Category Archives: Human Rights

Death and Homosexuality: The Unrecognized Genocides

Death and Homosexuality: The Unrecognized Genocides

Tom Henheffer

St. Thomas University

7 April 2009

There have been four distinct periods of crime committed against homosexuals in the past century. Homosexuals were victims of genocide during the holocaust. After this, they became victims of what some may call a “psychological genocide,” where the western medical world tried to wipe out their lifestyle. Currently, homosexuals are targeted for death and life imprisonment in over a dozen countries. In the future, some scholars fear that in utero testing, combined with research in the human genome project, and discrimination, will lead to the total destruction of homosexuality in some areas. Genocide has been a near constant for homosexuals in the 20th century, and it shows no signs of ending, but the international community has failed to recognize the plight of gay men and women. Homosexuals have no document in international law protecting them from discrimination, and sexual groups are conspicuously left out of the genocide convention. For justice to be served, the genocide convention must be modified, but it must be done so effectively, without becoming overbroad. The psychological genocide provides a good test for overbroadness.

This modification will be very difficult, it will have to be the end result of a long process of human rights advocacy and new human rights documents; many attitudes will have to be changed in the world before this can happen. But the convention must be modified so the genocide of Nazi Germany can be recognized, the criminality of homosexuality on pain of death or life imprisonment cam be eliminated, and human rights can become prepared to handle the future consequences of genetic research.

Homosexuality has been a part of human society since before recorded history. The first evidence of it in human culture comes from cave paintings and sexual toys from 12,000 BC. In western culture, homosexuality has always been synonymous with Greek culture. In 620 BCE Sappho was born (Stuart 5). This female poet, from the island of Lesbos, is believed to have been the first female writer to express desire for the same sex. The term lesbian also comes from the island on which she lived. Socrates, born in 470 BCE, was one of the world’s most influential philosophers, and he was known to be bisexual (5). The warrior Spartan culture also encouraged sexual relationships among men. Even Leonardo da Vinci (6) and Oscar Wilde (Stonewall 1) were both tried and persecuted for homosexuality.

It has only been in more recent times that homosexuals began to undergo systematic and government sanctioned discrimination. As Doris Bergen states in War and Genocide, “in the ancient world certain types of intimacy between people of the same sex did not carry any stigma or preclude sexual relations with members of the opposite sex,” (22). 1290 saw the “first mention in English common law of a punishment for homosexuality,” (Stonewall 1). Ten years later there was a “treatise in England prescribed that sodomites should be burned alive” (1). However, the term homosexual was not coined until 1869 in Germany (1). This discrimination and punishment came to a head in Nazi Germany.

Germany was not a particularly tolerant place before WWII. Homosexuality was outlawed in 1871, and remained so until 1970 (22). But after WWI Germany developed a vibrant, and some might say outspoken, gay culture (Bergen 23). It had a large homosexual club scene and was host to the Institute for Sexual Research, run by the homosexual gay rights activist Magnus Hirschfeld (23). The publicity and openness surrounding the gay scene in Germany may have been part of its downfall. As Bergen says, “for others it seemed to represent the decadence of a society that had abandoned its traditional values,” (23). This meant that homosexuals could be easily victimized, and that they would have no friends when the Nazis came to power.

Hitler himself seemed to have few problems with gay men before the war. His long-time, right-hand man, Ernst Rohm, was openly gay. He was the head of the 2.5 million strong SA (70-71). It was not until the morality of Rohm’s sexual preferences could be expediently used against him that Hitler chose to begin a campaign of hatred against homosexuals. It was a familiar pattern Hitler used, building support for his cause by inciting hatred against marginalized groups (23).

The Nazi persecution of homosexuals started suddenly and escalated rapidly. With the overt and vibrant gay scene homosexuals were an easy target. Bergen says, “many Germans regarded homosexuality as deviant and decadent and urged their government to crack down,” (57). Thanks to the law of 1871, homosexuals were also criminals, and the Nazi’s considered gay public officials to be easily corruptible targets for blackmail (57). Bergen says that Nazis, “struck in dramatic, decisive ways, but they always tested the public response to each move before proceeding further,” (57). This was a litmus test for Hitler; he could start his campaign of hate by attacking the most easily marginalized group in Germany. Then it would be easy to escalate and attack other groups, Roma, Jews, etc. In this way, the persecution of homosexuals was instrumental in bringing about the preconditions for the holocaust and World War II.

The raids started in 1933. Nazis closed down gay clubs and arrested those inside, sending them to the concentration camp at Dachau (66). Students then destroyed Magnus Hirschfeld’s Institute for Sexual Research. As Bergen puts it, “the German public was indifferent or cheered such offensives,” (58). Hitler saw his people did not care, and he could continue with his plan.

The Night of Long Knives came in June of 1934 (70). Hitler used it to remove Rohm, as he was afraid Rohm was gaining too much power. Many high ranking Nazi officials were murdered, anywhere from 150 to thousands. It was called “a cleanup of the movement, a necessary measure against decadence and perversion,” (71). Hitler got a telegram from President Hindenburg congratulating him, his military leaders supported the move, the German people did not care and the German government even made the actions retroactively legal (71). Similar tactics were later used to oust Frieherr Von Fritsch, the head of the German army, in 1936 (80). All of this was able to happen because of the culture of discrimination in Germany; the murders were wrapped in the idea of restoring morality, of removing homosexuals, the decadent and deviant. Gays had no place in the Third Reich; they refused to do their duty and reproduce. This is of course extremely ironic. If homosexuals did not reproduce, they could not possibly be a threat to future generations. But that did not matter to the Nazis.

As war continued, more homosexuals were put into concentration camps. Nazis called them antisocial parasites and enemies of the state (US Holocaust Memorial, Denunciations). They relied on denunciations, and then used torture to force victims to denounce others (US Holocaust Memorial, Denunciations). The camps were difficult and often deadly for everyone interred, but they had especially brutal conditions for homosexual men. Marked with pink triangles (Bergen 189), gay men were marginalized even by their fellow inmates. There was a hierarchy in concentration camps; the bottom was reserved for Homosexuals, Jews and Gypsies. Gays were isolated and tormented. They received especially harsh treatment from homophobic prisoners Nazis put in charge of them (189). They “suffered severely from torture, beating, and medical experimentation,” (192). And their situation would only get worse. [1]

Before the war, gay men were generally put in prisons under definite sentences. At the wars beginning, their sentences were expanded and they were moved to camps, at first for re-education, and later for labour and death. Unlike most other prisoners, gay men were sometimes able to leave some camps. They had the option of castration and reassignment to heavy labour or front-line duty (192). In one camp they would be released to labour duties if they renounced their sexuality and managed to “perform,” with a prostitute (192). But this did not change their status as victims of genocide, this seemingly preferable treatment was a ruse, it only changed the method the Nazis would use to destroy gays.

In 1942, there was a new, specific policy for dealing with homosexuals. It was called, “extermination through work,” (US Holocaust Memorial, Persecution and the War) and was directly issued by Heinrich Himmler, head of the Nazi SS. Although not the same method as the gas-chambers, this campaign had the same goal of eradication. It demonstrates a clear intent by the Nazis to wipe out homosexuals in Germany and its occupied territories.

In all 50,000 men were arrested for “charges related to homosexuality” (Bergen 191) during the Nazi regime. During the war approximately 5-15,000 were put in camps (US Holocaust Memorial, Protective Custody). About 5-7000 died during the war, probably half of them in concentration camps (Bergen 192). Although these numbers are low, it represents one of the highest per-capita death rates of prisoners in WWII at an estimated 60 per cent (192). Political prisoners suffered only 41 percent losses, Jehovah’s witnesses 35 percent, (192). Overall in Europe, 67 percent of Jews were murdered.

Unfortunately for homosexuals, their situation after the war frequently went unimproved. Prejudices against gays were still rampant in many countries. Homosexuality remained illegal in Germany until the 1960s (193). Bergen says, “illegality and social stigma account for the silence that shrouded the treatment of gay men in Nazi Germany until the 1970s and 1980s,” (193). As of 1997, homosexuals had still not received an official apology from the German government (Benetto). It is incredible to think that a country so obsessed with not reliving the mistakes of its past could, for decades, deny the victimization of an entire group of people during WWII. Even worse than this, many gay men were liberated from concentration camps, then tried and sentenced again by occupiers, and thrown into other prison camps.

It is easy to analyze the human rights situation of homosexuals in Nazi prison camps; there were no rights. Basically every tenant of every human rights convention and declaration was violated by the Nazis. The human dignity of those men and woman, dignity being the source of all rights, was as close to being nullified as possible. They had no freedoms or liberties, no freedom of thought, speech or assembly, no security of the person, no freedom of religion; they were as dehumanized as any people have ever been. The only source of dignity these prisoners had was from the fact that they were human beings. Their rights were clearly violated, and a horrible crime was committed against them. But the question remains, did homosexuals undergo genocide during WWII?

