Laws

Canada

FEDERAL

Limited information only available for these topics

Access to Children
Adoption of Children
Age of Consent
Anti-Vilification
Artifical Insemination
Assisted Reproduction
Asylum, Refugees
Bullying
  Civil Unions
Custody of Children
Discrimination
Fostering Children
Gender Identity
Harassment
Hate Crimes
Health, Medical
  HIV/Aids
Homosexuality
Immigration
Inheritance
In Vitro Fertilisation (IVF)
Marriage
Military
Partners
  Parenting
Privacy
Property
Refugees
Sodomy
Taxation
Transgender, Transsexual
Violence
Wrongful Death

Please read the Disclaimer

Age of Consent Legislation/Cases/References
1.

National

Criminal Code, Part V Sexual Offences, Public Morals and Disorderly Conduct

Sexual interference

151. Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of forty-five days; or

(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for a term of fourteen days [L1.3].

Anal intercourse

159. (1) Every person who engages in an act of anal intercourse is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.

Exception

(2) Subsection (1) does not apply to any act engaged in, in private, between

(a) husband and wife, or

(b) any two persons, each of whom is eighteen years of age or more,

both of whom consent to the act.

This law has been struck down in several jurisdictions, including Ontario, because it sets a different age of consent for gay sex, 18, than straight sex, 16 [R1.2].


In April 2006, Canada's Conservative government was expected to unveil legislation to raise the age of sexual consent to 16 from 14 [R1.1] and did so, R.S. 2008, c. 6 s.54 [R1.1].

L1.3 Criminal Code: Part V Sexual Offences, Public Morals and Disorderly Conduct (Accessed 22 JUL 12)
R1.2 Xtra.ca: Military police resurrect Canada's long-dead anal sex law 19 FEB 10
R1.1 Herald Sun: Canada to Raise Age of Consent 20 APR 06
Asylum, Immigration, Refugees Legislation/Cases/References
1.

Immigration: Same-sex partners

Family Class:

If you have a Canadian partner (including a Canadian permanent resident), you may be able to get sponsored as a spouse, common-law partner, or conjugal partner.

If you marry a Canadian partner in Canada, your Canadian partner can sponsor you.

Common-law partners are similar to domestic partners and are defined as life partners who have been living together for at least one year. If you have been living together with your Canadian partner continuously for at least one year, he/she can sponsor you as his/her common-law partner.

A conjugal partner is like a common-law/domestic partner but no cohabitation is required. Conjugal partners can be a couple who maintain the life partner form of relationship for at least one year but are unable to live together. The separation may be due to visa requirements or restrictions, or fear of prosecution of homosexuality, common in some countries [R1.3].

In January 2011, Citizenship and Immigration Canada denied [R1.2] a report that recent demand for same sex sponsorships to come to Canada led to tougher checks being conducted at embassies abroad to ensure that same sex marriages conducted at the embassies or consulates of other countries are legal before the partners are considered for landed immigration status in Canada [R1.1].

Skilled Worker (Independent), Entrepreneur, Investor, Self-employed:

If you are single or in a same-sex relationship but neither of you are Canadian citizens or Canadian permanent residents, you can immigrate to Canada based on your own merit if you qualify as a Skilled Worker (Independent), Entrepreneur, Investor, or Self-employed. As a same-sex couple, you can apply together by submitting one application. One of the partners will be the principal applicant who qualifies under one of the categories and his/her partner can be included as the common-law partner in the same application [R1.3].

Civil Union/Commitment Ceremony:

Although civil unions and commitment ceremonies are similar to marriages, they are not recognized as marriages for Canadian immigration purposes [R1.3].

2.

Asylum / Refugees

See also: 3. Courts & Tribunals

On 11 December 2016, it was reported that Adebayo Katiiti a 22-year-old Ugandan f2m transgender man qualified for refugee status in Edmonton. Katiiti arrived in August to compete at the International Gay and Lesbian Aquatics Championships but in the midst of the competition, started to receive threatening text messages from his own family. He then decided to seek asylum in Canada [R2.7].

In May 2004, the Canadian Immigration and Refugee Board rejected the asylum case of a Mexican gay man, stating that he was not "visibly effeminate" and therefore not vulnerable to persecution in his homeland of Mexico [R2.6].

In March 2003, an outspoken homosexual transvestite from Mexico was to get a new refugee hearing claiming he'll be killed by Mexican police if he was returned to that country because he's an activist for gays, lesbians, transvestites and transgendered people [R2.5].


In January 2003, under a new US-Canadian agreement, asylum seekers entering Canada through the United States can be turned back and told to seek asylum in the US. If you have been denied asylum in the United States or you fear that you may be detained or deported from the US under new INS "special registration" regulations, you may consider going to Canada. The new agreement will not go into effect until Spring 2003 [R2.4].


In 2001, a relatively new addition to the list of provisions enshrined in the 1951 UN Convention that entitles a person to apply for refugee status, "sexual orientation" owes its inclusion to a growing understanding in a handful of countries that lesbians and gays constitute a distinct social group. This article has been invoked to grant asylum to lesbians and gay men in Canada [R2.3].


In August 2000, aAt an Immigration Board hearing in Toronto, a lesbian couple from Mexico were granted asylum, the Board accepting testimony of their fear of homophobic violence as grounds for granting asylum. This was the first time Canada has accepted these grounds for granting asylum [R2.2].


