T-1812-89
Timothy Veysey (Applicant)
v.
Commissioner of the Correctional Service of
Canada (Respondent)
INDEXED AS: VEYSEY V. CANADA (COMMISSIONER OF THE
CORRECTIONAL SERVICE) (T.D.)
Trial Division, Dubé J.—Ottawa, October 31 and
November 3, 1989.
Constitutional law — Charter of Rights — Equality rights
— Sexual orientation — Refusal to allow penitentiary inmate
to participate in Private Family Visiting Program with homo
sexual partner violation of Charter, s. 15 right — Applicant
alleging denial of benefit available to heterosexual inmates
discrimination on basis of sexual orientation - Sexual orien
tation not prohibited ground listed under Charter, s. 15 but
analogous — Common characteristics of enumerated grounds
including immutability of attribute and victimization due to
prejudice.
Constitutional law — Charter of Rights — Limitation
clause — Refusal to allow penitentiary inmate to participate
in Private Family Visiting Program with homosexual partner
violation of right under Charter, s. 15 — Not within s. 1
limitation — Desirable goal of facilitating eventual reintegra-
tion into society not furthered by denying applicant most
supportive relationship — Allegations concerning danger to
applicant and threat to good order of institution not proven —
Insufficient to overcome burden to show violation of right
justified — Application of proportionality test indicating
reduction of risk to applicant not difficult.
Penitentiaries — Refusal to allow inmate to participate in
Private Family Visiting Program with homosexual partner
denial of rights under Charter, s. 15 — Not within s. I
limitation — Desirable goal of facilitating convict's eventual
reintegration into society not advanced by denial of most
supportive relationship — Threat to peace and good order of
institution not proven — Application of proportionality test
indicating reduction of risk to applicant not difficult.
This was an application for certiorari to quash the refusal to
allow the applicant to participate in Warkworth Institution's
Private Family Visiting Program with his homosexual partner
and mandamus requiring that the application be reconsidered
in accordance with Charter, section 15. The program allows
extended private visits between inmates of federal penitentiaries
and members of their families. Its goal is to preserve family ties
and to prepare inmates for their return to life outside the
custodial setting. Eligible family members include wives, hus
bands and common-law partners. The respondent maintained
that common-law partners did not contemplate two persons of
the same sex and that the application had been denied because
the person nominated for a proposed visit was not within a class
of listed relatives. The applicant's position was that he had been
discriminated against based upon his sexual orientation, con
trary to the Charter, section 15.
Held, the application should be allowed.
The applicant's right to equality had been violated. Although
sexual orientation was not a prohibited ground specified in
section 15, discriminatory treatment infringes section 15 if it is
based on grounds "analogous" to those specifically enumerated.
In order to identify the characteristics which are analogous to
the prohibited grounds of discrimination enumerated in section
15, the social, political and legal context had to be considered.
At least two provinces and one territory have enacted legisla
tion which expressly includes sexual orientation as a prohibited
ground of discrimination. A House of Commons Parliamentary
Committee on Equality Rights has recommended that sexual
orientation be included as a prohibited ground in the Canadian
Human Rights Act. Most of the enumerated prohibited
grounds of discrimination concern more or less immutable
characteristics. Presumably, sexual orientation involves some
level of immutability. Another feature common to the enumer
ated grounds is that the individuals or groups in question have
been victimized and stigmatized throughout history because of
prejudice. This characteristic would also apply to those who
have deviated from accepted sexual norms.
The denial of the applicant's rights did not fall within such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society (Charter, section 1).
The desirable goal of preparing inmates for their return to life
in the community through preservation of their most supportive
relationships was not furthered by denying the applicant access
to his most supportive relationship. Successful reintegration
into the community would benefit both the inmate and the
community. The Deputy Warden's opinion that placing the
applicant on the eligibility list could jeopardize his safety and
the peace and good order of the institution was not sufficient to
overcome the burden upon the respondent to show that the
violation of right was justified. Furthermore, there was some
evidence contradicting the Warden's opinion. In applying the
proportionality test (which requires balancing the nature of the
right affected with the extent of the infringement and the
degree to which the limitation furthers a desirable goal), it
appeared that the respondent could reduce any risk to the
applicant's safety by maintaining the confidentiality of the
applicant's participation in the program. There was no evidence
that to do so would present any difficulty to the administration
of the institution.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 1, 15.
Canadian Human Rights Act, R.S.C., 1985, c. H-6.
Charter of Human Rights and Freedoms, R.S.Q. 1977, c.
C-12, s. 10.
Human Rights Act, S.Y. 1987, c. 3, s. 6.
Human Rights Code, S.M. 1987-88, c. 45, s. 9(2).
Penitentiary Act, R.S.C., 1985, c. P-5, s. 37(3).
Penitentiary Service Regulations, C.R.C., c. 1251, s. 27.
