bout de papier, Vol. 30, No. 3 (2018), pp. 42–44
AS THE PRIME MINISTER STRESSED in his apology last November for the gay purges and other discriminatory measures against members of the LGBTQ2 community, the end of the purges did not end discrimination on the basis of sexual orientation in the Public Service. As the memoranda reproduced below indicate, those involved in the assignment process for the Foreign Service were aware that legal challenges were likely against persistent and pervasive forms of discrimination. What is also evident is that it was that broader legal context that prompted belated attention to the need for definition (and revision) of departmental personnel policies rather than any soul-searching in the Pearson Building — indeed, what is striking about these documents is the extent to which they attest to the absence of settled policy in this realm. Evidently, much of the discriminatory treatment had been exercised through informal administrative procedures and conduct rather than through clearly enunciated or justified principles or policies. Other documents on the same file (3-1-15 now at Library and Archives Canada) indicate that personnel managers were aware that the absence of defined policy made the Department of External Affairs (as it was then) more likely to have its practices questioned and overturned, whether by the Human Rights Commission or by the courts, and that it risked being seriously out of step with overall government policy and legislation.
In his parliamentary statement, the Prime Minister stressed the need to examine the past in order to learn from it. Unfortunately, some of the records that might shed light on this subject — particularly those associated with the interdepartmental body (the Security Panel) that oversaw the purges — are still not available for research. Curiously, that includes one of the key DEA files on the work of the Security Panel – $0207-40 — which was consulted by academics in 1980-81 while still held by DEA. That file now is neither kept by Global Affairs Canada nor transferred (as it should be legally) to Library and Archives Canada, so that it is unavailable even to security-cleared historians of GAC. Perhaps it has migrated to another office or agency? In any event, it is difficult to fulfill the Prime Minister’s intent when important files go astray.
By contrast, the records reproduced below were carefully kept by officers of DEA and transferred to Library and Archives Canada. I am especially grateful to one of LAC’s industrious and helpful archivists, Melody Béland, who brought the existence of file 3-1-15 to my attention and who identified the volumes in the holdings of the former Department of External Affairs where the file (in several parts) may be found.
Memorandum to ACB, ABM, APD, ABD, APC, APT, APG, APS, APSA, JDS, XDC: “Sexual Orientation”, ADA-0015, 5 January 1990
The Department will inevitably face a challenge that we discriminate on the basis of sexual orientation. The purpose of this memorandum is to stimulate some thought, and possibly action, towards developing a policy regarding the treatment of same sex partners. By doing so, we may ward off some challenges against us, or if they do arise, we may have at least established a basis for determining how we wish to respond. Given the inclination of the Human Rights Commission to broaden the application of human rights wherever possible, we should anticipate that any challenge against us would not stop with the Human Rights Commission, and we would have to be prepared to go to court.
2. The Canadian Human Rights Act forbids discrimination on the basis of sex. Sexual orientation is not listed, however, as one of the 10 specific grounds on which discrimination is forbidden. Recently, however, the Federal Court ruled in favour of an applicant, a prisoner, who sought conjugal visits by his/her same sex partner. In reaching this decision the court determined that discrimination on the basis of sexual orientation is “analogous” to discrimination on the basis of sex, and is therefore covered by the Human Rights Act. The Solicitor General’s Department is appealing the case to the Federal Court of Appeal.
3. There may be cases within the public service where specific changes in policies and procedures have been made to prevent discrimination on the basis of sexual orientation. It is those instances, however, where allegations of discrimination have been made and redress sought through the Human Rights Commission and courts which come to our attention. In addition to the case noted above, another case is working its way through the courts which involves the request of a federal government employee for bereavement leave to attend the funeral of the father of a same sex partner. A third case, although not originating within federal jurisdiction, pertains to the request to consider a same sex partner as a spouse for OHIP purposes. Two other cases involve personnel dismissed from the Armed Forces for homosexuality. One case was settled out of court; the other is proceeding to court. The above would indicate that a relatively hard line toward sexual orientation has been taken within the Government. The Department of Justice is drafting a policy paper on sexual orientation, which may eventually result in a government policy. In the interim, however, we should proceed with consideration of the areas where the Department could be challenged, and how we might respond.
4. The Department is most likely to face challenges of discrimination on the basis of sexual orientation because we do not provide FSD benefits to same sex partners. Another potential challenge could come from any discrimination on the basis of sexual orientation in the assignment process. This raises a third question as to whether we would request diplomatic privileges and immunities for a same sex partner of an employee, and how we would respond to such a request from another country involving the assignment of their personnel to Canada. The following attempts to outline the various
issues involved in these topics.
FSDs
5. What action would be required to make the FSDs applicable to the same sex partners of employees? This would essentially revolve around a change in the definition of spouse (or dependent) to include a same sex partner. Who would have authority to make such a change (Treasury Board?), and under what circumstances? Are there other factors which need to be taken into account? Comments by ABM would be appreciated.
