The Joint Select Cmt 2006 on The Charter of Rights - Freedom From Discrimination

Section 13(3)(i)


The provision in the bill as the proposed section (above) of the Constitution guarantees the right to freedom from discrimination on the grounds of:


Sex - male or female (as recommended by the previous committee in December 2001 on page 28 of the previous report.)
Race, place of origin, social class, colour, religion or political opinions


The word "sex" rather than "gender" which had been used in the Commission's draft was based on a proposal by The Coalition for Community Participation in Governance and was regarded as being the more appropriate word having regard to definitions of the words, sex and gender given in the Oxford Concise Dictionary. The words "that is to say male and female" were included to ensure that the word "sex" would not be interpreted to include sexual orientation.


Opposition members of this joint select committee however stated their preference for the word "gender" which they argued should replace the word "sex" and regarded the words "that is to say male and female" as inelegant an in any event unnecessary.


In response the reformulated was devised:

the right to freedom from discrimination on the grounds of
1). being male and female

It was reconsidered at the meeting of the Consultation group and was ascertained that the word "gender" is not invariably used in the International Human Rights instruments. The Universal Declaration of Human Rights, article 2 and the American Declaration of The Rights and Freedoms of Man, article 11 the word "sex" is used. It was then proposed to the committee that the suggested reformulation of the provision be adopted and the Committee agreed.

Consideration was given to same sex marriage in relation to the proposed section 13(3)(i). That issue was raised by the Lawyer's Christian Council in written submissions to the Committee in 2006 also with the National Church Alliance and Concerned Citizens. It was pointed out in those submissions that the same sex marriages were legalized in Canada by an act of Parliament which formalized certain decisions of the Canadian Courts in a number of cases including the 2003 decision by the Ontario Court of Appeal in the case of Halpern v Attorney General of Canada and the 2004 case of Catholic Civil Rights League vs Hendriks in which common law definition of marriage derived from the 1866 House of Lords decision in the case of Hyde vs Hyde as the revolutionary union for life one man and one woman to the exclusion of all others was held to be unconstitutional as contravening the equality provision in section 15(1) of the Canadian Charter.

the provision is as follows:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

It is clear from the decisions of the Canadian courts over the years having regard to the words "and, in particular" in section 15(1) of the Canadian charter, the grounds of discrimination enumerated in that provision namely, race, national or ethnic origin, colour, religion, sex, age or mental or physical disability, are not exhaustive and that grounds analogous to those enumerated are also covered by the provision. A ground which has been held to be analogous to the enumerated grounds is the grounds of sexual orientation.