Since 1994, refugee claims based on sexual orientation have been permitted when the Supreme Court of Canada broadened the definition of social group to include homosexuals [R2.1].

3.

Courts & Tribunals

On 30 September 2016, Border agency officials have suspended Saturday's deportation of Ugandan asylum seeker Yvonne Niwahereza Jele for a year and agreed to hear her new evidence following Ugandan news reports that she was facing charges of committing ''unnatural offences'' and ''indecent practices'' and police in Kampala were looking for her. The federal court also agreed to set aside the refugee board's decision to refuse Jele's asylum claim, and to hear the application for judicial review on 19 December. However, the court is authorized only to review whether the refugee board made any legal errors and cannot accept new evidence [R3.5].

On 27 July 2016, after a 3-year fight and six proceedings including two in the Federal Court, Immigration and Refugee Board Member Michele Pettinella granted Rolston Ryan from St Kitts and Nevis refugee status, stating unequivocally that St Kitts and Nevis is unwilling to safeguard its LGBT citizens, saying ''The state criminalizes homosexual activity. This is reflective of a state that is homophobic'' [R3.4].

On 09 May 2016, Judge Anne Marie McDonald in the Federal Court was reported to have overturned a decision from the Refugee Appeal Division that found Rolstan Ryan, a gay asylum seeker from St Kitts and Nevis, was not refugee. The Judge found that the RAD had no basis upon which to make the assumption that the law making homosexuality unlawful isn't enforced. Ryan's case will go back to the RAD [R3.3].

On 15 June 2012, Judge James Russell in the Federal Court ruled the Refugee Protection Division (RPD) of the Immigration and Refugee Board did not give Nigerian Ogunrinde's evidential affidavits enough weight in its 2010 decision, returning the case to the RPD for a new pre-removal risk assessment before different staff [C3.2], [R3.1].

Cases Pizarro, Claudio Juan Diaz v. M.E.I. (F.C.T.D., no. IMM-2051-93), Gibson, March 11, 1994, at 3-4;
Gomez-Rejon, Bili v. M.E.I. (F.C.T.D., no. IMM-470-93), Joyal, November 25, 1994
Tchernilevski, Taras v. M.C.I. (F.C.T.D., no. IMM-5088-94), NoŽl, June 8, 1995. Reported: Tchernilevski v. Canada (Minister of Citizenship and Immigration) (1995), 30 Imm. L.R. (2d) 67 (F.C.T.D.).
R1.3 Border Connections: Same Sex Immigration for Gay and Lesbian 2008
R1.2 Xtra!: Immigration rules for gay couples haven't been toughened: CIC 13 JAN 11
R1.1 Toronto Sun: Canada toughens gay marriage immigration checks 07 JAN 11
2. Asylum, Refugees
R2.9 EdmontonJournal: Ugandan transgender man secures refugee status in Edmonton 11 DEC 16
C2.8 Federal Court: Francis Ojo Ogunrinde and The Minister of Public Safety and Emergency Preparedness 2012 FC 760 PDF 210.79kb, 15 JUN 12
R2.7 Xtra!: Gay refugee rejection unreasonable, court rules 17 JUL 12
R2.6 The Advocate: Canadian Immigration Rejects Case of Mexican Gay Man 07 MAY 04
R2.5 Edmonton Sun: Transvestite Granted Hearing 08 MAR 03
R2.4 Al-Fatiha News: "Fleeing to Canada in Fear of New INS Regulation" 11 JAN 03
R2.3 Beirut Daily Star: For Some Young Lebanese Staying Means 'Life Will be Over' 12 OCT 01
R2.2 Toronto Sun: Mexican Gays Get Asylum 08 AUG 00
R2.1 Toronto Globe & Mail: Gay Refugee Claimants Seeking Haven in Canada 24 APR 04
3. Courts & Tribunals
R3.5 TheStar: Gay asylum seeker granted last-minute reprieve from deportation to Uganda 30 SEP 16
R3.4 Xtra!: Gay Caribbean man granted refugee status after three year fight 26 AUG 16
R3.3 DailyXtra: Court overturns decision to deport gay Caribbean asylum seeker 09 MAY 16
C3.2 Federal Court: Francis Ojo Ogunrinde and The Minister of Public Safety and Emergency Preparedness 2012 FC 760 PDF 210.79kb, 15 JUN 12
R3.1 Xtra!: Gay refugee rejection unreasonable, court rules 17 JUL 12
See also: Citzenship and Immigration Canada
Immigration and Refugee Board
Civil Unions, Partners: Domestic, Registered Legislation/Cases/References
See also: [MARRIAGE]
1.

National

In November 2002, Justice Minister Martin Cauchon was expected to explore the possibility of federal civil unions for same-sex couples [R1.7].

In March 2002, gays and lesbians whose partners died after 1 Jan 98 are entitled to benefits under the Canada Pension Plan [R1.6].

The federal government imposed the 1998 cut-off date when it introduced Bill C-23, which granted a variety of rights to same-sex couples in 2000 [R1.5].


In April 2000, the House of Commons passed a bill to amend 68 federal statutes to erase most legal differences between heterosexual and homosexual couples [R1.4].


In February 2000, proposed law to extend same-sex couples the same benefits as common-law pairs passed a crucial vote in the Commons [R1.3].