CASES JUDICIALLY CONSIDERED
APPLIED:
Andrews v. Law Society of British Columbia, [1989] 1
S.C.R. 143; [1989] 2 W.W.R. 289; R. v. Turpin, [1989]
I S.C.R. 1296; (1989), 48 C.C.C. (3d) 8; 69 C.R. (3d)
97; 96 N.R. 115.
AUTHORS CITED
Canada. House or Commons. Report of the Parliamen
tary Committee on Equality Rights: Equality for All.
Ottawa, Queen's Printer, 1985 (Chair: Patrick Boyer).
COUNSEL:
Elizabeth Thomas for applicant.
John B. H. Edmond for respondent.
SOLICITORS:
Elizabeth Thomas, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
DuBÉ J.: The applicant, an inmate at Wark-
worth Institution, Northumberland County,
Ontario, applies for writs of certiorari and man-
damus pursuant to the respondent's refusal of his
application to participate in the Private Family
Visiting Program at the institution with Mr. Leslie
Beu. The latter is the applicant's homosexual
partner.
The applicant first applied to participate in the
program on June 14, 1988. He was refused at all
levels of grievance. On January 31, 1989, the
respondent denied the grievance in these terms:
Existing policy does not support your wish to have the private
family program extended to common-law partners of the same
sex. This fact, notwithstanding, you have raised an important
policy question which merits a much more intense examination.
Such an examination will continue at National Headquarters
and a decision on the question you raised will be handed down
sometime in the near future.
For the present, your grievance is denied.
The program is described in a booklet published
by Correctional Service Canada. The introduction
reads as follows:
Private Family Visiting is a program established by The
Correctional Service of Canada to provide eligible inmates of
federal penitentiaries with the privilege of having extended
private visits with members of their families.
The goal of the program is the maintenance of family ties
and the preparation of inmates for their return to life in the
community outside the penitentiaries.
The booklet outlines the qualifications for eligi
bility to the program. It is common ground that
the applicant meets the requirements, except for
his choice of a partner to participate in it. The
booklet further describes the members of the
family who are eligible to participate as follows:
The Family
The following family members are eligible to participate in
the program: wife, husband, common-law partners, children,
parents, foster-parents, brothers, sisters, grandparents and, in
special cases, in-laws.
The applicant alleges that he applied to partici
pate in the program with his homosexual partner
because he wishes to maintain their relationship
throughout his incarceration, and because he
believes that his successful reintegration into socie
ty will depend to a very great extent on the
continuing support of persons in the community:
the applicant's relationship with Mr. Beu is his
closest and most supportive relationship in the
community. He argues that he has been denied a
benefit available to other inmates of a heterosexual
orientation and that the basis of the denial is his
own sexual orientation. He claims that such a
denial is a violation of his rights under section 15
of the Canadian Charter of Rights and Freedoms
[being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)]
which reads:
15. (1) 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.
(2) Subsection (1) does not preclude any law, program or
activity that has as its object the amelioration of conditions of
disadvantaged individuals or groups including those that are
disadvantaged because of race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
Subsection 37(3) of the Penitentiary Act
[R.S.C., 1985, c. P-5] authorizes the Commission
er to make rules to be known as "Commissioner's
directives" for the custody, treatment and disci
pline of inmates and the good government of peni
tentiaries. Section 27 of the Penitentiary Service
Regulations [C.R.C., c. 1251] provides that the
visiting privileges permitted to inmates shall be
calculated to assist in the reformation and
rehabilitation of the inmate.
Paragraph 19 of the Commissioner's Directive
770, entitled "Visiting", provides that the Deputy
Commissioner shall establish a list of relatives
considered eligible for the Private Family Visiting
Program.
The respondent submits that these classes
include (with the exception of foster-parents, who
are in loco parentis) only persons related to the
inmate by consanguinity, marriage (including
common-law marriage) or affinity. He avers that a
common-law marriage is between a woman and a
man and not between two persons of the same sex:
there is no common law applicable to relationships
of cohabitation between persons of the same sex.
He argues that the appellation "common-law part
ners" in the program is synonymous with common-
law spouses and does not include persons who live
together in a homosexual relationship: the appli
cant cannot have the man with whom he formerly
lived approved for a private family visit, not
because of the applicant's sexual orientation, but
because the person he has nominated for the pro
posed visit is not his spouse or otherwise within one
of the classes of listed relatives.
The applicant does not dispute these proposi
tions. He agrees that his homosexual partner is not
his spouse. He recognizes that his partner does not
fit under "the family" as described in the program.
He says that the program is discriminatory
because it excludes homosexual relationships and,
therefore, that his application has been denied on
the basis of his sexual orientation.
