The laws of consent
The age of consent laws in Canada are rather complex. The basic age of
consent for all sexual acts (except anal intercourse) between partners of any
sexual orientation is 14. This consent only extends to partners who are not
more than 2 years apart in age, and who are not members of the same immediate
family. The two year age differential does not exist when partners are both
over the age of 16, however, the laws concerning incest (sexual relations
between members of the same immediate family are binding on everyone,
regardless of sexual orientation). Anal intercourse (sodomy) is not legal
between any partners if one or both are under the age of 18. All consent laws
refer to sexual acts in private where no more than two persons are present.
Sexual acts in public places are illegal, though a gay or lesbian couple kissing
in a public park are more likely to be reprimanded or even arrested than a
straight couple kissing in the same place.
A great deal of propaganda distributed by right-wing religious groups claims that recent law reforms have made gays, lesbians and bisexuals privileged individuals. In fact, the reforms of the criminal law since 1972 have attempted to have the same laws made equally binding on all people regardless of sexual orientation. In this regard Canada is one of the more enlightened countries around. Put simply, sexual assault, rape, incest and sodomy (up to the age of 18) are all illegal regardless of the sexual orientation of the individuals involved. This is equality, not special status.
Many gay men, lesbians and bisexuals are the target of violence. Whether this is the result of a drunken brawl, or the concerted behaviour of the flourishing hate-groups in our country, such attacks are assault. Remember, being gay / lesbian / bisexual is not a crime, assault is! The police exist to protect everyone from crime, and while most police officers and police departments can be expected to behave professionally, and enforce the law no matter what their own personal beliefs may be, some do not. There are established bodies to support and protect witness to and victims of violence, and there are bodies who will investigate complaints against the police. Remember though, neither the police, nor any of these bodies can do anything if you are assaulted and do not report the assault.
Human Rights Legislation
At present (1995) provincial legislation protecting the rights of gays,
lesbians and bisexuals with respect to access to services, housing and
employment is inforce in all Canadian provinces except Newfoundland, Prince
Edward Island and Alberta. No such legislation exists in the Northwest
Territories. Similarly, no Federal legislation covers this issue, though the
Ontario Supreme court has ruled that the clause in the Charter of Rights and
Freedoms (1982) guaranteeing equal treatment on the basis of sex should be
interpreted as including sexual orientation . Currently several
organization, co-ordinated through EGALE (Equality for Gays And Lesbians
Everywhere) are lobbying Parliament to have sexual orientation added to the
Charter as a proscribed ground for discrimination.
What the provincial Human Rights Acts (including that in NB) mean, is that it is illegal to discriminate in the provision of services (private or public), housing (rented, leased or private) or employment on the basis of sexual orientation. Your landlord cannot evict you because you are a lesbian, your employer cannot dismiss you because you are gay, the province cannot refuse to educate you because you are bisexual.
Human Rights Commissions exist to monitor compliance with this legislation, and provide services such as legal advice, conciliation mechanisms, and if necessary, assistance in prosecuting cases. Once again, if you are discriminated against, no legislation, or Human Rights Commission can help if you are not prepared to fight the matter or register a complaint.
Such legislation does not prevent discrimination, any more than laws against theft and murder prevent such crimes, but they do provide means of legal redress. Such laws on the statute book also send a powerful message to the public that discriminatory practices are not acceptable.
Pornography
It is not the purpose of this pamphlet, or of FLAG to make any general
statements about whether or not pornography should or should not exist or
be available. It is widely available, and many gays and lesbians buy it and own
it in a variety of forms.
The criminal code of Canada states that any pornographic material depicting rape, violent assault, sexual relations with animals, sexual acts between persons under the age of 18, or between persons under 18 and persons over 18, are illegal. This extends to printed word, art work, photographic representation, film and video. Amendments to the criminal code in 1992 also added portrayals of persons under the age of 18 by anyone to the list of illegalities (ostensibly to deal with the distribution of child pornography). This most recent legislation is very ambiguously worded and will require test cases to add definition to the law. Officially it is illegal to buy, sell, import or own such material.