In June 1999, two Nova Scotians became the first gay men in Canada to receive survivor benefits under the Canada Pension Plan Act [R1.2].


In March 1999, the government intended to introduce in Parliament legislation to provide spousal pension benefits to same-sex partners of federal government employees [R1.1].

2.

Courts & Tribunals

On 05 December 2002, Ontario Superior Court Justice Maurice Cullity gave his approval for a nationwide class-action suit to proceed on behalf of gays and lesbians seeking Canada Pension Plan benefits from their deceased partners [R2.3].

In November 2002, a class action lawsuit, the first class action dealing with lesbian and gay equality in Canadian history, sought benefits retroactive to 17 April 1985, the day equality guarantees were enshrined in the Canadian Charter of Rights and Freedoms [R1.5]

The case is expected to be heard in June 2003.


In September 2003, a lawsuit against the Canadian government for the payment of $400 million worth of pensions to gay widows began. The case, which was brought to court by the widowed partners of gays and lesbians who died before 1998 [R2.2].


In May 1999, the Supreme Court of Canada ruled that the definition of "spouse" in s. 29 of the Family Law Act, R.S.O. 1990, c. F.3, infringed or denied s.15(1) of the Canadian Charter of Rights and Freedoms and was not justified in a free and democratic society pursuant to s.1 of the Canadian Charter of Rights and Freedoms [R2.1].

R1.7 Canadian Press: Gay Civil Unions Examined 04 NOV 02
R1.6 Associated Press: Suit to Recover from Pension Plan 13 MAR 02
R1.5 Canadian Press: B.C. Gays, Lesbians to Join National Class-action Suit for Survivor Benefits 22 NOV 02
R1.4 Reuters: Canada's House Passes Bill Extending Gay Benefits 11 APR 00
R1.3 Canadian Press: Bill Won't Alter Definition of "Spouse"" 11 FEB 00
Toronto Star: Same-sex Legislation is Expected This Week 08 FEB 00
R1.2 London Free Press: Nova Scotian Gays Win Benefits 01 JUN 99
R1.1 Wall Street Journal: Canadian Government to Weigh Legislation For Same-Sex Spousal Benefits 17 MAR 99
R2.3 Canadian Press: Judge OKs Suit for Gay Survivor Benefits 06 DEC 02
R2.2 Gay.com UK: "'Almost equal is not equal' in $400 million gay lawsuit" 09 SEP 03
R2.1 Equality for Gays & Lesbians Everywhere: Supreme Court Rules: Same-Sex Couples Entitled to Equality 20 MAY 99
Discrimination Legislation/Cases/References
1.

Federal

The Canadian Human Rights Act provides:-

Prohibited grounds of discrimination

3 (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered [R1.1].

2.

Courts & Tribunals

On 09 September 2010, Ontario Superior Court Justice Catherine Aitken ruled that blood donation service Canadian Blood Services has the right to bar gay men and ordered Kyle Freeman pay $10,000 damages to CBS [R2.1].

R1.1 Parliament of Canada: Bill C-16 (Accessed 05 JUL 17)
R2.1 Kyle Freeman vs. Canadian Blood Services
PinkNews.co.uk: Canadian judge rules in favour of blood service which bans gay men 09 SEP 10
Gender Identity, Intersex,
Transgender, Transexual

[?]
Legislation/Cases/References
1.

National

On 24 August 2017, Minister of Immigration, Refugees and Citizenship Ahmed Hussen announced that the Government of Canada will be working to implement an ''X'' gender designation in Canadian passports, as well as other documents issued by Immigration, Refugees and Citizenship Canada (IRCC). Interim measures starting 31 August 2017, will allow individuals to add an observation to their passport stating their sex should be identified as ''X'' indicating that it is unspecified [R1.15].

On 19 June 2017, Bill C-16 received Royal Assent. The Bill adds gender identity and gender expression to the list of prohibited grounds of discrimination [R1.14].

On 08 November 2016, it was reported that Immigration, Refugees and Citizenship Canada will allow some foreign visitors to identify themselves as male, female or other in new Electronic Travel Authorizations (eTAs) to be introduced on 10 November [R1.13].

On 17 May 2016, Prime Minister Justin Trudeau announced the introduction of (Bill C-16) to protect transgender people from hate speech and discrimination, as debate rages in the United States over laws restricting their rights [R1.12].

On 28 April 2015, it was reported that as of February Canadians no longer need to undergo sex-reassignment surgery in order to change the gender marker on their citizenship certificate under new reforms from Citizenship and Immigration Canada. Those wishing to change their gender on the certificate need only now submit provincially or territorially-issued documentation such as amended birth certificate, dispensing with the need to submit proof of sex-reassignment surgery [R1.11].

On 10 June 2013, the Federal trans rights bill C-279 was adopted unamended at a Senate Committee on Human Rights and now goes to a third reading [R1.10].

On 20 March 2013, the House of Commons passed Bill C-279 in a 149–137 vote. The Bill now goes to the Senate. If passed into law it would make it unlawful to discriminate against transgender Canadians [R1.9].

On 20 November 2012, Federal Bill C-279 – which would enshrine "gender identity" into the Human Rights Act – headed to The Standing Committee for Justice and Human Rights [R1.8].