There are no cases directly on point. Sexual
orientation is not a ground specifically enumerated
in section 15 of the Charter. However, it is now
well established that discriminatory treatment will
infringe section 15 if it is based on grounds "analo-
gous" to those specifically enumerated in that
section of the Charter (see Andrews v. Law Socie
ty of British Columbia).'
In order to identify the characteristics which are
analogous to the prohibited grounds of discrimina
tion enumerated in section 15, the social, political
and legal context ought to be considered. In R. v.
Turpin, 2 Wilson J. of the Supreme Court of
Canada said at pages 1331 and 1332 S.C.R.:
In determining whether there is discrimination on grounds
relating to the personal characteristics of the individual or
group, it is important to look not only at the impugned legisla
tion which has created a distinction that violates the right to
equality but also to the larger social, political and legal context.
McIntyre J. recognized in Andrews that the " `enumerated
and analogous grounds' approach most closely accords with the
purposes of s. 15 and the definition of discrimination outlined
above" p. 182 and suggested that the alleged victims of dis
crimination in Andrews, i.e., non-citizens permanently resident
in Canada were "a good example of a 'discrete and insular
minority' who came within the protection of s. 15" (p. 183).
Similarly, I suggested in my reasons in Andrews that the
' [1989] 1 S.C.R. 143; [1989] 2 W.W.R. 289.
2 [1989] 1 S.C.R. 1296; (1989), 48 C.C.C. (3d) 8; 69 C.R.
(3d) 97; 96 N.R. 115.
determination of whether a group falls into an analogous
category to those specifically enumerated in s. 15 is "not to be
made only in the context of the law which is subject to
challenge but rather in the context of the place of the group in
the entire social, political and legal fabric of our society" (p.
152). If the larger context is not examined, the s. 15 analysis
may become a mechanical and sterile categorization process
conducted entirely within the four corners of the impugned
legislation. A determination as to whether or not discrimination
is taking place, if based exclusively on an analysis of the law
under challenge is likely, in my view, to result in the same kind
of circularity which characterized the similarly situated simi
larly treated test clearly rejected by this Court in Andrews.
In the above-mentioned Andrews case, McIntyre
J. (at pages 174-175) defined the term "discrimi-
nation" as follows:
There are many other statements which have aimed at a short
definition of the term discrimination. In general, they are in
accord with the statements referred to above. I would say then
that discrimination may be described as a distinction, whether
intentional or not but based on grounds relating to personal
characteristics of the individual or group, which has the effect
of imposing burdens, obligations, or disadvantages on such
individual or group not imposed upon others, or which with
holds or limits access to opportunities, benefits, and advantages
available to other members of society. Distinctions based on
personal characteristics attributed to an individual solely on the
basis of association with a group will rarely escape the charge
of discrimination, while those based on an individual's merits
and capacities will rarely be so classed.
In considering the entire legal and social fabric
of our present day Canadian society, it is proper to
consider provincial and territorial human rights
legislation which expressly includes sexual orienta
tion as a prohibited ground of discrimination. The
Charter of Human Rights and Freedoms of the
Province of Quebec' provides as follows, at section
10:
10. Every person has a right to full and equal recognition
and exercise of his human rights and freedoms, without distinc
tion, exclusion or preference based on race, colour, sex, preg
nancy, 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.
Discrimination exists where such a distinction, exclusion or
preference has the effect of nullifying or impairing such right.
[My underlining.]
3 R.S.Q. 1977, c. C-12, s. 10.
The Manitoba Human Rights Code 4 describes
the applicable characteristics at subsection 9(2):
9(2) The applicable characteristics for the purposes of
clauses (l)(b) to (d) are
(a) ancestry, including colour and perceived race;
(b) nationality or national origin;
(c) ethnic background or origin;
(d) religion or creed, or religious belief, religious association
or religious activity;
(e) age;
(f) sex, including pregnancy, the possibility of pregnancy, or
circumstances related to pregnancy;
(g) gender-determined characteristics or circumstances
other than those included in clause (f);
(h) sexual orientation;
(i) marital or family status;
(j) source of income;
(k) political belief, political association or political activity;
(I) physical or mental disability or related characteristics or
circumstances, including reliance on a dog guide or other
animal assistant, a wheelchair, or any other remedial appli
ance or device. [My underlining.]
The Human Rights Act of the Yukon Territory'
lists the prohibited grounds under section 6, as
follows:
6. It is discrimination to treat any individual or group
unfavourably on any of the following grounds:
(a) ancestry, including colour and race,
(b) national origin,
(c) ethnic or linguistic background or origin,
(d) religion or creed, or religious belief, religious association, or
religious activity,
(e) age,
(f) sex, including pregnancy, and pregnancy related conditions,
(g) sexual orientation,
(h) physical or mental disability,
(i) criminal charges or criminal record,
(j) political belief, political association or political activity,
(k) marital or family status, .... [My underlining.]