The United Nations Convention on the Prevention and Punishment of the Crime of Genocide (herein referred to as the genocide convention) defines genocide as, “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such,” (Article II). These acts are,

(a)    Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group (Article II)

The order from Heinrich Himmler that homosexuals were to be exterminated through work clearly shows and intent to destroy on behalf of the Nazi government. This meets the first requirement of the genocide convention. Homosexual men were killed, caused serious bodily and mental harm, and they were placed in situation calculated to destroy them, especially when they were sent to labour camps. This easily meets three of the 5 conditions for genocide in article II. So it seems that the case for calling this a genocide is very clear cut.  However, in order to be a victim of genocide, the genocide convention says that one must be a member of a targeted “national, ethnical, racial or religious group” (Article II). Sexual groups are not included. This means that the treatment of homosexuals during the holocaust is not recognized as such under international law. But what happened to homosexuals was genocide. The lack of recognition in international law is arbitrary, unjust and most likely a product of the prejudice against gays that still existed when the genocide convention was written (and which still exists in many places of the world today). The genocide convention is lacking and must be reformed so that this genocide is recognized, so that ongoing genocides can be stopped, and so possible future genocides can be prevented. However, this change must be done extremely carefully. In order for the genocide convention to remain effective, it cannot be overbroad. The aim of this essay is to further outline the position of homosexuals as victims of genocide, and to provide context and recommendations for creating effective human rights protections.

As evidenced above, homosexuality was not considered amoral, criminal or a disease until fairly recently in western culture. Gender identities were not always so rigid, but once they became stringent homosexuals were in for a world of trouble. After the common outlawing of homosexuality in western society, and after the genocide against homosexuals during WWII, came the psychological war on gays. This started when the Diagnostic and Statistical Manual of Mental Disorders (DSM), was published in 1952. Until the DSM was modified in 1973,

homosexuality was a certified psychological disorder by virtue of the fact that it was registered as such in the Diagnostic and Statistical Manual of Psychiatric Disorders (DSM), the primary diagnostic manual for the American Psychological Association and the American Psychiatric

Association. (Rixecker 115)

As a disorder, psychologists treated homosexuality like cancer, something in need of a cure. Non-heterosexual behavior was considered to be an affliction that people could suffer from (Rixecker 114). The disease had to be cured, so people could again “lead a normal, useful life” (Rixecker 115). There was an argument over how to treat homosexuality; Scientists were not sure if homosexuality was due to, “genetic mutation- or poor environmental conditions-e.g. psychological disorders brought on due to a poor childhood” (Rixecker 115). This led to many different forms of treatment under the blanket label of “conversion therapy” (Rixecker 115. Treatment methods included, “masturbatory reconditioning and aversion therapy. … social skills training, cognitive restructuring, hypnosis, (and) abstinence training” (Cramer 95). Some treatments went so far as to use, “electroconvulsive therapy, surgical interventions (e.g., lobotomy, castration, ovary removal), and hormonal therapy (e.g., steroids, androgens…” (Cramer 95). Today, many of the less invasive techniques are still used, and the frequency of religious techniques (like prayer and threats of damnation) has greatly increased (Cramer 95). Unfortunately, there are no clear numbers on the amount of conversion therapies performed at any time in history (Cramer 95).

The most extreme forms of conversion therapy are very obviously harmful, and sometimes in a physical as well as mental way. However, less extreme forms are still known to cause harm. Firstly, they are almost never successful, instead they just “decrease the overall sexual arousal of participants” (Cramer 101). They are also known to increase shame, conflict, fearfulness and vulnerability to conformity. More severe (but still very common) side-effects include, “long-term sexual dysfunction, lowered self-esteem, loss of family and religiosity, and elevated depression and anxiety” (Cramer 101).

As previously mentioned, homosexuality is no longer categorized as a disease in the DSM. The American Psychological Association (APA) and the American Psychiatric Association are generally both opposed to conversion therapy (Cramer 94). However, conversion therapy still continues, and has not been specifically outlawed by the APA, thanks to lobbying from some pro-conversion therapy members (Rixecker 116). Many doctors still believe in conversion therapy and are constantly lobbying the APA to loosen its guidelines toward the practice.  The strongest lobbyist for the re-mainstreaming of conversion therapy is the National Association for Research and Therapy of Homosexuality (NARTH). The organization’s goals and ideas are not based on fact or justice, but it is still a powerful force. As Rixecker says, “NARTH was instrumental in challenging the American Psychological Association’s recent attempts at imposing a professional sanction on those who perform conversion therapies” (116).

The conversion therapy of the 50s through to today is not an isolated incident. It reveals a culture of discrimination against homosexuals that has led to stigma and violence. During that time psychologists attempted to eradicate homosexuality. Like annihilating cancer, homosexuality was a blight that doctors tried to erase. In a culture like this, the rights of gay men and women were often violated. The right to security of the person under article 3 of the UDHR is violated by the harm caused by conversion therapy. Some forms of CT, such as aversion therapy, which often leads to sexual dysfunction, or electroshock, or removal of parts of the body, can be easily labeled as cruel, inhuman or degrading treatment under article 4. The attempt to change sexual orientation is an encroachment on the freedom of thought under article 18. Article 7 is violated by the clear discrimination against homosexuals evident in the DSM’s definition of homosexuality as a disease, and article 8 is violated because no effective remedy for these crimes has ever been given to homosexuals. Other rights are also violated under the UDHR and other international human rights treaties, but they will not be discussed for the sake of brevity.

It is clear that CT and the culture around it led to many violations of the rights of homosexuals. But the real question is whether or not this psychological attempt to eradicate homosexuality can be called genocide. The answer is no. As a group, there was no “intent to destroy, in whole or in part” (Genocide Convention Article II) homosexuals. The target was homosexuality itself. During WWII Nazis tried to destroy Jews, not just Judaism, and homosexuals, not just homosexuality. Also, none of the five conditions of the genocide convention were met by the “psychological genocide”. The third condition is, “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” (Article II). The APA did try to bring about the destruction of the condition of homosexuality, but again, not homosexuals themselves. As such, defining this era in western medicine as genocidal goes too far. It is not true to the idea of the genocide convention.  Modifying the convention to include this incident would certainly lead to over broadness and a sharp decrease in effectiveness. But research into the psychological non-genocide is still useful, as it can be used as a test to prevent over broadness when modifying the genocide convention. It proves that there is no reason to modify the five acts in article II.

Behind the idea of homosexuality as a disease is the concept that it is somehow immoral, decadent, or abnormal. This concept has led many countries to criminalize sodomy and lock up “practicing” homosexuals. Same sex unions are legal in only five countries in the world, sodomy is illegal in 70 (Amnesty International love, Hate and the Law). This is a problem inherent throughout the world; sodomy was illegal in many US states until the laws were repealed by the Supreme Court in the 2003 case Lawrence vs. Texas (, USA Laws). Sodomy often has a broader definition then sexual acts between same-sex couples, but frequently is only enforced against homosexuals (, USA Laws). These laws reveal a culture of hatred and discrimination, but are not genocide. However, the argument for a genocide against homosexuals can be made in the case of thirteen countries; Afghanistan, Bangladesh, India, Iran, Mauritania, Myanmar, Nigeria, Pakistan, Qatar, Saudi Arabia, Somalia, Sierra Leone, Sudan, Uganda, United Arab Emirates, and Yemen.  Each of these countries has not only outlawed homosexuality, but has made it punishable by death or life imprisonment (Amnesty International). Also, Islamic Sharia law, which is practiced in parts of many countries, carries a penalty of death by stoning for an act of homosexual sex (Gay Law Net, Nigeria).

Genocides may also be ongoing in other places. Although homosexuality is not punishable by death or life imprisonment in the country, there have been claims made that the government of Columbia has specifically targeted homosexual men for destruction. The murders are carried out by the Columbian police force, who either kill or disappear men known to be gay (Rixecker 122).  In the late 80s, 328 gay men were killed in the city of Medellin alone (Rixecker 122). A male prostitute is quoted as saying, “the only program the government has for (gay men) is a program to kill us” (122). There is also an unlabeled genocide ongoing in Iraq.  Shia death squads are rampantly murdering men suspected of being gay and children forced into same-sex prostitution (Copestake). The murders are considered honor killings, and as such are not punishable by Iraqi law (Copestake). The killings began when a fatwa against homosexuals was issued by Grand Ayatollah Ali al-Sistani  (Ireland).

This is an example of a law enacted against homosexuals from Uganda. Section 145 of the penal code says that anyone who:

(a) has carnal knowledge of any person against the order of nature;
(b) has carnal knowledge of an animal; or
(c) permits a male person to have carnal knowledge of him or her against the order of nature, commits an offence and is liable to imprisonment for life.

It is interesting to note that under this law, two consenting adult men engaging in sexual relations are committing a crime equal to bestiality. That dehumanizing comparison is a common feature of the laws in many of these countries. Laws like this help to foster discrimination, and create an environment where dehumanization makes genocide possible.