As at 18 December 2011, Passport Canada requires trans people to undergo sexual reassignment surgery (SRS), or provide a letter guaranteeing the procedure will take place within a year before allowing a change of the sex designation in passports [R1.7].


On 19 and 21 September 2011, the NDP and the Liberal Party reintroduced a private member's bill (C-279) that would protect transgender Canadians from discrimination, giving them explicit rights under the Human Rights Act and the hate-crimes provision of the Criminal Code [L1.6], [R1.5]. See also [R1.1], [R1.2].


On 29 July 2011, Regulations Amending the Designated Provisions Regulations and the Identity Screening Regulations were gazetted providing that "5.2 (1) An air carrier shall not transport a passenger if … (c) the passenger does not appear to be of the gender indicated on the identification he or she presents" [L1.4], [R1.3].


On 28 March 2011, Bill C-389 which would have added gender identity and gender expression as prohibited grounds of discrimination lapsed in the Senate with the calling of the election [R1.2].

On 09 February 2011, private member's Bill C-389, to protect Canadians who have changed gender or are in transition from discrimination, passed third reading in the House of Commons and moved to the Conservative-dominated Senate [R1.1].

2.

Courts & Tribunals

In February 2003, after a court ruling saying that the prison service's refusal to pay for the operations is discriminatory, transgender prisoners in Canada will be able to get gender reassignment surgery [R2.3].


In February 2000, Corrections Canada foreshadowed the introduction of a new policy allowing transsexual prisoners to get sex changes [R2.2].


In November 1999, a transsexual inmate was transferred to a women's prison to undergo a sex-change operation after Corrections Canada settled her human rights complaint [R2.1].

R1.15 Government of Canada 24 August 2017 Minister Hussen announces major step forward in gender equality by making changes to passports and immigration documents 24 AUG 17
R1.14 Parliament of Canada: Bill C-16 (Accessed 05 JUL 17)
R1.13 TheGuardian: Canada to offer gender-neutral Ďotherí option for visitors 08 NOV 16
R1.12 Prime Minister of Canada: Statement by the Prime Minister of Canada on the International Day Against Homophobia, Transphobia, and Biphobia 17 MAY 16
R1.11 NationalPost: Transgender Canadians can now self-identify on citizenship documents without sex-reassignment surgery 28 APR 15
R1.10 Xtra!: Federal trans bill passes Senate committee 10 JUN 13
R1.9 Inquirer News: Canada House passes transgender bill 21 MAR 13
R1.8 Xtra!: Trans legislation imminent on Day of Remembrance 20 NOV 12
R1.7 Xtra!: Trans Canadians fight for recognition on legal documents 18 DEC 11
L1.6 Parliament of Canada: Bill C-279 21 SEP 11
R1.5 Xtra!: Trans bill reintroduced in House of Commons 22 SEP 11
L1.4 Canafa Gazette: Regulations Amending the Designated Provisions Regulations and the Identity Screening Regulations SOR/2011, 29 JUL 11
R1.3 Jezebel: Canada Screws Up Royally and Refuses to Let Transgender People Fly 30 JAN 12
R1.2 Burnaby NOW: Transgender rights bill killed by election 28 MAR 11
R1.1 CTV.ca: Commons approves transgender protection bill 10 FEB 11
R2.3 Gay.com UK: Canadian Prisons Must Pay for Gender Reassignment Surgery 11 FEB 03
R2.2 Calgary Sun: Sex Rule Changing 16 FEB 00
R2.1 National Post: Male Prisoner Allowed to Undergo Sex Change 19 NOV 99
Hate Crimes Legislation/Cases/References
1.

National

On 28 April 2004, the Canadian senate passed a bill to extend hate-crimes protections to gays [R1.4].

Hate Propaganda [L1.3]

Advocating genocide

318. (1) Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Definition of "genocide"

(2) In this section, "genocide" means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely,

(a) killing members of the group; or

(b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.

Consent

(3) No proceeding for an offence under this section shall be instituted without the consent of the Attorney General.

Definition of "identifiable group"

(4) In this section, "identifiable group" means any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.

Public incitement of hatred

319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

Previously:

In September 2003, the House of Commons passed Bill C-250, a private member's bill introduced by New Democrat MP Svend Robinson, which amended the hate propaganda section of the Criminal Code to add homosexuals to a list of groups legally protected from incitement of hatred and genocide [R1.2].

The hate propaganda law, originally passed in 1970, banned incitement of hatred on the basis of colour, race, religion and ethnic origin, but not "sexual orientation" [R1.2].

The law carries a penalty of up to five years in prison [R1.2].


On 17 May 2016, Prime Minister Justin Trudeau announced the introduction of (Bill C-16) to protect transgender people from hate speech and discrimination, as debate rages in the United States over laws restricting their rights [R1.1].

2.

Courts & Tribunals

On 20 August 2002, Human Rights Tribunal chairman Grant Sinclair ordered a Web site that equates gays with pedophiles, bestiality and sexual predation shut down, saying it violates federal anti-hate laws [R2.1].