Obscenity was once defined in the tradition of English Common Law, as material likely to deprave and corrupt. This definition was changed in 1992 to read material which offends against community standards . Like the law amendments on child-pornography, this is very ambiguously defined, and will require test cases to decide just what community standards are.
Canada Customs and their operations are covered by regulations in addition to the Criminal Code, and these are a Federal responsibility in which individual officers have considerable discretion. Currently, and over the last 15 years, Canada Customs officers have been involved in a number of high-profile cases where books imported from the USA and Europe have been seized and impounded when destined for individuals, and bookstores (especially gay and lesbian community bookshops). Material seized is often freely avaiable through high- street bookstores, and imported by such businesses on a regular basis. Material most likely to be stopped and impounded is anything dealing with or portraying anal sex, sadomasochism or lesbian sex. Any change in the regulations bringing Canada Customs into line with the Criminal Code will likely depend on the outcome of several court cases currently moving very slowly through the system.
Immigration Law
This is a Federal matter, and one currently the subject of concerted lobbying
of Parliament by such organizations as EGALE and LGIT (Lesbian and Gay
Immigration Task Force). Should you become involved with a partner who is not
a Canadian citizen or landed immigrant on paper, if this partner does not
qualify as an independent immigrant is his or her own right, there is no
recourse. In reality, Immigration Canada has issued guide-lines to immigration
officers both in Canada and overseas granting individual officers
considerable rights of waiver and discretion in such cases. Applications for
landed immigrant status are more likely to proceed rapidly when made through
a consulate outside of Canada - this is true for all such applications. If your
partner qualifies as an independent immigrant (i.e. has sufficient points under
the assessment procedure), this is probably the best route to follow. Should
this not be the case, an application under what is know as Hardship and
Compassionate grounds is possible. This H&C application can be made within
Canada or through a consulate outside the country. Anecdotal evidence
suggests applications under H&C through consulates in the USA and London (UK)
are more likely to succeed than those through domestic immigration offices.
Bear in mind, H&C applications fall into the area of an individual officer s
discretionary powers, and if such an application fails (as with all immigration
applications) there is no appeal or refund of the substantial processing
fees.
Before starting immigration procedures for your partner, or before your partner starts the process, it would be wise to consult an immigration lawyer, or immigration counsellor (the latter course of action being considerably cheaper, especially as immigration cases do not qualify for legal aid in NB). It would also be advisable to contact LGIT, especially to find out which US or overseas consulates have been sympathetic. LGIT does not have the resources to take on individual cases, but their newsletters provide updates on the regular changes in regulations, fee schedules, and the location of consulates where an application is most likely to succeeded. This labyrinth could be simplified if Federal law was amended to recognize gay and lesbian relationships, and the Charter amended to include sexual orientation as prohibited grounds for discrimination.
Lesbian and Gay relationships in law
Put simply neither the Federal government, provincial legislatures or
municipal authorities grant any legal recognition to gay and lesbian
partnerships, no matter how longstanding. Some churches, such as the MCC, and
more liberal congregations elsewhere will bless or offer forms of marriage for
gays and lesbians, but these have no validity in law.
That said a number of employers, both private and public, now make medical benifits, insurance and pension rights avaiable to the domestic partners of gay men and lesbians, in the same way as these are extended to couples in common-law marriages. The provincial governemt of NB is one such public employer, though the matter of pension rights is still under consideration for practical reasons. Pension schemes in Canada that are underwritten by the Federal pensions scheme have to be registered with the Federal Pensions Commission, and their regulations specifically state that in pension matters a spouse shall be a member of the opposite sex. Currently, there is much lobbying of Parliament to change this regulation, amnd a number of court cases are pending that may force the change (the courts have traditionally been more inovative in interpreting the Charter of Rights and Freedoms with respect to such regulations).
Resources & organizations
On Our Own Terms: a Practical Guide for Lesbian and Gay Relationships, Laurie Bell, 1991. Coalition for Gay and Lesbian Rights in Ontario, Toronto.