Discrimination

CultureLawQueer

Montreal Pride is upon us and with it the sights and sounds of people celebrating sexual diversity in an environment that is supposed to be safe and welcoming. Though in Canada we pride ourselves at our enlightenment on issues of sexuality and gender identity, we have still have a long way to go. Before we can move forward, we need to look at our past.

This article will look briefly at the history of LGBTQ struggles in Quebec and Canada, conduct a quick overview of current legislation, and do its best to present a picture of the status quo and what needs to be done to make our country safer and more inclusive.

During the British colonial period, homosexuality, known as “buggery” or “sodomy” was punishable by death. In 1861, the law was eased a bit and the penalty was changed to ten years to life in jail. Anti-gay laws almost always targeted men and the language of laws was kept intentionally vague in order to give huge discretion to law enforcement.

Starting in 1890, gays were generally charged with “gross indecency”, and between 1948 and 1961 changes to the Canadian Criminal Code were made, creating the categories of criminal “sexual psychopaths” and “dangerous sexual offenders”. Instead of persecuting rapists and pedophiles, the changes were disproportionately used to target gays. In addition, Canadian immigration law considered homosexuals an inadmissible class of immigrants.

The gay rights movement in Canada didn’t really gain momentum until the 1960s, when George Everett Klippert, a mechanic from the Northwest Territories, admitted that he was gay and had sex with men. In 1967 he was charged with “gross indecency” and sent to prison indefinitely as a “dangerous sexual offender”.

His conviction was sadly upheld by the Supreme Court of Canada.

While Klippert was rotting in jail, the British government opted to decriminalize certain homosexual acts. Taking a cue from our Mother Country, Pierre Elliot Trudeau, at the time Justice Minister for Prime Minister Lester Pearson, began pushing the omnibus bill, a bill that would amend the Criminal Code to decriminalize homosexual sex, legalize contraception, and increase access to abortion. When asked about it, Trudeau told the press:

“It’s bringing the laws of the land up to contemporary society I think. Take this thing on homosexuality. I think the view we take here is that there’s no place for the state in the bedrooms of the nation. I think that what’s done in private between adults doesn’t concern the Criminal Code. When it becomes public this is a different matter, or when it relates to minors this is a different matter.”

The bill passed in 1969, and two years later, Everett Klippert was released from prison.

In 1977 Quebec passed its Charter of Human Rights and Freedoms, a quasi-constitutional bit of legislation and the first of its kind to openly ban discrimination on the basis of sexual orientation. Applicable to both private and public parties, the law bans discrimination in access to public spaces, contracts or refusal to enter into them, housing, and employment on the basis of many grounds including sexual orientation. The Quebec Charter also grants equal recognition, and bans harassment, and the distribution of discriminatory notices, symbols, or signs.

In 1978 Canada’s immigration laws were modified so homosexuals are no longer inadmissible.

In 1992, the ban on gays in the military was lifted. A few years later, in 1999, the Supreme Court of Canada ruled that same sex couples are entitled to the same benefits and under the same obligations as opposite-sex couples for the social programs they contribute to.

In the summer of 2005, Paul Martin’s government successfully passed Bill C-38, the Law on Civil Marriage, allowing same sex couples the legal right to marry. Attempts by Conservatives to reopen the marriage debate have failed and continue to do so to this day.

Over the years the Canadian Criminal Code has evolved to include “sexual orientation and gender identity or expression” in its definition of hate crimes. The inclusion of gender identity or expression is a recent addition by Prime Minister Justin Trudeau.

Hate crimes include public incitement of hatred, advocating genocide, and willful promotion of hatred, which carry penalties ranging from six months to five years in prison. In addition, sentencing guidelines for the courts now include the obligation to consider aggravating circumstances that could add to a sentence, including evidence that the crime was motivated by bias, prejudice or hate based on factors that include sexual orientation or gender identity or expression.

As it stands, life for Canada’s LGBTQ people is far from perfect. Many members of the LGBTQ community are still denied access to proper health care in Quebec and people are still being fired for being gay or transgender. Though the election of the orange bigot and the rise in hate crimes south of the border has bolstered support for LGBTQ groups, it has also given hatemongers in Canada the confidence to be more open in their hate.

Some Montreal institutions have to deal with homophobia in their recent past. Several groups have been calling on the City of Montreal and the Montreal Police (SPVM) to apologize for violent raids on gay clubs and parties in the 70s, 80s and 90s and just this year Projet Montreal City Councillor Richard Ryan and his party joined them. The raid on Sex Garage in 1990 was what sparked the movement that would ultimately lead to Montreal Pride.