R1.4 The Advocate: Canadian Lawmakers Pass Hate-crimes Bill 30 APR 04
L1.3 Department of Justice: Hate Propaganda s318 et seq (Accessed 29 JUN 09)
R1.2 Canadian Press: House of Commons Votes to Protect Gays Under Hate Propaganda Law 17 SEP 03
R1.1 Prime Minister of Canada: Statement by the Prime Minister of Canada on the International Day Against Homophobia, Transphobia, and Biphobia 17 MAY 16
R2.1 Canadian Press: Human Rights Tribunal Orders Anti-gay Web Site to Cease and Desist 22 AUG 02

GayLawNet®™ "Exclusive" Sponsorship of this page IS available
Health, Medical Legislation/Cases/References
See also: [HIV Aids]
1.

National

On 20 June 2016, Canadian Blood Services announced the approval of a request to reduce the blood donation waiting period for men who have sex with men from five years to one year with effect nationally on 15 August [R1.3].

On 22 May 2013, Dr Dana Devine Vice President, Medical, Scientific & Research Affairs at Canadian Blood Services reportedly announced that men who have not had sex with other men within the last five years will be allowed to donate blood as part of new guidelines to take effect 22 July [R1.2].

Since 1998, Health Canada introduced a new policy on donor deferral, banning men who have sex with men from donating blood for life. The Canadian Blood Services (CBS), as mandated by its regulator, Health Canada, has placed a lifetime ban on blood donations from men who have had sex with other men (MSM) anytime since 1977. [R1.1].

2.

Courts & Tribunals

On 06 February 2015, the Supreme Court of Canada unanimously (9-0) ruled that Canadians have a fundamental right to end their lives, with the help of a physician, if they are suffering from a “grievous and irremediable medical condition that causes enduring and intolerable suffering”, giving Canada's federal and provincial governments just 12 months to create a legislative regime that protects the rights of all patients, protects the conscious rights of physicians, and protects the vulnerable from exploitation [C2.3], [R2.2].

On 08 September 2010, Justice Aitken in the Ontario Supreme Court ruled that in not disclosing that he had sex with men, Kyle Freeman did commit negligent misrepresentation and was not shielded by the Canadian Charter of Rights and Freedoms which does not apply to Canadian Blood Services [C2.1a], [C2.1b].

R1.3 CanadianBloodServices: Blood donation waiting period for men who have sex with men reduced to one year 20 JUN 16
R1.2 The Gazette: Lifetime ban on blood donations by gay men lifted in Canada 22 MAY 13
R1.1 End the Ban: History (Accessed 18 JAN 13)
C2.3 Judgment: Carter v. Canada (Attorney General) 2015 SCC 5 PDF 555.06kb 06 FE 15
R2.2 EdmontonJournal: Brave Supreme Court ruling on assisted suicide a victory for human dignity, human rights 06 FEB 15
C2.1a Canadian Blood Services v. Freeman 2010 ONSC 4885 (02-CV-20980) Part 1 PDF 8.00MB, 08 SEP 10
C2.1b Canadian Blood Services v. Freeman 2010 ONSC 4885 (02-CV-20980) Part 2 PDF 5.31MB, 08 SEP 10
HIV Aids Legislation/Cases/References
1.

National

On 20 June 2016, Canadian Blood Services announced the approval of a request to reduce the blood donation waiting period for men who have sex with men from five years to one year with effect nationally on 15 August [R1.2].

In June 2000, the Canadian government announced that it is reversing its plan to prevent HIV-positive people from immigrating to the country [R1.1].

Immigrants who test positive for HIV will not automatically be barred from entering the country, as had been announced in a policy change that had not yet taken effect.

The immigration department still planned to implement mandatory HIV testing for all prospective immigrants, but with the goal of making sure such immigrants get the proper treatment and care when they arrive in Canada.

2.

Courts & Tribunals

On 05 October 2012, the Supreme Court of Canada ruled it is not always a crime for people with HIV to not disclose their HIV status to their sex partners if there is no realistic possibility of transmission of HIV – as when they have a low level of the virus, wear a condom, are not reckless and do not fail to take steps to avoid transmitting the potentially fatal virus [C2.5], [C2.4], [R2.3].

In February 2012, the Supreme Court of Canada was hearing appeals in two cases, R v Mabior and R v DC, both involving HIV-nondisclosure where their partners did not become HIV-positive [R2.2].

On 03 September 1998, the Supreme Court of Canada ruled that knowingly exposing a sexual partner to HIV constitutes a prosecutable crime (aggravated assault) under Canadian law [C2.1].

The majority decision, authored by Justice Peter Cory, set out three criteria which should be proven in a prosecution on these grounds:

  • the accused committed an act that a reasonable person would see as dishonest,
  • there was a harm, or a risk of harm, to the complainant as a result of that dishonesty, and
  • the complainant would not have consented but for the dishonesty by the accused.
R1.2 CanadianBloodServices: Blood donation waiting period for men who have sex with men reduced to one year 20 JUN 16
R1.1 The Advocate: Canada to Reverse Policy barring HIV-Positive Immigrants 14 JUN 00
C2.4 Judgment: R. v. Mabior 2012 SCC 47, 05 OCT 12
C2.5 Judgment: R. v. D.C 2012 SCC 48, 05 OCT 12
R2.3 CTV News: Supreme Court: Failure to disclose HIV to sex partners not always a crime 05 OCT 12
R2.2 Xtra!: Supreme Court grills government lawyers over HIV 08 FEB 12
C2.1 CanLII: R v. Cuerrier [1998] 2 SCR 371, 03 SEP 98
Homosexuality, Sodomy Legislation/Cases/References
See also: [AGE OF CONSENT]
1.