ASSIGNMENTS
6. The assignment of same sex couples to some countries would not be desirable. This could be for security reasons in some instances, or for other operational reasons in other countries. For example, a country which did not grant security clearances to homosexuals might find it difficult to share information with a homosexual, regardless of the fact that we did not consider sexual orientation to be a factor in granting security clearances. The mores, laws or customs of some countries would also hinder the effectiveness of a homosexual employee. The Human Rights Act provides for situations such as these, and in essence permits discrimination if there are bona fide occupational requirements. We would have to be prepared to defend any action we took, however, before the Human Rights Commission and if necessary the appropriate court.
7. Homosexuality was one of the factors taken into consideration when we developed the “‘“Test’ to determine whether limitations occasioned by societal limitations in a host country constitutes a bona fide occupational requirement in the assignment of personnel”. While it is clear that there would be no problems in assigning homosexuals and same sex couples in some countries, it is also clear that problems could arise in others. We at one time had considered the possibility of trying to establish a list of countries where it would be suitable to assign homosexuals. We decided, however, that this would not be practical, given the rapidity with which the information on which such a list was based could become dated. It also would have been necessary to obtain information from posts (and possibly they in turn from local officials) which might be better obtained in relation to a specific situation. In any case, the ‘test’ referred to above has been developed, and thus provides a basis on which decisions can be made.
STATUS AND RECIPROCITY
8. If we were to accept a same sex partner for the purpose of FSDs, the question could arise about the status of the partner in the country of accreditation. Would we leave the partner to fend for him/herself in obtaining entry to the country as a visitor/immigrant? Would we facilitate the entry, possibly going as far as seeking diplomatic status? Logically, and from a human rights point of view, it could be difficult to defend the inconsistency of accepting someone as a partner for FSD purposes but not facilitate the entry of the partner to the country of the employee’s accreditation, unless there were valid reasons (possibly legal) on which the inconsistency could be based. We would also have to be careful of the manner in which we might request status for an individual in those cases where we were not able to reciprocate. From an accreditation point of view in Canada, if the sending state duly recognized a same sex partner as “belonging to the family of a member of the mission” (Article 10.1 of the Vienna Convention), and identified the individual as such we could accept him/her as such. Similarly, there is nothing in our Diplomatic Privileges and Immunities Act which would prevent us from extending diplomatic privileges and immunities to same sex partners of diplomatic members of a mission. Problems could arise, however, with administrative and technical personnel accredited to Canada, and with consular personnel. In these cases, the Immigration Act and Regulations would apply, and I understand they do not provide for same sex partners as a member of a family unit. While long term visitor visas and work permits could be issued, such action would be
dependent on the discretion of Employment and Immigration.
. We would appreciate comments on the above as well as other
issues which should be taken into account in considering this
Memorandum from ADA to ACB/ABM/APD/APC/APT/APG/APSA/JDS/XDC/ABK: “Sexual Orientation”, ADA-0092, 5 February 1990
The following amplifies the information contained in our memorandum under reference [ADA 0015 of 5 January 1990], and may be useful in our consideration of sexual orientation as it affects our personnel operations.
2. In October 1985, the House of Commons Subcommittee on Equality Rights presented a report, Equality for All, in which it recommended, inter alia, that the Canadian Human Rights Act be amended to add sexual orientation as a prohibited ground of discrimination. In its 1986 response, Toward Equality, the Government stated that it would take whatever measures are necessary to ensure that sexual orientation is a prohibited ground of discrimination in relation to all areas of federal jurisdiction. This therefore sets out a policy framework in which we can consider the issues raised earlier. Given the cases involving the government outlined in the memorandum under reference, however, it would appear that implementation of such a policy is not being pursued with 3. In our memorandum under reference we noted that the Department of Justice was drafting a policy paper on sexual orientation. In fact it is a draft memorandum to cabinet, in which it is proposed that the Canadian Human Rights Act be amended to include sexual orientation as a prohibited ground of discrimination. [Ed. note: the Canadian Human Rights Act was not formally amended until 1996 to bar discrimination on the basis of sexual orientation, five years after the Supreme Court had ruled that its provisions and those of the Charter of Rights and Freedoms applied to sexual orientation in spite of the absence of explicit language to that effect.] It would therefore appear that, whether by amendment of an Act of Parliament, or court decisions involving existing legislation, we shall have little choice but to change procedures or practices which discriminate on the basis of sexual orientation. The question then becomes one of how we govern our actions in the interim. While we can delay any action until such time as we may be challenged, we should be prepared to make decisions expeditiously when required so that we could avoid any undesirable publicity or unnecessary stress for employees.
Originally published in bout de papier, Vol. 30, No. 3 (2018), pp. 42–44. Read the rest of this issue →