Quebec launched initiatives in 2013 to fight homophobia, however queer people are still glared at in public for simply being themselves. Unfortunately, the one law that would firmly entrench LGBTQ rights – our constitution – still does not include protections for them, and partisan politics and the Quebec notion of us vs them where the rest of Canada is concerned will keep these protections from ever happening.

Protections for LGBTQ people are there but they could be a whole lot better.

This Pride, let’s do what the haters hate most – be out and proud and open and fabulous, while still firmly pushing for those changes Canada so desperately needs.

NewsPolitics

The RCMP is investigating an upsetting incident in Surrey (BC), where a 16 year-old black girl was handcuffed and taken down in a case of “mistaken identity”. Ruth and Gary Augustine told CBC that they have lodged a formal public complaint on behalf of their daughter, who prefers not to be named in order to avoid harassment on social media.

The teenager says she was waiting at the Newton bus loop last Friday, on her way to a job interview, when two Mounties showed up and started asking her questions. They were apparently looking for someone wanted under the Mental Health Act. She says that she started backing away when they called her a “high-risk mental health patient”. She soon found herself on the ground under the two officers, with her hands behind her back. That’s when a bystander, going by the Facebook name of Ash Hotti, started filming:

The teenager can be heard crying and cursing, shouting “My name is not LaToya, ask me what my name is!”

When one of the officers realizes that the bystander is filming, he threatens to seize the phone as evidence. The bystander demands that the officer explains how it constitutes evidence.

“This is fucking wrong, be ashamed of yourselves!” Hotti later says, assuring the teen: “Don’t worry I got everything on film.”

“Yeah, you can send it to her phone and they’ll get charged,” suggests a second bystander.

When the officers checked the girl’s purse for ID, they found that they had the wrong person. They uncuffed her and left. The teenager told CTV news that neither officers asked her for ID before they tackled her, but that she would have complied if they did.

The Surrey RCMP have issued a statement on Wednesday after the family lodged a public complaint.

“Information was received regarding an individual who was wanted on a Mental Health Act warrant. There were concerns for this individual’s health, safety, and well-being. Officers subsequently located someone matching the description and apprehended a female at this location. Once it was learned that it was not the correct person, the 16-year-old female was released immediately,” stated the letter.

They deemed the situation “extremely unfortunate” and assured that senior investigators are in contact with the family. “We are certainly mindful of her young age and how upsetting this was for her and her family” said Superintendent and Operation officer Ed Boettcher. “I can assure you that we have resources dedicated to investigating the incident.”

People of colour too often misidentified

According to the director of the Centre for Research-Action on Race Relations (CRARR), Pho Niemi, mistaken identity cases are woefully common, especially for people of colour. “We get a case like that every year,” the director said.

Why? Police descriptions of suspects tend to be a lot less detailed when they’re not about Caucasians. “Almost every time, the description is too broad and race becomes a predominant factor,” says Niemi.

If this was the case in Surrey, he thinks the family should ask for more than an apology and pursue legal action.

“If the police officers were looking only for a young black woman, then they would be in trouble with the law in terms of discrimination,” Niemi affirmed. “It opens up every young black woman in the area to a police arrest and detention.”

Just last February, a man named Errol Burke was held at gunpoint and arrested while trying to buy milk in Montreal, before the police realized they had the wrong man.

Niemi, who has also worked for the Quebec Human Rights Commission, is further concerned about how the officers intervened with a person they thought to be a high-risk mental health patient. He questions whether the officers are trained to handle such cases.

“When one intervenes with a person known to have mental health issues,” he remarked, “there is a way to intervene in order to reduce the likelihood of breaching that person’s civil rights.”

News

“To all the women who have been impacted by the forces’ failure to protect your experience at work, and on the behalf of every leader […], I stand humbly before you today and solemnly offer our sincere apology.”

Such were the words of the RCMP commissioner Bob Paulson, this Thursday, during a press conference in Ottawa. He was looking at ex-officers Janet Merlo and Linda Davidson, the two main plaintiffs of a class-action lawsuit for gender-based harassment and discrimination. Also present were the Justice Bastarache, as well as Public Safety Minister Ralph Goodale and Employment Minister MaryAnn Mihychuk.

They were together to announce the “historic” settlement of the lawsuit that now involves 500 women, who are current or former employees of the national police force. Four years after the lawsuit was filed, the RCMP apologizes, promises tens of millions in compensation for the victims and commits to improving the situation.

“This is a great day for myself, women in the RCMP and women in Canada… I have total fate that this is the beginning of a new era, hopefully a better era” said Merlo.

The ex-Mountie choked back tears as she talked about the dedication of the women who stepped forward: “they all love the RCMP, they love their jobs. They just want it to be a better place to work; a place for their daughters to work.”

Davidson expressed similar hope, before promising that she will “continue to watch developments and continue to right the wrongs” in the RCMP.