National

In 1969, consensual sex between same-sex couples was decriminalised with the passing of Bill C-150, the Criminal Law Amendment Act [R1.4].

The Criminal Code (R.S.C., 1985, c. C-46) provides:-

Anal intercourse

159 (1) Every person who engages in an act of anal intercourse is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.

Exception

(2) Subsection (1) does not apply to any act engaged in, in private, between

(a) husband and wife, or

(b) any two persons, each of whom is eighteen years of age or more,

both of whom consent to the act. [L1.3].

This law has been struck down in several jurisdictions, including Ontario, because it sets a different age of consent for gay sex, 18, than straight sex, 16 [R1.1].

Updates:

On 11 November 2016, it was reported that the Liberal government would soon move to repeal Section 159 of the Criminal Code that criminalizes anal sex in a public place or if more than two persons take part or are present, and puts the age of consent for anal sex two years higher than the general consent age of 16 [R1.2].

2.

Courts & Tribunals

On 27 May 2011, the Supreme Court of Canada ruled 6–3 that the conviction of her partner for sexual assault by anal penetration with a dildo be restored in the case where a woman lost consciousness in an act of erotic asphyxiation, her consent being dependent upon consciousness. The Court majority rejected the concept of advance consent [C2.2], [R2.1].

R1.4 MetroNews: Canadian milestones 17 MAY 11
L1.3 Criminal Code (R.S.C., 1985, c. C-46): Anal intercourse (Accessed 12 NOV 16)
R1.2 Xtra!: Liberals move to scrap anal-sex law 11 NOV 16
R1.1 Xtra.ca: Military police resurrect Canada's long-dead anal sex law 19 FEB 10
2. Courts & Tribunals
C2.2 Supreme Court of Canada: R. v. J.A. PDF 172.20kb, 27 MAY 11
R2.1 Xtra!: Supreme Court rules in advance-consent-to-sex case 27 MAY 11
Marriage Legislation/Cases/References
See also: [MILITARY] [PARTNERS]
1.

National

Civil Marriage Act (2005, c.33 ) [L1.18]

Marriage — certain aspects of capacity

2. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.

Religious officials

3. It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs.

Freedom of conscience and religion and expression of beliefs

3.1 For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.

Marriage not void or voidable

4. For greater certainty, a marriage is not void or voidable by reason only that the spouses are of the same sex.


Divorce Act (1985, c.3 ) [L1.17]

Jurisdiction

3. (1) A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.


On 12 July 2016, it was reported that following a voting error and recount, the Anglican Church of Canada synod voted to allow same-sex marriage. The resolution still needs affirmation by the next synod in 2019 before it becomes church law [R1.16].

On 26 June 2013, the Civil Marriage of Non-residents Act was assented to [R1.15].

On 21 June 2013, Bill C-32, Civil Marriage of Non-residents Act, passed third reading in the Senate. The bill allows for people married in Canada because same-sex marriage isn't allowed where they live, to get a divorce from a Canadian court. C-32 still has to get royal assent before becoming law [R1.14].

As at 31 May 2013, the federal government was likely miss a key deadline to pass Bill C-32 the Civil Marriage of Non-residents Act that would close a legal loophole that has prevented foreign same-sex couples who married in Canada from seeking a divorce [R1.13].

On 17 February 2012, the Government introduced the Civil Marriage of Non-residents Act (Bill C-32) that declares same-sex marriages "valid for the purposes of Canadian law" with retroactive effect and lays out rules for same-sex divorce for non-residents, allowing a court in the province where the marriage was performed to grant a divorce if there has been a breakdown of the marriage as "established by the spouses having lived separate and apart" for at least one year before a divorce is requested [L1.12], [R1.11].

On 13 January 2012, Justice Minister Rob Nicholson confirmed that the “Civil Marriage Act will be changed to ensure that any marriages performed in Canada that aren't recognized in the couple's home jurisdiction will be recognized in Canada nonetheless” [R1.10].

In July 2005, Canada became the fourth country in the world, following Belgium, the Netherlands and Spain, to legalize same-sex marriage after the government's contentious civil marriage Bill C-38 received Royal assent [R1.9].

Canadian law requires residency of one-year before a divorce may be obtained [L1.15], [R1.8]. See also: 2. Courts & Tribunals [R2.9]

On 17 September 2003, it was reported that the new edition of the Canadian Oxford Dictionary will reflect an updated definition of marriage that will read "the legal or religious union of two people" [R1.7].

In January 2005, in defending gay marriage, Prime Minister Paul Martin had said that he was prepared to fight an election over same-sex marriage [R1.6].

On 02 June 2004, the Anglican Church of Canada affirmed the "integrity and sanctity" of same-sex relationships [R1.5].

In June 2003, Prime Minister Jean Chrétien has said the federal government would re-write the traditional definition of marriage to allow for same-sex matrimony [R1.4].

In July 2002, the federal government was expected to announce that it would continue to oppose same-sex marriages, but may not appeal a recent Ontario court ruling in an attempt to streamline a legal process likely to end up in the Supreme Court of Canada [R1.3].

On 29 October 2001, the Commons debated allowing same-sex couples to legally marry, but the matter is far from becoming law [R1.2].

On 21 February 2000, a proposed law that extends same-sex couples the same benefits as common-law pairs passed a second reading vote 161–60 in the Commons [R1.1].

