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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 [L1.2].

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

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].

Asylum / Refugees

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].

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].

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].

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 [R1.1].

National

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 [R1.6].

On 19 and 21 September 2011, the NDP and the Liberal Party reintroduced a private member's bill 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.[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].

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].

National

On 28 April 2004, the Canadian senate passed a bill to extend hate-crimes protections to gays [R1.3].

Hate Propaganda [L1.2]

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 [R1.1].

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" [R1.1].

The law carries a penalty of up to five years in prison [R1.1].

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].

National

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.

National

In 1969, consensual sex between same-sex couples was decriminalised with the passing of Bill C-150, the Criminal Law Amendment Act [R1.1].

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].

National

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” [R1.9].

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 [R1.8].

Civil Marriage Act (2005, c.33 ) [L1.7]

Marriage — certain aspects of capacity

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

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.

Canadian law requires residency of one-year before a divorce may be obtained [R1.6].

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.

Previously:

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 [R1.5].

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].

Courts & Tribunals

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 [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].

Church

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 June 2004, the Anglican Church of Canada affirmed the "integrity and sanctity" of same-sex relationships [R3.1].

Marriage

In June 2005, two servicemen, who did not want to be identified, exchanged 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 [R1.2].

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 [R1.1].

Pensions

In March 2003, Canada included same-sex spouses in military pensions [R2.1]

Offences

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 [R3.2].

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 [R3.1].

Gender Identity

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 person’s 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" [R4.1].

National

If you married in 2010, or you’ve 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].

Courts & Tribunals

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