The House of Commons Parliamentary Com
mittee on Equality Rights released a report in
October 1985 entitled "Equality For All", in
which it recommended that sexual orientation be
included as a prohibited ground in the Canadian
4 S.M. 1987-88, c. 45, s. 9(2).
5 S.Y. 1987, c. 3, s. 6.
Human Rights Act [R.S.C., 1985, c. H-6].
Recommendation 10 reads (at page 30):
10. We recommend that the Canadian Human Rights Act be
amended to add sexual orientation as a prohibited ground of
discrimination to the other grounds, which are race, national or
ethnic origin, colour, religion, age, sex, marital status, family
status, disability, and conviction for an offence for which a
pardon has been granted. [My underlining.]
Most of the grounds enumerated in section 15 of
the Charter as prohibited grounds of discrimina
tion connote the attribute of immutability, such as
race, national or ethnic origin, colour, age. One's
religion may be changed but with some difficulty;
sex and mental or physical disability, with even
greater difficulty. Presumably, sexual orientation
would fit within one of these levels of immutabili
ty. Another characteristic common to the enumer
ated grounds is that the individuals or groups
involved have been victimized and stigmatized
throughout history because of prejudice, mostly
based on fear or ignorance, as most prejudices are.
This characteristic would also clearly apply to
sexual orientation, or more precisely to those who
have deviated from accepted sexual norms, at least
in the eyes of the majority.
Of course, the purpose of these proceedings is
not to pass moral judgment on sexual orientation,
but to decide whether or not the rights of the
applicant have been violated under section 15 of
the Charter on the ground that he was excluded
from the program because of his sexual orienta
tion. Again, sexual orientation is not a prohibited
ground listed under section 15 but, in my view, it is
an analogous ground recognized by the above pro
vincial and territorial human rights acts, as well as
the House of Commons Parliamentary Committee
on Equality Rights. In my view, the applicant's
rights have been violated.
Having determined that his right to equality has
been infringed as a result of discrimination based
on an analogous ground under section 15, I must
now turn to section 1 of the Charter and find
whether the denial of his right falls within such
reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic
society.
The first question to be resolved is whether the
purpose of this differential treatment based on
sexual orientation is to further a desirable social
goal. Bearing in mind that a goal of the program is
the preparation of inmates for their return to life
in the community through the preservation of their
most supportive relationships, this desirable goal is
not furthered by denying the applicant's access to
his most supportive relationship. Obviously, the
successful reintegration into the community of this
inmate would be a benefit not only to him, but to
the community as a whole.
The respondent argues that the granting of the
release sought would place the applicant in consid
erable personal danger and would threaten the
peace and good order of the institution within
which he is held. The Deputy Warden at Wark-
worth Institution filed an affidavit wherein she
states that it is her belief, "based on my knowledge
of the mores prevailing amongst inmates in penal
institutions, including a high regard for family
values and a strong belief in traditional morality,
coupled with a strict, harsh and retributive inmate
code, prevailing therein", that the applicant is now
at "some degree of risk". The risk is due to the
nature of his conviction, "particularly sexual
assault with a weapon upon a 15-year old male
and given the strong disapproval with which such
crimes are, in general, regarded by inmate
populations".
However, the applicant has been in prison in
Kingston . Penitentiary since January 15, 1988 and
was transferred to Warkworth Institution on Sep-
tember 7, 1989 and there is no evidence of any
retribution on the part of the other inmates.
The Deputy Warden goes on to state that the
placement of the applicant upon the eligibility list
for the program would put him at "very consider-
ably greater risk to his personal security, as well as
being a considerable risk to the peace and good
order of the Institution".
While the opinion of the Deputy Warden
deserves very serious consideration, that opinion is
not sufficient, in my view, to overcome the burden
upon the respondent to show that the violation of
right is justified. After all, the applicant himself
would know what risk he is taking. Moreover, he
filed the affidavits of three other inmates at Wark-
worth to the effect that the safety of inmates is not
compromised there because of their sexual orienta
tion. It must be borne in mind that Warkworth is a
medium security institution wherein the inmates
are not considered to present as much security risk
as at Kingston, a maximum security penitentiary.
The second justification criterion is the propor
tionality test of balancing the nature of the right
affected with the extent of the infringement and
the degree to which the limitation furthers a desir
able social goal. It appears to me that the respon
dent can reduce any risk to the safety of the
applicant merely by maintaining the confidential
ity of the applicant's participation in the program,
and for that matter, the confidentiality of the
participation of any and all inmates. No evidence
has been adduced to show that such an obvious
precaution would present any particular difficulty
to the administration and good order of the
institution.
Consequently, the decision of the respondent
denying the applicant's grievance is quashed and
the Commissioner of the Correctional Service is
ordered to reconsider the applicant's grievance in
accordance with the provisions of section 15 of the
Canadian Charter of Rights and Freedoms. Costs
of this motion to the applicant.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.