The settlement was accepted by all parties but has yet to be approved by the court. It entails three main aspects: an official apology from the RCMP, a compensation scheme for the victims and measures to improve the situation.

Confidential and independent process

Six different levels of compensation have been set, based on the severity of the offence and on the impact of said offence on the claimant. The highest compensation possible is $220 000.  Based on the 500 victims that are part of the initial law suit, the RCMP has planned a budget of $100 million, taking into account that the number of claimants could reach 1 000. The commissioner called the estimates “a ballpark” and insisted that it wasn’t a cap on the spending.

Justice Bastarache took great care of insuring, in both official languages, that the compensation process will be “absolutely confidential.” The RCMP will transfer the compensation money to an account only Bastarache manages, and thus will be kept in the dark about the details of the claims and the identity of the claimants.  Women who have suffered bullying, harassment and discrimination can come forward without fearing retaliation from colleagues and community.

The confidentiality, necessary as it is, also means that the identity of the perpetrators will be just as secret as the identity of the victims.

This raises obvious concerns about harassers not only going unpunished, but being allowed to continue working with the RCMP.

The commissioner, visibly uncomfortable at the mention of such concerns, assured that victims were welcome to address the RCMP or the police directly if they wanted the guilty party sanctioned. “Be assured that the fist of God will descend upon [the perpetrators],” he promised.

“Cultural transformation”

“We don’t think women should be in the force, and especially not French-speaking ones.”

That’s how Joanne Mayer was greeted by her sergeant when she started working for the RCMP in Gibson, B.C.

In Nanaimo, B.C, when Merlo told her supervisor she was pregnant, he started yelling at her that next time, she “should keep [her] fucking legs closed.”

Dildos left on their desks, constant crude remarks and sexual propositions, superiors groping their breasts, less time off than their male coworkers and even less assistance in dangerous situations are all part of what some female RCMP agents described as part and parcel of their daily life.

After retiring prematurely, Merlo spoke out about the gender-based discrimination, bullying and harassment that she endured during her 20 years of career in the national police force. In 2012, she wrote a book titled No One to Tell: Breaking My Silence on Life in the RCMP and filed a civil claim.

500 then came forward with similar stories. This number is expected to double.

Commissioner Paulson pronounced the words “cultural transformation” as many times as he could fit into one press conference. He admitted that it was more than time to bring the RCMP into the modern days and thanked the plaintiffs multiple times for playing their part in this progress. The way that complaints and sexual harassment are processed in the RCMP is under review.

“You can now take some comfort in the knowledge that you have made a difference” he said to Merlo and Davidson. “The RCMP will never be the same.”

LawNews

On November 23, 2015 the Arts and Science Federation of Associations (ASFA) of Concordia University reached a settlement with a former executive who accused them of discrimination and harassment based on her ethnicity and gender. The executive is known under the pseudonym “Mei Ling” to undoubtedly discourage harassment from misogynist and racist trolls and supporters of her harassers.

She sought $30 000 in damages after discovering a Facebook conversation about her between two male executives that was left open on a shared computer. The conversation made sexist and racist comments about her, referring to her as a “chink slave,” “bitch” and “whore” and joking about having her impeached if she didn’t have sex with them. Her complaints also include being excluded from executive events, being denied an award before she’d even applied for it and being the only executive not to receive a bonus.

She, with the help of The Centre for Research-Action of Race Relations (CRARR), a civil rights advocacy group, filed a formal complaint with the Quebec Human Rights Commission and the Youth Rights Commission last March. Though a settlement – which includes an undisclosed sum, a public apology and a promise to set up a task force to address the issues arising from the case – was reached with the ASFA, Mei Ling told the press she has every intention of pursuing her harassers individually before the Quebec Human Rights Commission. An investigation is currently underway.

This article is not about the fact that Mei Ling’s harassers are clearly racist misogynist slime who have no place in any position of authority.

It is not about the fact that Concordia’s refusal to give her justice and address the issues of misogyny and racism directly make them an accomplice to the harassment she received, and that the settlement reached is clearly an acknowledgment of their guilt.

This is about the reach of the Quebec Human Rights Commission and the Human Rights Tribunal.

quebec charter of rights newspaper headline

The Quebec Human Rights Commission and the Human Rights Tribunal are the organizations charged with the enforcement of the Quebec Charter of Human Rights and Freedoms. This law was enacted in the 1970s and prohibits, among other things, discrimination based on “race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.”