2.

Courts & Tribunals

On 07 January 2013, Justice Ruth Mesbur in the Superior Court of Justice ruled in the divorce case of Wayne Hincks v. Gerardo Gallardo that it would be "impermissible discrimination" not to view their UK civil partnership, in exactly the same way as a fully married husband and wife [R2.10].

On 10 April 2012, it was reported that the argument put by Federal lawyer Sean Gaudet – that a marriage in Canada between foreign nationals couldn't be considered legally valid in the first place because it wasn't recognized by their home country or state – has not been withdrawn from Court proceedings, despite Government assurances [R2.9].

In January 2012, in a case where two women, one from England and the other from Florida, are seeking a divorce after their 2005 Canadian marriage, the government argues that many, if not all, the unions involving foreign residents are invalid under Canadian law because the women could not have lawfully wed in England or Florida. It also cited the Canada Divorce Act, which says any couple seeking to end a marriage in Canada must have lived there for a year [C2.8], [R2.7].


On 04 August 2011, the Attorney General for Canada informed Counsel for Mr. Wayne Hincks that he would be intervening in the case of Hincks v. Gallardo (Court File No.: FS-11-367046) to "oppose the issuance of a declaration that a civil partnership registered in the United Kingdom is a 'marriage' for the purpose of the Civil Marriage Act and that the parties to such a partnership are spouses within the meaning of the Divorce Act" [R2.6].


In December 2004, the Supreme Court told the government it could legalise gay marriage without violating the constitution [R2.5].

Previously

In November 2004, the United Church of Canada appeared before the Supreme Court of Canada, speaking in support of the right of same-sex couples to be married [R2.4].

In October 2003, a five-member panel of Supreme Court judges unanimously rejected the attempt by two religious and social conservative coalitions to appeal the Ontario court ruling that found the traditional definition of marriage unconstitutional [R2.3].

In August 2003, draft legislation was sent to the court for a legal opinion, but the Chief Justice said late Friday that the court would not fast track a decision [R2.2].

On 23 July 2001, eight same-sex couples started a long-awaited court fight Monday that they hope will change Canadian marriage laws [R2.1].

L1.18 Department of Justice: Civil Marriage Act (Accessed 29 JUN 09)
L1.17 Justice Laws Website: Divorce Act (R.S.C., 1985, c. 3 (2nd Supp.)) (Accessed 25 AUG 13)
R1.16 cbcNEWS: Anglicans to allow same-sex marriage after vote recount 12 JUL 16
R1.15 JusticeLawsWebiste: Civil Marriage of Non-residents Act (Accessed 04 DEC 13
R1.14 CBC News: Same-sex divorce available soon to non-residents in Canada 26 JUN 13
R1.13 CBC News: Same-sex divorce available soon to non-residents in Canada 26 JUN 13
R1.13 The Vancouver Sun: Federal government about to miss deadline to pass gay divorce bill 31 MAY 13
L1.12 DocumentCloud: Civil Marriage of Non-residents Act PDF 24.77kb, 15 FEB 12
R1.11 CBC News: Same-sex marriage law change addresses divorce 17 FEB 12
R1.10 The Globe & Mail: Justice Minister declares all same-sex marriages legal and valid 13 JAN 12
R1.9 Globe & Mail: Canadian Same-sex Marriage Bill Receives Royal Assent 20 JUL 05
R1.8 Canadian Press: U.S. Gays Urged to Think Twice Before Marrying Here 13 JUL 03
R1.7 The Advocate: Canadian Oxford Dictionary redefines marriage 17 SEP 03
R1.6 B.News: Canadian PM Defends Gay Marriage 27 JAN 05
R1.5 Associated Press: Canadian Church Affirms Same-Sex Unions 03 JUN 04
R1.4 Toronto Star: Ottawa to Table Legislation Allowing Same-sex Unions 17 JUN 03
R1.3 Canada.com: Government Still Opposes Gay Unions 22 JUL 02
R1.2 Canadian Press: MP's Debate Gay Marriage Bill 29 OCT 01
R1.1 Canadian Press: Same-Sex Legislation Passes Crucial Vote Despite Opposition 22 FEB 00
R2.10 The Telegraph: Civil partnership recognised as 'marriage' by court 09 JAN 13
R2.9 TheStar.com: Foreign same-sex coupleís bid for divorce drags on 10 APR 12
C2.8 DocumentCloud: VM and LW: Form 10 Answer FS-11-367893, 17 JUN 11
R2.7 Reuters Canada: Canada says marriages of foreign gays invalid 12 JAN 12
R2.6 Egale Canada: Open Letter to the Attorney General of Canada regarding the recognition of UK civil partnerships in Canada 03 OCT 11
R2.5 BBC News: Canada 'can permit gay marriage' 10 DEC 04
R2.4 B.News: Church Backs Marriage 04 NOV 04
R2.3 Edmonton Sun: Supreme Court Upholds Gay Marriages in Ontario 10 OCT 03
R2.2 365Gay.com: Court Delays Gay Marriage In Canada 03 AUG 03
R2.1 The Advocate: Couples Challenge Canadian Marriage Law 25 JUL 01
  See also: www.equalmarriage.ca
Military Legislation/Cases/References
1.

