supreme Court of Canada decision in Schachter. In that case the Supreme Court stated that there are five possible remedies available pursuant to s. 52 of the Constitution. They are:

  1. striking down
  2. severance
  3. striking down or severance and temporarily suspending the declaration of invalidity (which was the remedy selected by McDonald J. in this case)
  4. reading down, and
  5. reading in.

The Court of Appeal rejects severance, because s. 3 is integral to the operation of the Act and therefore severance would have the effect of striking down the entire Act. It also rejects reading down since the problem to be remedied here is the absence of a ground, and striking down s. 3 since this would provide no access to the Act for the complainants. It would provide a pyrrhic victory only. The choices available then are striking down s. 3 but suspending the declaration of invalidity to allow Parliament to repair the defect, or reading sexual orientation in as a further prohibited ground of discrimination.

The Court of Appeal concludes that reading sexual orientation into the Act is the most appropriate remedy since it is the least intrusive method and the one most reflective of the purpose of the Act.

The Court of Appeal varies the order of McDonald J. by substituting for it an order declaring that the Canadian Human Rights Act be interpreted, applied and administered as though it contained "sexual orientation" as a prohibited ground of discrimination in s. 3 of that Act.

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