Though the Quebec Charter isn’t part of the Canadian Constitution and therefore can technically be changed by a simple act by the Quebec legislature, it is considered a fundamental “public order” law with quasi constitutional status. This means that it can’t be trumped by other laws or contracts unless said laws provide even more rights and freedoms than the Quebec Charter and even contains a rule stating that all other laws can’t violate articles 1 to 38 (regarding fundamental rights, freedoms including judicial and political rights and freedom from discrimination) unless the other laws specifically say that they apply in spite of the Charter.

quebec commission logoUnlike the Canadian Charter of Rights and Freedoms which applies only to the government and anyone acting on its behalf, the Quebec Charter applies to all violations of rights and freedoms, including those that occur between private parties. That means that even if your harasser is a private business or some jerk on the street, he could still find himself before the Human Rights Tribunal while the Human Rights Commission demands an explanation and compensation on your behalf.

It works like this: your rights are violated, so you go to the Human Rights Commission and file a complaint. The Commission then conducts an independent investigation. If the Commission decides there are legal grounds and evidence justifying the complaint, it then decides the best course of action which could be the negotiation of a settlement between you and the violator, submitting the dispute to arbitration, or referring the issue to the Human Rights Tribunal.

If the Commission goes to the Tribunal, it can seek “any appropriate measure against the person or to demand, in favour of the victim, any measure it considers appropriate at that time.” (section 80 of the Quebec Charter). This could not only include compensation for material damages but also any grief (known as moral damages) you experienced as a result, and even punitive damages if the violation of your rights was clearly intentional.

Take the case of Richard Zilberg. He’s a Jewish hairstylist who worked for a spa in Montreal. In 2012 he filed a complaint with the Human Rights Commission when his boss Iris Gressy told him he’d no longer be scheduled on Saturdays, his busiest workday, simply because he’s Jewish and shouldn’t work on the Sabbath.

Zilberg, like many Jews, does not keep the Sabbath and rightly felt that his level of observance was his decision alone. The Human Rights Commission agreed and asked that the spa pay him $17 500 in damages: $12 500 for loss of income and $5000 for moral damages. In addition, the Commission recommended that Gressy pay Zilberg an additional $2500 out of her own pocket for her intentional violation of his civil rights. Gressy has since refused to pay and is planning to go to the Tribunal.

Then there’s the case of Lettia McNickle, a black waitress working at Madisons New York Grill & Bar in Montreal who was given less work due to her natural braids. She claims racial discrimination. Though the chain’s head office has since issued an apology, the restaurant, which had initially agreed to mediation, has since withdrawn. With the support of CRARR, McNickle too filed a complaint with the Human Rights Commission and an investigation is scheduled.

To many, the Quebec Charter may seem like excessive policing of individual behaviour, but it and the bodies made to enforce it have their place in a society where suing someone on your own is so expensive. It’s an additional protection from harassment and discrimination and gives recourse to people who would otherwise have none.

News

When you read about the egregious case of Ellen Richardson, a Canadian woman recently denied entry to the US for a vacation, it’s hard to believe that we’re making any progress as a society when it comes to  defending those who are the most vulnerable. For all its talk about fighting mental illness and removing the stigma from those who suffer from it, our government’s policies seems to be achieving the exact opposite of this by sharing sensitive private information contained in the Canadian Police Information Centre data base with regards to those who have a history of serious psychological issues ( 1 in 5 Canadians, according to the latest studies), including suicide attempts, as was the case with Ms. Richardson.

Ms. Richardson is one of a number Canadians who have been turned away by US border security because their name appears on a de-facto black list of Canadians who, in the words of an RCMP flack, are not only a danger to themselves, put pose an imminent threat to the general public and “police officers who may come into contact with them.” Bear in mind, we’re talking about a paraplegic confined to a motorized wheelchair here.

The border agent in question explained to Ms. Richardson that he was just enforcing section 22 of the U.S. Immigration and Nationality Act which allows them to discriminate against foreigners visiting the country on the basis of mental health, even though such discrimination against American citizens is now illegal. He told her she could travel provided she received a note from one of the handful of doctors in Toronto that was approved by US authorities.

Ellen Richardson (image Toronto Star)
Ellen Richardson (image Toronto Star)

 

It’s worth noting that such outrageous violations of basic human rights of certain groups have been sanctioned by the US government for various reasons over the years, including a ban against people who are HIV positive from visiting the country which lasted until 2009.

As many experts have pointed out, people undergoing treatment for mental illness (Ms. Richardson, for example) do not have a higher rate of violence than those who aren’t. Furthermore, by punishing those that seek out help for their mental issues, the government inadvertently sends the message that such individuals should stay in the closet rather than admit that they have a problem.

For the Canadian authorities to participate in such an immoral system (sadly, not the first time) shows a complete lack of understanding of the both the nature of mental illness as well as shocking lack of respect for people’s recognized right to privacy as Canadians. Will the RCMP and the federal government apologize to Ms. Richardson for an unforgivable breach of her privacy and the inflicting of more psychological distress on her and others in a similar predicament?