A government legislating death or life imprisonment onto a distinct social group clearly reveals “intent to destroy, in whole or in part” (Genocide Convention Article II). The same intent is revealed in the gay fatwa in Iraq, and possibly the first-person accounts of police murders in Columbia. The death penalty meets the Genocide convention’s first condition, “killing members of the group” (Article II A), as do the killings in Iraq and possibly those in Columbia. Life imprisonment meets the second condition, “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” (Article II B), as the ultimate end of life imprisonment is death.

Unfortunately for the victims of these crimes, their deaths and sentences do not meet the standards of international law. Again, this is because homosexuals are not, as a group, members of “a national, ethnical, racial or religious group” (Article II), as required by the genocide convention. Once again, homosexuals are left in the dark without any defense in the international community. This is not justice; it is an arbitrary and prejudicial exclusion. These genocides are a severe threat to human dignity, and are crimes against humanity that, at least indirectly, affect every person on the planet. The government legislation itself is a violation of that right from which all others flow, the right to human dignity. When governments specifically targeted  Jews in Germany or Tutsis in Rwanda for death, the actions were labeled genocide. But when a government targets homosexuals, who have no choice in deciding their sexuality, just as a person cannot choose race, they are not protected by the genocide convention. This makes no sense. Like political groups, homosexuals are left out. But unlike political groups, homosexuals are much more vulnerable. They are too small a minority to band together and fight and they cannot choose to stop being gay.

There are some possible justifications for not including sexual groups in the genocide convention, but none hold any water. The first justification is that, unlike Jews or Tutsis, the child of a homosexual will not necessarily be a homosexual. This is irrelevant to the genocide convention, as the effectiveness of genocide does not matter, only the “intent to destroy, in whole or in part” (Article II). The second justification is that, unlike destroying all Jews or Tutsis, homosexuality would still exist even if all homosexuals were killed in a certain area. In the next generation, 6-10 percent of people would still be gay, as the causes of homosexuality are probably not entirely hereditary, and even if they are, straight people can still have gay children. But contrary to this justification is that same fact, the effectiveness of genocide does not matter, only intent is important in regard to international law. A possible third justification is that there simply aren’t enough homosexuals being killed to justify international intervention. This may be true; homosexuals are generally a small minority. But the size of targeted group makes no difference if the intent to destroy them is there. Also, including sexual groups in the genocide convention would create pressure for change outside of interventionist methods. Aside from a lack of international consensus, there is no reason to exclude homosexuals as victims. Their exclusion only allows genocides to continue, while making human rights impotent to prevent possible future genocides. And the future holds some very disturbing possibilities.

There is one final genocide left to discuss, the possible in utero genocide against homosexuals. This could be born out of increasing genetic and in utero research. It is thanks in large part to the Human Genome Project (HGP), which is an attempt to map the entire human genome (Rixecker 109). Rixecker says the project itself will ultimately “impact upon the scientific, medical, economic, political and cultural futures of all living and future human beings” (109). Of that fact there is no doubt. However, the way the HGP will impact humanity is debatable. The HGP has potential to lead to cures for certain types of cancer, cystic fibrosis, Parkinson’s, Alzheimer’s and many other diseases. However, genetic research has already been controversial; its identification of down syndrome being linked to a chromosome 21 trisomy, combined with prenatal genetic screening, has led to women being able to abort children with the genetic disorder (National Institute of Child Health and Human Development). There is a large ethical debate to be had around this type of research, a debate which could have serious consequences for sexual minorities.

Stephanie Rixecker, a human rights scholar and professor at Lincoln University, is very critical of the ethics surrounding genetic research and the HGP. She says there are not enough safeguards for the ethics of researchers. She says the laws and societal norms governing research are, “insufficient for protecting people who cannot defend themselves” (110). She also feels that, “ethics, law, policy, justice and human rights … are not sufficiently mature to handle and address the immediate (and long-term) consequences of the HGP” (109). Rixecker feels that in the end, economic interest may win out against moral and ethical interest (109). As the abortions resulting out of the test for Down syndrome demonstrate, the limits of morality are already being tested.

This ethical situation becomes even more interesting when it is turned toward sexuality. There is a division between scientists who feel sexuality stems from nature and those who feel it is biologically determined. However the standard today is generally that which is described in the DSM, that “human beings cannot choose to be either gay or straight” (115). This suggests that there is at least some genetic element to homosexuality, most likely combined with other factors such as in utero chemical balances, and influences a child receives as he or she grows up (118). Many genetic researches are attempting to prove that homosexuality is mostly biological, or at least that it is the result of a biological precondition. Often this is done with the reason of ending discrimination against gays and lesbians by proving their sexuality is “natural” (110). The problem is that proving homosexuality is biological will not necessarily end any discrimination, and finding the genetic markers that indicate a precondition for homosexuality may have serious ethical consequences.

Research into the Xq28 gene has shown a strong link to homosexuality in some men (Rixecker 110, footnote 3), which provides some strong evidence that homosexuality is indeed at least partially genetic.[2] Despite the many factors that may contribute to the development of sexuality, the genetic evidence is particularly striking. When this genetic knowledge is combined with reproductive biology and in utero screening, it is possible to detect and abort fetuses that have the Xq28 gene (or possibly other genes that have yet to be discovered). In the future “genetic alteration and ‘enhancement'” (110) may also be possible. This means that mothers, who can already conceivably abort fetuses with a genetic predisposition to homosexuality, may actually be able to modify fetuses to erase that predisposition. Additionally they could possibly, “through the use of preimplantation genetic diagnosis … embryo selection and cloning … and in vitro fertilization, pre-select for certain traits, including the lack of homosexuality” (110).  This obviously raises incredible ethical questions and could have serious consequences for the gay community. This is what Rixecker fears is the opposite side of the discovery of the so-called “gay gene” and one of the worst possible outcomes of the HGP. The techniques that could facilitate this situation are already in existence, and as the Down syndrome case demonstrates, have already been used to select fetuses for abortion. Rixecker says this means “the eradication of homosexuality in small cultural groups or on a global scale is theoretically feasible” (111).

So what does this mean in the real world, and with the current definition of genocide? In her essay Rixecker outlines a clear climate of hatred toward homosexuals in many countries. She notes that despite pressure from organizations like Amnesty International, the UN has not adopted any documents that provide significant protection for sexual minorities (120). The crux of the question is really this, will there ever be a broad campaign aimed at wiping out homosexuals, through the use of in vitro genetic manipulation or testing, in any specific country or area? The answer is a complex one.

If genetic testing and abortions/manipulation with the aim of removing homosexuality and homosexual children were made legal, the removal/modification of children with homosexual preconditions would probably not become required by law in any developed country. Some women who have had genetic testing done on their babies may choose abortion or modification, but many others would most likely make no change or not have testing done at all. The Down syndrome test has shown that governments and individuals are willing to let fetuses be aborted if they have a genetic disorder.  Homosexuality is not a disorder, which greatly undercuts the chances of abortion or modification based on sexuality, but does not totally eliminate the possibility. This does not mean a campaign to eradicate homosexuality could not exist in a developed country. Germany was one of the world’s highest educated and most cultured countries when Hitler came to power; with the discrimination that still exists today, one should never say never.

Genocide is probably unlikely in highly developed countries, but there is a stronger possibility that Rixecker’s genocide could happen elsewhere. This would most likely be in a country where homosexuality is crime punishable by death or life imprisonment. Most of those 13 countries are not yet developed enough to have the genetic testing and screening technology and use it on a broad scale. But India (where homosexuality is punishable by life imprisonment) and Pakistan (where it is punishable by death), might. It is not a long jump between murdering people for being gay and preventing gay people from being born.  In light of this, Rixecker’s genocide certainly is, at least, theoretically possible.

When these four “genocides,” are placed in context the picture that forms is one of horrible abuse to a vulnerable group across borders and throughout modern history. During WWII the Nazis set out to remove homosexuals, and other groups, from German society. The conditions that gay men were subjected to were as bad or worse as any other group. They were targeted for destruction, and underwent genocide. Homosexuals are still undergoing genocide in more than 13 countries, where they are either murdered or put in prison for life because of their sexuality. And it is conceivable that in the future, in certain countries or areas, generations of homosexuals could be wiped out through genetic screening, genetic modification, and abortions. Homosexuals are vulnerable and are currently not protected by international law, and this needs to change.

An effective international instrument is needed to protect homosexuals from genocide and other crimes. Gays and lesbians have undergone and still undergo treatment that would be considered genocide if they were one of the groups outlined in the genocide convention. There is intent to destroy, there is killing and there are conditions intended to bring about destruction. The most effective way to recognize past, stop current, and prevent future genocides, is to add sexual groups to the genocide convention alongside “national, ethnical, racial (and) religious group(s)” (Genocide Convention Article II). This can be done without making the convention overbroad. Hopefully, if this can be accomplished, it will serve to create international pressure and eventually result in the repealing of anti-gay laws and genocidal practices. Because gays are such a minority and targeted in so many countries, using force to end genocide is not really an option. But simply by recognizing the plight of homosexuals in international law will create some form of protection and justice, and raise massive amounts of awareness that can hopefully bring about change. But changing international law is a complex process, and the genocide convention must not be made overbroad.