National

In February 2012, a report of homophobia and harassment of a gay Canadian soldier in Afghanistan had one military observer warning the incident is just the tip of the iceberg [R1..7].


In December 2010, a new policy was published on how trans soldiers should be treated says they should wear the uniform of their "target" gender but must be given privacy and respect. For example, no reason must be given when a personís name is changed on military records. The new policy does not allow military honours to be reassigned to new names, saying "there is no legal authority for rewriting history" [R1.6].


On 23 February 2010, the legality of charges against retired military chaplain Roger Bazin were raised because, at the time of the offence in 1972, Canada's military police were not able to arrest or prosecute in cases of sexual assault [R1.5].

In February 2010, Roger Bazin, who retired in 1995 having achieved the rank brigadier-general and chief commander of all Catholic chaplains in the Forces, was charged with the now abolished law of buggery under the Criminal Code of 1972, in force when the alleged offence happened on the army base CFB Borden [R1.4].


In June 2005, two servicemen, who did not want to be identified, exchanged marriage vows in a small ceremony at Canadian Forces Base Greenwood in western Nova Scotia. It was the first time the military has presided over a same-sex union after introducing guidelines in 2003 dealing with the contentious issue [R1.3].


In March 2003, military chaplains were considering offering same-sex marriage ceremonies as a gesture to help homosexual service people feel more at ease in the Canadian Armed Forces [R1.2].


In March 2003, Canada included same-sex spouses in military pensions [R1.1]

2.

Courts & Tribunals

On 15 March 2016, Justice Ann Marie McDonald in the Federal Court of Appeal in Halifax reserved her decision in a lawsuit brought by retired Sub-Lt. Paul Ritchie seeking a judicial review of a Human Rights Commission decision dismissing the alleged harassment and discrimination claim based on sexual orientation [C2.2], [R2.1].

R1.7 Xtra!: Gay in the army 23 FEB 12
R1.6 PinkNews: Canadian military publishes new transgender policy 10 DEC 10
R1.5 Xtra.ca: Snag in buggery case: military police had no jurisdiction in 1972 23 FEB 10
R1.4 Xtra.ca: Military police resurrect Canada's long-dead anal sex law 19 FEB 10
R1.3 Canadian Press: Canadian Forces See First Gay Wedding 14 JUN 05
R1.2 National Post: Military Chaplains Ready to Bless Gay Marriages 14 MAR 03
R1.1 National Post: British Military To Cover GLBT Families Affected By War 21 MAR 03
C2.2 Memorandum of Fact and Law: Paul Ritchie and Minister of National Defence, Canadian Forces and the Attorney No. T-526-15, 19 NOV 15
R2.1 MedicineHatNews: Judge reserves decision in case of gay man alleging harassment by military 15 MAR 16
Privacy Legislation/Cases/References
1.

Courts & Tribunals

On 13 June 2014, the Supreme Court of Canada ruled that internet providers cannot disclose private information, like names, addresses and phone numbers, to authorities without a warrant [C1.2], [R1.1].

C1.2 Judgment: R. v. Spencer 2014 SCC 43 PDF 364.08kb, 13 JUN 14
R1.1 Xtra!: Supreme Court of Canada rules in favour of online privacy 13 JUN 14
Taxation Legislation/Cases/References
1.

National

If you married in 2010, or youíve been living in a conjugal relationship (same-sex or opposite-sex) for 12 months, the Canada Revenue Agency expects you to file your tax returns as married people [R1.5].

In June 2003, for the purposes of the Income Tax Act, it seemed beyond any doubt that there is recognition of so-called common-law marriages and that the law in this regard applies to same-sex relationships [R1.4].

In March 2003, Canadian gays and lesbians who have been living together with a lover for more than a year must declare their partner's income on their tax returns for year 2003 [R1.3].


In February 2000, warnings were given that federal same-sex equality legislation would have a tax impact on same-sex couples that would vary according to their situation [R1.2].


In January 1999, the federal government planned to give gay couples the same benefits as heterosexuals [R1.1].

2.

Courts & Tribunals

In April 1998, an Ontario Court of Appeal effectively rewrote the Federal Income Tax Act to recognise same-sex couples [R2.1].

R1.5 The Globe and Mail: What your wedding planner may not have told you about taxes 05 APR 11
R1.4 National Post: Same-sex Couples Must Check the Law 25 JUN 03
R1.3 SX National: Canadian Taxman Equalises Queers MAR 03
R1.2 Toronto Sun: Equality Before the Taxman 12 FEB 00
R1.1 Toronto Sun: Feds Bow to Gay Rights 21 JAN 99
R2.1 Capital Q: Spouse Ruling Stands 03 JUL 98
The Advocate: Canadian Tax Law to Recognise Gay Partners 24 JUN 98
Melbourne Star Observer: Canadian Definition of 'Spouse' Illegal 08 MAY 98
Violence: Bullying, Domestic Violence, Harassment, Vilification Legislation/Cases/References
See also: [MILITARY]
1.

National

On 22 November 2012, the government defeated NDP MP Dany Morin's private member Motion M-385 in a 149–134 vote. The Bill sought to establish a standing committee tasked with studying the issue of bullying and eventually proposing a comprehensive national strategy to prevent it [R1.1].

R1.1 Xtra!: Conservatives quash anti-bullying motion 22 NOV 12

GayLawNet®™ "Exclusive" Sponsorship of this page IS available