The question of over broadness is where the “psychological genocide” must be applied. As mentioned above, it was not genocide and does not meet the requirements of the genocide convention. It would not meet those requirements even if sexual groups were included in the definition. This must remain so. The 5 criteria in article II of the genocide convention should not be removed, added to or changed. Changing them to recognize things like the psychological war against homosexuality would over broaden the convention and make it much less effective. This is where the line must be drawn. To reiterate, simply adding sexual groups to the first part of article II does not remove any power from the convention through over broadness and it stays true to the convention’s original purpose. It is adding to the 5 criteria of article II that would make it overbroad.

But there still remains one large problem. Many countries in the UN will never agree to adding sexual groups to the genocide convention, especially when 70 outlaw sodomy. Some Islamic countries, like Iran, refuse to even admit that homosexuality exists within their borders  (Daily Mail). This essay attempts to establish what justice dictates should be done in the case of the genocide convention. Adding sexual groups to the convention is just, but it is not practical in today’s world. But sexual groups still remain in limbo in terms of international law; there is no effective treaty which protects their rights As such, for practical purposes, a declaration, and eventually a convention, or possibly an optional protocol to the ICCPR,  must be drawn up to protect the rights of sexual groups and sexual minorities. This should take a similar form to the CEDAW and CERD. It must specifically outlaw discrimination based on sexual preference, declare that homosexuality is not a disease, and require governments to repeal sodomy/homosexuality laws and begin education campaigns to reduce stigma. This will help increase international pressure to end the stigmatization, stereotyping and hatred toward gays and lesbians. It will also help to gradually work toward a modification of the genocide convention that recognizes past, helps to end current, and helps to prevent future genocides.

Unfortunately, even something as simple as a declaration has little chance of entering into force in the UN. There are simply too many countries opposed to homosexuality. Change is possible, but it must be brought about gradually, through education and pressure from governments, NGOs, IGOs and individuals. Groups like Amnesty International and the International Gay and Lesbian Human Rights Commission are already fighting to create pressure for an international document protecting the rights of sexual minorities. Unfortunately, so far they have been unsuccessful. But, to borrow a term from Rixecker, a new “social map” (123) must be created in the world. It is certainly an uphill battle, but it is one that is being and certainly needs to be fought.

In conclusion, it is evident that homosexuals have undergone and still undergo massive discrimination, hatred and even genocide. Their treatment in WWII was genocidal, their treatment in countries where their sexuality is outlawed on pain of death or life imprisonment is genocide, and it is possible that a genetic genocide could be visited upon them in the future. To serve justice and provide protection, sexual groups must be included alongside the other groups in article II of the genocide convention. This will help to recognize past, end current, and prevent future genocides against gay men and women. This change can be done without making the convention over broad or ineffective, and the psychological non-genocide can be used a test to draw the line. Changing the genocide convention will be difficult and probably take many years, and other steps will have to come before any modification. But change is possible, and for justice and human dignity to be served, change must come.

Works Cited

Amnesty International USA. “LGBT Status Around the World.” 2009. Amnesty International USA. 13

January 2009 <;.

Bennetto, Jason. “Holocaust: Gay Activits Press for German Apology.” 1 November 1997. 13 January 2009 <;.

Bergen, Doris L. War and Genocide: A Concise History of the Holocaust. Lanham, Maryland:

Rowman & Littlefield Publishers, Inc., 2003.

Bull, Chris. “Memories of Nazi Persecution.” Advocate 879 (2002): 14-14.

Copestake, Jennifer. “Gays flee Iraq as Shia death squads find a new target.” The Observer 6 August


Dadrian, Vahakn N. “Children as Victims of Genocide; The Armenian Case.” Journal of Genocide

Research (2003): 421-438.

Daily Mail. Mail Online. 25 September 2007. 30 March 2009


Eunice Kennedy Shriver National Institute of Child Health and Human Development. Facts About

Down Syndrome. 15 August 2008. 10 March 2009 <;.

GayLawNet. Laws. 2008. 13 January 2009 <;.

Inernational Gay and Lesbian Human Rights Commission. Home. 2009. 13 January 2009


Ireland, Doug. “Youths Slain in Anti-Gay Fatwa.” Gay City News 5 September 2006:

Michel Prum, Benedicte Deschamps, Marie-Claude Barbier. Racial, Ethnic and Homophobic Violence:

Killing in the Name of Otherness. Oxon, OX: Routledge-Cavendish, 2007.

Percy, William A. “Humbuldt University of Berlin.” 22 June 2006. Homosexuality and the Holocaust.

13 January 2009 <;.

Rixecker, Stefanie S. “Genetic Engineering and Queer Biotechnology: The Eugenics of the Twenty-

First Century?” Journal of Genocide Research (2002): 109-126.

Robert J. Cramer, Frank D. Golom, Charles T. LoPresto, Salene M. Kirkley. “Weighing the Evidence:

Empirical Assessment and Ethical Implications of Conversion Therapy.” Ethics and Behaviour 18.1 (2008): 93-114.

Romesburg, Don. “The politics of the gay gene.” Advocate (2005): 7-7. Sodomy Laws in the United States. 24 November 2007. 30 March 2009


Stonewall UK. “Timeline of lesbian and gay history.” 2007. Stonewall. 23 January 2009


United Nations. “Convention on the Prevention and Punishment of the Crime of Genocide.” United

Nations, 9 December 1948.

United Nations General Assembly. “Universal Declaration of Human Rights.” New York: United

Nations, 10 December 1948.

United States Holocaust Memorial Museum. “Lesbians and the Third Reich.” 7 October 2008. United

States Holocaust Memorial Museum. 13 January 2009 <;.

United States Holocaust Memorial. “Nazi Persecution of Homosexuals 1933-1945.” 2009. United

States Holocaust Memorial. 13 January 2009 <;.

Vilanch, Bruce. “Tolerance and Tennessee.” Advocate 939 (2005): 72-72.

[1] Lesbian women received different treatment. They were often ignored because they could be forced to reproduce and were not usually considered a threat. However, some were put in camps and others were forced to work in brothels (Bergen 187).

[2] This study, performed by Dean Hamer, has been disputed by a later study. However, this second study used a smaller test group made up of a different field of subjects. Hamer has stood by his research, and has conducted a second study which further confirmed the link between Xq28 and homosexuality, but only in men.


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End It: Mandatory Retirement and the Charter

End It: Mandatory Retirement and the Charter

St. Thomas University

26 November 2007

Mandatory retirement should be banned in Canada, with a few exceptions allowed. It can do a lot of harm to those it forces to retire, and does little to benefit employers.  Employers should be able to retire employees when they can not do their job, but allowing mandatory retirement across the board is not the most effective way for this to be done.

The federal jurisdiction and several provinces in Canada do not consider mandatory retirement a human rights violation.  British Columbia, Saskatchewan, and Nova Scotia (to an extent),  allow mandatory retirement at the age of 65. New Brunswick and Newfoundland and Labrador allow  mandatory retirement if there is a,  “bona fide retirement or pension plan,” (Labour Law Analysis, Human Resources and Social Development Canada). A recent New Brunswick Court of Appeal decision, Human Rights Commission v. Potash Corporation of Saskatchewan, Inc. found that a retirement plan is bona fide as long as it is made in good faith. This rejects the Supreme Court’s three part test for Bona Fide Occupational Requirements (BFORs) outlined in the Meiorin case.

A Department of Justice study says that, in the debate over mandatory retirement, there are three important things to look at These are the rights of older workers, employers and the broader community (Mandatory Retirement and the Canadian Human Rights Act, Naresh C Agarwal). There are other issues as well, such as the aging workforce, the shortage of skilled workers and the impact of the baby boomer generation.

There should be no doubt that mandatory retirement is discriminatory, “the discriminatory practice,” is the term used by the judges in Potash. It is age discrimination, and it can greatly and negatively effect those forced to retire. Evidence has shown that, “mandatory retirement may cause major economic and non‑economic hardship to those older workers who would have continued working if they had not been required to quit their jobs upon reaching a certain age.”(Agarwal). Agarwal adds, “if forced to retire, (some) workers face the prospects of falling into poverty.”

The workforce is shrinking as baby boomers begin to retire, and there aren’t enough people to replace them. Agarwal says, “given these trends, it would be in the economic interest of the employers and the society at large to not force retirement on those older workers who otherwise want to continue working.” There is a lot of evidence to support Agarwall. In an article about mandatory retirement and the nursing shortage in the UK, Kevin McNerney, a Royal College of Nursing official says, “nurses who want to go on working are key to the country’s growing retention crisis.” (No Need to Retire, Carol Davis). An article from quotes David Dodge, the governor of the Bank of Canada, saying,  “he calls the policy (of mandatory retirement) ‘silly’ in the face of a coming labour shortage.”

According to the Labour Law Analysis, “case law indicates that, in some circumstances, laws or government policies permitting mandatory retirement are justified under section 1 of the Canadian Charter of Rights and Freedoms,”(Human Resources and Social Development Canada). Section one says that reasonable limits on freedom can be made as long as they are, “reasonable limits prescribed by law that can be demonstrably justified in a free and democratic society,”(The Canadian Charter of Rights and Freedoms). Mandatory retirement, except in a few cases, is not reasonable, nor has it been demonstrably justified.

The evidence in favour of mandatory retirement, in most cases, simply does not show that it is justifiable as a reasonable limit on freedom. Agarwal says, “empirical studies do not reveal a consistent relationship between age and job performance.”(Mandatory Retirement and the Canadian Human Rights Act). He adds, “far more significant performance differences exist within individual age groups than between different age groups.” To give a real world example, a study on air traffic controllers in the United States found that mandatory retirement practices were adopted based on, “anecdotal reports,” (Broach and Schroeder, 364), and without, “testimony or scientific studies,” (Broach and Schroeder, 364). Mandatory retirement has been banned in the US, except for in certain cases. Because of the stress and intellectual requirements of air traffic control, this was one of the last jobs where mandatory retirement is still allowed.  However, there is now a fight to change that practice. Some people believe in mandatory retirement because they are afraid older workers will be a safety hazard, but as that report says, there is little evidence to prove that assumption. With this lack of empirical evidence, it is very difficult to make an argument in favour of mandatory retirement.

There are several reasons some people advocate mandatory retirement. Some companies are afraid that older employees will hang on forever, doing little work but drawing pay and benefits and, increasing their pension. Some are afraid older workers will keep jobs from younger workers. These claims are unfounded. Agarwall says, “elimination of mandatory retirement is not likely to render organizational human resource planning more difficult.” (Mandatory retirement and the Canadian Human Rights Act). In other words, removing mandatory retirement would not take jobs away from new hires or lead to a massive cost in supporting older, unproductive workers. Agarwall adds that a lot of people retire before the maximum age, and,  “only a very small number of older workers decide to delay retirement beyond age 65 and those who do stay on do so for only a short period of time.”

With these facts in mind, it is easy to see that across-the-board mandatory retirement is not needed. Instead, it can be applied as a BFOR on a case-by-case basis. That way, employers in jobs where age may play an important role, such as firefighting, can set their own standard for retirement.

There is another option that is even better then applying mandatory retirement as a BFOR. Adopting  minimum physical fitness and health standards, instead of setting a maximum age would work well. It can remove workers of any age that are not fit for their jobs. It will also allow older workers who can still perform their jobs to continue to work. Many jobs, say in the military or police force, already have these fitness standards.  A study of the physical fitness of firefighters in a major city the United States showed that, “38% of fire fighters aged 40 to 45, 60% aged 50 to 55, and 96% aged 60 to 65 would be considered poor in their overall fitness for fire fighting..” (Aging and the Fitness of Fire Fighters, Saupe, Kurt, Sothmann, Mark, et al.) These results suggest that a mandatory retirement age may not be a bad idea when it comes to firefighting. However, since a large number of firefighters well under retirement age had a poor fitness rating,  minimum physical and health requirements would be much more effective at removing unfit workers of any age. It would also allow the few firefighters in good shape at 65 to keep their jobs. Either adopting a case-by-case BFOR standard or having certain jobs adopt a physical and health fitness test would greatly cut back on discrimination, help with the worker shortage and still get older workers out of their jobs when they are no longer fit.

Mandatory retirement is discriminatory. It is not the best method for removing ineffective workers. Removing mandatory retirement would not cause undue hardship on employers, or risk the health of the public. In jobs where age may have more of an impact on performance, fitness standards can be adopted, or mandatory retirement be allowed as a BFOR. As such, mandatory retirement should be banned in Canada.

Works Cited:

Broach, Dana and Schroeder, David J. “Air Traffic Control Specialist Age and En Route Operational Errors.” International Journal of Aviation Psychology 16.4 (2006): p363-373, 11p. 19 November 2007. <>

Davis, Carol. “No Need to Retire,” Nursing Standard 22.3 (2007): p72, 1p. 19 November 2007


“Mandatory Retirement and the Canadian Human Rights Act.” Department of Justice Canada. Agarwal, C. Narash.. 17 November 2007. <;

“Mandatory Retirement in Canada.” Human Resources and Social Development Canada. 17 November 2007 <;

New Brunswick Human Rights Commission v. Potash Corporation of Saskatchewan, Inc. NBCA 74. Supreme Court of Canada. 2006 <‑Potash.pdf&gt;

Saupe, Kurt, Sothmann, Mark, et al. “Aging and the Fitness of Fire Fighters: The Complex Issues Involved in Abolishing Mandatory Retirement Ages.” American Journal of Public Health 81.9 (2007): p1192-1194 3p. 19 November 2004 <>

“The Canadian Charter of Rights and Freedoms.” Justice Canada. 19 November 2007.


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NB Human Rights Code: Enforcement and Funding

NB Human Rights Code: Enforcement and Funding

St. Thomas University

5 December 2007

The New Brunswick Human Rights Code does a lot of things right. In many ways it matches the rights guaranteed by Canada’s international obligations and the conditions of other province’s human rights codes. However, it is lacking in several crucial areas, and has some severe handicaps in terms of enforcement. These problems can be overcome with more funding and by adopting some aspects of other provinces’ human rights codes.

The New Brunswick Human Rights Act (NBHRA) fulfills many of Canada’s obligations. It conforms well with the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination Against Women, all of which Canada has ratified. The NBHRA prohibits discrimination on grounds that are essentially the same as the UDHR and the conventions. It has a very similar goal, the total elimination of discrimination (except when justified by something like a BFQ). It sets up all of the things the conventions require for their enforcement; laws to make discrimination illegal, a body to educate people to stop discrimination, and a body to find and enforce remedies for victims of discrimination. The ICCPR specifically outlines this where it says, “adopt(ing) such laws or other measures as may be necessary to give effect to the rights recognized,”(Article 2 Section 2), and, “ensur(ing) remedies are enforced,” (Article 2 Section 3).

The NBHRA tries to eliminate discrimination through two main methods. The first is education, making people aware of their rights and what practices may be discriminatory. This is a very effective way to help end discrimination and is a mandate shared with all of the other provinces in Canada. The commission is founded on the idea that discrimination stems from ignorance. By educating people, the commission hopes to reduce ignorance and as such reduce discrimination.

The second way the commission tries to end discrimination is through enforcement. This, again, can be accomplished through two methods. The first method is non-adversarial. All cases start with this process, and the commission prefers that they end there as well. What generally happens is, the two parties sit down and talk in the presence of human rights officers. The parties are encouraged to compromise, and the human rights officer tries to show the person who discriminated how he or she was wrong. This is the best way to go about enforcing human rights. By using non-adversarial means, the commission looks for the best in people and tries to teach, as opposed to order, them to stop discriminating. As such, it gives the parties involved a chance at maintaining a relationship.

The second method of enforcement is the adversarial process. This means the case is taken to a tribunal, which acts as a court. If it finds someone guilty of discrimination it can order him or her to do anything or stop doing anything to comply with the NBHRA. The tribunal can also award damages or, force the person who discriminated to reinstate the victim to his or her position, or even charge the defendant with an offence. This method is needed when everything else fails. It is the only way to ensure that discrimination is ended in a fair and just manner. It is also better then using the courts system, which was all that was in place before the commission. The court system required that discrimination be proven beyond a reasonable doubt, which made convictions extremely difficult. It was also very slow and expensive.

The New Brunswick Human Rights Act has an important advantage over some other provinces built in to its tribunal process. Unlike provinces like Alberta and Prince Edward Island, New Brunswick’s act stipulates that tribunal members may not be chosen from the human rights commission. This means the investigators of complaints cannot try a complaint. This helps to ensure that those sitting on a tribunal are objective, and is instituted in most other provinces. New Brunswick does not have a permanent tribunal, as many other jurisdictions do, but this is a minor problem when compared to ensuring the neutrality of tribunal members.

New Brunswick does a good job of meeting the goals of the CEDAW. Its prohibited grounds of discrimination include pregnancy, something absent from the human rights acts of some other provinces, like Ontario and Nova Scotia. A woman should not be discriminated against because she has to take time off during or immediately after a pregnancy, nor should she be discriminated against if she has to take sick days to tend to her children. Women deserve all the same rights as men on the workplace, and equality is better ensured by protecting pregnancy.

New Brunswick’s Human Rights Act, and the acts of all the other provinces, allow for discrimination based on a Bona-Fide Qualification. This means that an employer, or landlord or anyone else who could discriminate, may discriminate if they can meet certain standards. They must prove they are discriminating in good faith, in a way rationally connected with their business, and in a way that is reasonably necessary. They also must prove that not discriminating would place an undue hardship on them. Some people are not strong enough to do the job of a firefighter. They should not be hired out of consideration for their safety, and the safety of others. Religions would most likely want their leaders or priests to follow their belief system, so it is understandable if the Catholic Church refuses to hire and atheist as a priest. Some discrimination is necessary, and a BFQ is the best way to allow it without violating Canada’s international obligations.

Another important thing the NBHRA does right is allow for affirmative action. This is recognized in all of the covenants. It is important to give specific groups, like women and visible minorities, a leg up in a society that has historically been unfair to them.

For all the things New Brunswick does right, it also has some severe handicaps. The NBHRA has some big problems with conflict of interest and a backlog of cases. Also, like almost every other commission in Canada, it the New Brunswick Human Rights Commission has big problems with funding.

The Commission in New Brunswick has no set term for its members. They are appointed by the Lieutenant Governor in council, which basically means they are appointed by the cabinet. The cabinet is also in charge of the commissioners’ salaries. This means the cabinet can appoint whomever it wants to the commission, set their pay, and fire commissioners at will. As such, if a commissioner decides to crusade against the government he or she could be fired. This means commissioners may be less willing to act on complaints made against the government over fear for their jobs. There has been one instance of a commissioner being fired after pursuing a complaint against the government in New Brunswick. It cannot be proven that the commissioner was actually fired as a result of acting on that complaint, but it is a possibility. In practice, this may not be much of a problem and they government may never intervene to stop a complaint against itself. However, a lack of independence makes the commission look bad. People may be less willing to go to the commission if they think it is a pawn of the government. Other commissions, like Newfoundland’s, have their commissioners on a set term of office. This gives them more freedom, as the commissioners do not have to try and please the government to keep their jobs. Quebec has an even better system. It’s commissioners must be elected by 2/3rds of the province’s national assembly, giving them even more independence.

New Brunswick also has a problem with its tribunal process. It is mandatory for the commission to investigate any complaint with merit, but it is not mandatory for any unresolved complaint to go to the tribunal. With an ever-increasing workload and a lack of funding, this means some less important or non-unique complaints could get passed over. An even bigger problem is that complaints must have approval from the Minister of Post‑Secondary Education, Training and Labour to go to the tribunal stage. This is another conflict of interest. The commission actually has to get approval from the government if it wants to pursue a case against the government. Again, in practice this may not be much of a conflict, but it looks terrible and could easily discourage complaints. Other provinces, such as Manitoba, Alberta and British Columbia require that all valid complaints, which cannot be solved through non-adversarial means, go to a tribunal. This is far more effective when it comes to giving a chance for remedy to every complainant.

New Brunswick, like all the other provinces, has a big problem with funding. Funding for human rights commissions has increased fairly steadily since their creation. However, the mandates of commissions continues to grow and the amount of complaints has increased far faster then the amount of funding. This means a huge backlog of cases and not enough officers to deal with them. This is a problem in every jurisdiction, except the well funded federal jurisdiction. Provinces without a mandatory tribunal process may dismiss a lot of cases, and provinces with a mandatory tribunal process may have a gigantic backlog. Cases can take so long to resolve that the tribunal’s decisions may do little good for victims. Also, some defendants have managed to win trials by claiming that their right to a trial in a reasonable amount of time was violated. This lack of funding hits even harder when combined with New Brunswick’s lack of a mandatory tribunal process and its requirement for ministerial approval.

The NBHRA does not allow for appeals. This is a problem because a tribunal’s decision could be wrong just as easily as a court’s decision. Court’s have two levels of appeals, and tribunals are generally made up of people with much less legal experience then judges. As such, there is a greater chance for a miscarriage of justice, and basically no way to rectify it. The only saving grace is that penalties are much less harsh with tribunals, (maximum fines are under $6000), but a bad ruling could be very damaging to a person’s reputation and/or business. Newfoundland is a better example in this case, as its human rights code allows for appeals.

All of the UN’s covenants that Canada has signed on to require that the countries party to them, in the words of the ICCPR, “undertake to respect and to ensure to all individuals the rights in the covenant,”(Article 2). The covenants make it mandatory for a country’s laws to forbid discrimination, to create practices that stop discrimination, to ensure victims of discrimination have an effective remedy, and to enforce remedies. The New Brunswick Human Rights Act brings these laws into force, and creates a body to help stop discrimination, find remedies for victims and enforce remedies. However, a lack of funding, the requirement for ministerial approval and the lack of a mandatory tribunal stage and a set term for commissions are crippling for the Human Rights Commission. These problems mean that not all victims of discrimination will be able to get an effective remedy. As such, the NBHRA needs some serious revisions.

The government of New Brunswick has to do several things to make its human rights commission better. First, it must eliminate any possibility of a conflict of interest. It has to do two things to accomplish this. To begin with, the government has to give its commissioners set terms of office that cannot be renewed. This way commissioners can be free to pursue complaints against the government without fear of reprisal. Also, if commissioners have no way of renewing their term, they have no reason to suck up to the government to be reappointed. The other possible solution to the problem of terms that are not set, a life-long term, has its own set of problems (namely that commissioners with poor performance cannot be removed) and should be avoided. To go even further, the commission should be made even more independent by adopting a practice from Quebec. Commissioners should be elected by 2/3rds of the legislature. This is a more fair and democratic way to appoint commissioners than leaving that power in the hands of the cabinet. The second thing the government must do is remove the requirement for ministerial approval for cases going to the human rights tribunal. It is ridiculous that an agent of a government that could have a complaint lodged against it must approve of the complaints.

The New Brunswick government also must make it mandatory for every case with merit, that cannot be solved through non-adversarial means, to go to tribunal. This will ensure that every complainant can get a chance at receiving a remedy. Because making this process mandatory would almost definitely lead to a huge backlog, both the New Brunswick and federal governments must invest more money and resources into the human rights commission. A remedy is much less effective if it comes after years of legal battling because of a backlogged system. Giving the commission the resources it needs is the only way to ensure cases are dealt with in a timely matter.

The New Brunswick human rights commission is very similar to the commissions across Canada. It endeavours to eliminate discrimination through education and two forms of enforcement. It is a great tool in the fight for human rights. However, it has a lot of problems that handicap it in living up to Canada’s international human rights obligations. These handicaps can be removed with more funding, and by adopting some of the practices from other provinces.

Works Cited:

Comeau, Michael. NB Human Rights Code. Codes and Commissions. St. Thomas University, Fredericton, NB. 12 September 2007.

Comeau, Michael. Canada’s International Obligations. Codes and Commissions. St. Thomas University, Fredericton, NB. 26 September 2007.

Comeau, Michael. Chapter 2. Codes and Commissions. St. Thomas University, Fredericton, NB .

3 October 2007.

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Law According to Bonhoeffer, King, and Socrates

Socrates, Dietrich Bonhoeffer and Martin Luther King all believe that human laws are not, in and of themselves, perfect. They argue that laws can not stand alone, but must rest on something much more fundamental, the divine laws, the laws of God. They claim society can not survive without being grounded in God, and humans can not live full lives without following a universal code of morality.  Socrates’ speech in Plato’s Apology is based on the idea that Athens is a city founded on the divine laws, and his criticism is of men that have an “eagerness to possess as much wealth, reputation and honours as possible, while {they} do not care for nor give thought to wisdom or truth”[1], instead of an eagerness to follow those laws.  Bonhoeffer says society is doomed without respect among mankind for human individuality, individuality which finds its roots in God. Finally, Martin Luther King stated that there are two types of laws, just and unjust. He claims the just laws are  in accordance with the divine laws and benefit humanity, the unjust laws are in disharmony with the divine laws and must be fought against in order to save society from self destruction.

In, the Apology, Socrates’ central argument is that, although Athens has great laws, ones which reflect what he perceives as the divine laws, they are of no use until its people begin to implement them in a just way. He says that in order for the people to listen to justice, they must ground themselves in the gods, admitting that “the human wisdom is worth little or nothing”[2], and seeking “truth”[3] and “excellence”[4] instead of “wealth”[5] and other worldly things.  He does

not state the difference between just and unjust laws as clearly as Martin Luther King, but Socrates does draw a difference between his just behaviour and the unjust behaviour of the “dangerous accusers”[6]. He claims his actions are made just because they are rooted in “service to the god”[7], and a great respect for both Athens and the divine principals it was founded on.

Throughout the Apology Socrates’ criticises  men who, without breaking any laws, led others to believe lies, “accused [him] quite falsely”[8], and “spread rumour”[9]. This criticism reveals what is right to ground ones values in, by showing what the Atenians are doing wrong. Socrates accuses Meletus of  “attempting to have a man executed unjustly”[10], because he is grounding his work in “insolence, violence and youthful zeal”[11]. He claims the jurors are only willing to vote for his death because they “are not ashamed of [their] eagerness to possess as much wealth, reputation and honours as possible, while {they} do not care for nor give thought to wisdom or truth”[12]. It can be seen that wisdom in this sense refers to the divine wisdom, as Socrates has already said human wisdom is “worth little or nothing”[13] .  Because Athens is a democracy in which the populous is in charge of making laws, Socrates’ argument also applies to what those laws must be grounded in. He says men must “judge according to law”[14], and must look to divine wisdom, to the divine laws, and to truth in order to do so.

On top of pointing out that his accusers are grounding their values, and thus the laws of Athens, in the wrong things, Socrates also shows how he has grounded his life in the right things. He is in the court to “obey the law and make [his] defence”[15]. The entire reason he is being tried is because his “investigation in the service of the god”[16] caused him to “[become] unpopular”[17], to the point where those he questioned wanted him dead. He had “live[ed] in great poverty because of [his] service to the god”[18] and is not ashamed of dying because he believes a man “should look to this only in his actions, whether what he does is right or wrong”[19]. Socrates even goes so far as to say that he will follow his “course of action, even if [he is] to face death many times”[20], and will wake  people in the city from the sleep of ignorance, even if they “strike out at [him]”[21]. He shows again and again that his life is a just one, and that it is so simply because he is completely dedicated to serving the god.

The purpose of Dietrich Bonhoeffer’s letter, After Ten Years, is to prove that humanity must ground it’s values in God in order to prevent self-destruction and create a just society. Bonhoeffer argues that not having a respect for the individuality of humans, an individuality which stems from God, causes  people to be very easily led astray. This can be seen when he says, “Unless we have the courage to fight for a revival of wholesome reserve between man and man, we shall perish in an anarchy of human values”[22]. This argument also applies to law in that,

without this same respect and grounding of values in God, there will be nothing to prevent lawmakers from  writing laws contrary to what is right and just. This is what happened during the Nazi regime, when Bonhoeffer saw people following evil laws and objectifying their fellow man, leading to the murder of millions solely because of race. Unjust laws were written because lawmakers did not ground their values in God and  have the respect for humanity that is required to live justly, and those laws were followed because the populous lacked exactly the same thing. As such, Bonhoeffer believes, like Socrates, that in order for society to function, society must be grounded in the divine and universal laws of God.

Bonhoeffer claims,

The great masquerade of evil has played havoc with all our ethical

concepts. For evil to appear disguised as light, charity, historical

necessity, or social justice is quite bewildering to anyone brought

up on our traditional ethical concepts, while for the Christian who

bases his life on the Bible it merely confirms the fundamental

wickedness of evil[23].

This quote is a great summation of Bonhoeffer’s argument. “The great masquerade of evil”[24], can be taken to mean Facsim, which disguises itself in a manner that “traditional ethical concepts”[25], cannot see through. Bonhoeffer shows the Christian, to whom this “merely confirms the wickedness of evil”[26], as seeing through the disguise. This is because a Christian does not simply rely on “traditional ethical concepts”[27], or even “his reason, his principles, his conscience, his freedom or his virtue”[28], but “is ready to sacrifice all this when he is called to obedient and responsible action in faith and in exclusive allegiance to God”[29]. In other words, only the man with his faith grounded in God is able to resist evil disguised as good. This reflects Bonhoeffer’s vision of what law must be grounded in. The fundamental reasons these people follow evil is because they, and the writers of the laws they follow, do not have their lives grounded in God.

Bonhoeffer also claims that “In the subordination of all personal wishes and ideas to the tasks to which we have been called, we have seen the meaning and greatness of our lives”[30]. He is saying that, in order for a life to have meaning, a person must submit to a greater power and cease living for themselves. The problem with subordination is that man has, “misjudged the world; he did not realize that his submissiveness and self sacrifice could be exploited for evil ends. When that happened, the exercise of the calling itself became questionable…”[31]. Submissiveness, when it is not to God, can easily be corrupted. In this case, the German people have submitted to Hitler’s evil Nazi regime. It was evident that the calling of Fascism was questionable because it resulted in the deaths of millions. It was obviously fundamentally wrong because it had not been grounded in God and respect for human individuality, which made it extremely easy to justify so many horrible deaths.

Martin Luther King Jr.’s attitude towards justice and what society’s values must be grounded in is very similar to that of Dietrich Bonhoeffer’s and Socrates’. In his Letter From Birmingham Jail he responds to a letter, written by fellow clergymen, which says the civil rights

movement he leads is moving to quickly. King’s response is a biting one, in which he reveals the horrors of racism and segregation, and shows that there is no better time to act then the present. He justifies his position by clearly defining just and unjust laws, saying exactly what society needs as a base in order to function properly, and revealing the relationship between time and justice.Unlike Bonhoeffer and Socrates, King is not at all subtle. He comes right out and states that “a just law is a man-made code that squares with the moral law or the law of God.”[32], and that “An unjust law is a code that is out of harmony with the moral law”[33].  He shows how a law can be recognized as aligning with morality when he states, “Any law that uplifts the human personality is just. Any law that degrades human personality is unjust”[34]. King applies this rule to the segregation when he says, “All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority”[35]. King is claiming that laws must be rooted in morality for them to be just, and that people have a moral obligation to break unjust laws. This disobedience, King says, “is in reality expressing the highest respect for law”[36]. The reason breaking laws can show the, “highest respect”[37], for law is because the person breaking the unjust law is, in reality, fighting for true law. This is the universal moral law of God, under which all men are free and equal. This true law was written into the American constitution, and is exactly what King is attempting to have implemented in the south.

The fact that, as King sees it, some people in the south are considered inferior and others superior, is objectification. This objectification is something which Dietrich Bonhoeffer also saw in Nazi Germany, and is caused by a lack of respect for the human person. King explains this when he says segregation “substitutes an ‘I-it’ relationship for an ‘I-thou’ relationship, and ends up relegating persons to the status of things”[38].  This, “I-it”[39], relationship can only be changed when people garner a respect for the value every person has, stemming from their individuality, and rooted entirely in God.

When King says that the white moderate are “more devoted to ‘order’ then to justice”[40], he is making a very similar point to that of Socrates. The philosopher criticised the citizens of Athens for their “eagerness to possess as much wealth, reputation and honours as possible, while {they} do not care for nor give thought to wisdom or truth”[41]. Seeking order, while sacrificing justice, is similar to a lust for wealth. This is because order allows for the peaceful enjoyment of possessions and status, while the implementation of justice can threaten both false peace and unjustly achieved status. Those were the very things the white moderate wished to defend.  King continues this argument when he says the white moderate  “paternalistically believes he can set the timetable for another man’s freedom”[42]. Because this moderate only cares about order, choosing to ignore the fact that the God given rights of Black persons hardly exist in the southern United States, they are setting up “dams that block the flow of social progress”[43]. They fight against a “substantive and positive peace, in which all men will respect the dignity and worth of human personality”[44], and are using time as an excuse to build these “dams”[45]. King calls time “neutral”[46], saying, “it can be used either destructively or constructively”[47], and that “the time is always ripe to do right”[48]. In his analysis of time and criticism of the white moderate,  King reveals that when it comes to God given rights, there is no bad time for implementation, and friction will never be absent in the fight for equality.

The speech of Socrates in Plato’s Apology, the letter Dietrich Bonhoeffer wrote to his friends in response to the complacency of and horrors caused by the people in Nazi Germany, and Martin Luther King’s Letter From Birmingham Jail, all carry the same message. They argue that in order for people, and society, to be successful and just, they must have their values grounded in the divine laws, and thus in God. Socrates believed this meant people must seek truth and the true, just application of law . King and Bonhoeffer, seeing the objectification of persons destroying so many lives, believed that grounding values in God meant moving past racism. It requires forgetting conventional morality, being strengthened in the divine laws , and achieving a respect for all mankind through an appreciation for the individuality in every person.


Bonhoeffer, Dietrich.”After Ten Years,” Letters and Papers from Prison. Ed. Eberhard Bethge. New York: The Macmillan Company, 1967.

King, Martin Luther. Letter from Birmingham Jail,” Why We Can’t Wait. New York: Harper & Row Publishers, 1963

Plato. “Apology,” The Trial and Death of Socrates. 3rd ed: Translated by G.M.A. Grube. Revised by John M. Cooper. Indianapolis: Hackett Publishing Company, 2000.

[1]Plato, “Apology,” The Trial and Death of Socrates. 3rd ed: Translated by G.M.A. Grube.                 Revised John M. Cooper. (Indianapolis: Hackett Publishing Company, 2000), 32.





















[22]Dietrich Bonhoeffer, Letters and Papers from Prison: After Ten Years. (New York: The                 Macmillan Company, 1967), 35.










[32]King, Martin Luther. “Letter from Birmingham Jail,” Why We Can’t Wait. (New York:                 Harper & Row Publishers, 1963), 85









[41]Plato, “Apology,” The Trial and Death of Socrates. 3rd ed: Translated by G.M.A. Grube.                 Revised John M. Cooper. (Indianapolis: Hackett Publishing Company, 2000), 32.

[42]King, Martin Luther. “Letter from Birmingham Jail,” Why We Can’t Wait. (New York:                 Harper & Row Publishers, 1963), 87.







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The evils of lesser evils: Ignatieff and the statist response to terrorism

The evils of lesser evils: Ignatieff and the statist response to terrorism

St. Thomas University


A statist response to terrorism is ineffective. It regards terrorism as something that it is not, and fights it in a way that does not work in the long run. Michael Ignatieff’s theory of lesser evils requires a statist response to work. His ideas may be necessary in some cases, but using them as official policy can cause more harm then good. The encroachment on rights these responses bring with them can serve to fuel the fires of extremism.

A criminality response to terrorism fights it effectively because of its flexibility and regard for human rights and legality. It betters the international image of western countries fighting terrorism, allowing them to be beacons on a hill and helping to undercut support for extremists. As such, it is better then a statist and lesser evils response to terrorism.

Lesser Evils and the Statist Response

Ignatieff’s idea of lesser evils depends on a statist, as opposed to a criminality, response to terrorism. This means treating terrorism as an act of war, and responding to it forcefully. It sees Governments using their militaries against terrorists and countries that either passively or actively support them. It also defines a war on terror as something that can be won and treats it like a single problem that can be solved with a unified international response.

Ignatieff’s theory goes one step further then war. Lesser evils is a method to, “ balance civil liberties and national security in a war on terror,”(Ignatieff 1).He believes in government policy that holds prisoners for indefinite periods of time, uses coercive interrogation, targeted assassinations, and pre-emptive warfare. Ignatieff thinks that these methods will help to discover and stop terrorist plots before they come to fruition. He also believes those methods can be especially helpful in ticking time bomb situations where the only way to stop an attack is to encroach on the rights of attackers.

The reason Ignatieff feels such extreme methods are needed, and why he calls them lesser evils, is because he thinks another terrorist attack could lead to the American public demanding a national security state. He is afraid that, “American’s will not forgive a second … fatal mistake,”(Ignatieff 1). He says another attack, with something like a nuclear or dirty bomb, “would make 9/11 seem like a pale prelude,” (Ignatieff 1), that would, “mean the death of democracy,”(Ignatieff 1). He wants to use the lesser evils to stop terrorists from taking advantage of the American legal system and prevent the greater evil of an out of control state wielding unlimited power over the rights of its citizens. He claims that small rights abuses in certain situations and under the control of democratic institutions, are justifiable.

The Criminality Response

The criminality response treats terrorism as a crime, not an act of war. It says terrorism violates international law, human rights and/or domestic law. It attempts to use the full power of the legal system to prosecute terrorists, and only in the most extreme and drastic cases will the response allow for the violation of domestic or international law and human rights.

The criminality response defines terrorism as something that will always exist and must always be fought. Unlike a statist response, it attempts to weaken terrorism by dealing with its root causes and appealing to moderates. It is flexible and allows for different responses in different places, according to local situation and law enforcement capabilities.

Problems With the Statist Response and Lesser Evils

Ignatieff assumes that another large terrorist attack will lead to the United States becoming a national security state. He feels that people will be so frightened they will give up liberties to prevent terrorism. There is no way to know whether people will react as strongly as Ignatieff assumes, and it is risky to implement his ideas based on an assumption. He also assumes that lesser evils will be the best way to stop terrorist attacks. In fact they may not be very effective at all, and they look very bad internationally.

One of the principle problems with the statist response to terrorism is that, as Mark Drumbl puts it, “conceptualizing the use of force and the use of courts as mutually exclusive response mechanisms builds somewhat of a false dichotomy,” (335). He is suggesting that force and a criminality response are not incompatible, that when authorized by the justice system, force can be used to track down, capture, and if necessary, kill terrorists. As such, a statist response is not the only response to terrorism which allows governments to use force.

Another problem with the statist response is that it does not give enough weight to the thousands of different problems and situations that lead to terrorism. Terrorism is and was different in Indonesia, Iraq and Ireland. Extremists are present in every country, and are not just Islamic. The very fact that extremism has become such a problem in western European countries proves that a conventional, “war,” on terror is ineffective. It is difficult to fight an enemy at home in any conventional way.

There are benefits to holding terrorist suspects without a trial and using so called “coercive interrogation.” That interrogation, which comes dangerously close to torture, can lead to information that would otherwise have remained undiscovered. Holding suspects without trail makes it easier to arrest terrorists and keep them from planning new attacks. Targeted assassinations, like the execution of al Qaeda operative Hamza Rabia by the US last December, can devastate terrorist leadership and discourage would be terrorists. Pre emptive war can give a government the upper hand, allowing it to strike first and remove vital parts of an opposing military before it has the chance to mobilize.

All of those practices are included in Michael Ignatieff’s idea of lesser evils. Unfortunately, they make the western governments who use them appear hypocritical, except in a few extenuating circumstances, and frequently are not beneficial in the long run. Pre-emptive warfare makes the nation using it an aggressor, and can lead to wars that may not have otherwise started. All of these things mean giving fuel to terrorist rhetoric.

“To claim, as some people do, that coercive interrogation doesn’t work contradicts common sense, as well as the Bush administration’s unqualified insistence that the CIA’s “alternative procedures” have already thwarted terrorist attacks and saved lives,” (1), Jonathan Rauch claims in a National Journal article on coercive interrogation. Coercive interrogation very well may have value, especially in a ticking time bomb situation. There are times when something wrong must be done in order to prevent something worse. If a bomb is about to go off in an office building, and the bomber has been caught but will not say what building the bomb is in, the rights of the possible victims should come first. Rauch says, “surely the rights of potential terrorism victims count no less than the rights of detainees,”(Rauch, 1). Coercive interrogation in that case should be used. But as Rauch also says, “To use coercive interrogation as part of everyday intelligence‑gathering would certainly be unacceptable,” (Rauch., 1), because, “even the occasional and careful use of rough methods risks tarnishing America’s image and diminishing the country’s power to lead by example,”(Rauch, 1). As such, there should be no policy allowing for routine coercive interrogation, except for the allowance of it in ticking time bomb situations.

Targeted assassinations seem effective, but they frequently cause more harm then good and do little in the long run. Al Qaeda leadership was decimated by the Americans, but the New York Times reports that is has been all but re-established. A more in depth example is when Israel assassinated Salah Shehada with a 2,000 pound bomb that obliterated his apartment building. Unfortunately,

Shehada had his daughter with him … and the buildings

surrounding his own were occupied. When the massive bomb

demolished the target, it also damaged several of these other

buildings. Shehada was killed‑‑but so were at least 14 civilians,

including his daughter and eight other children (Byman, Tit for Tat).

There was an outcry. “Hundreds of thousands of Palestinians turned out to mourn the victims. World leaders condemned the attack …,” (Byman, Tit for Tat). Israel managed to kill a terrorist who had caused the deaths of hundreds of innocent civilians, but the fuel they added to the fire of Palestinian extremism may have far outweighed the benefit of his death. “Terrorist groups … retaliate when their leaders are killed,” (Byman, A Bloody Balance Sheet). Byman quotes a senior Palestinian security official who said, “whoever sign[s] off on killing a leader among Hamas or any other leader on the Palestinian side should turn the page and should sign off on killing 16 Israelis,” (Byman, A Bloody Balance Sheet). Terrorist groups react like this in Palestine after Israel strikes. There is no reason to think they will not react similarly in other countries when other western nations use targeted assassinations. The fact that assassinated terrorist leaders can be replaced in a matter of years or months certainly makes the threat of these retribution killings seem too much to justify targeted assassinations. In exceptional cases, such as when it will prevent an attack, an assassination may be necessary. However, assassinations can not be an everyday practice, and must be carried out only when they will do more good then harm.

Like all of Ignatieff’s lesser evils, indefinite detention violates rights and makes the US look bad. It destroys a persons right to freedom, and without a real trial to prove the US is justified in doing so. Jennifer Van Bergen says, “without such protections [as judicial review and habeas corpus] justice does not work and human rights are jeopardized.”(450). In other words, innocent people can be jailed without any one to help them, and this does not benefit anyone in the long run. The excuse that terrorists must be held indefinitely to get information from them is hard to swallow. It is difficult to understand how something relevant and timely could be gained from a suspect after three years of detention that could not be gained after a couple of months. Perhaps it is justified to have a few people jailed, in the name of national security and without trial, for a short period of time. However the usefulness of that tactic seems to decline after years of detention without trial.

Ignatieff’s lesser evils can simply add fuel to the fire. They make the west look bad and give material to extremists looking to criticise them.. In the long run, they may end up helping to create more terrorists then they remove.

The Advantages of the Criminality Response

The criminality response uses the best parts of the statist and lesser evils responses against terrorism without doing as much damage to the image of the country practising it. The criminality response does not treat terrorism as a war that can be won, but as something that will never stop. As such it seeks to undercut terrorism legally and morally, and to do everything possible to reduce it. In this aspect it has a much more realistic view of a world plagued by terrorism.

As stated above, the criminality response seeks to prosecute terrorists under the law, not extra judicially or in military tribunals. Terrorists are seen as criminals, not enemy combatants. Treating them as criminals, because they have violated international law, looks much better internationally then holding terrorists without trial or prosecuting them under semi-legitimate military tribunals.

That being said, the criminality response also leaves room for force. The military can be used to detain criminals or eliminate threats. As Drumbl says, “The criminal law, after all, permits the use of force to track down, capture and neutralize suspected criminals who resist arrest. It also permits the use [of] force in self-defence,” (345-346). When absolutely necessary, in extraordinary cases, Ignatieff’s lesser evils can be used. They should not be used as a matter of policy, but only when properly authorized by the judiciary, executive or legislature. If a bomb is about to go off, the bomber can be tortured, if a terrorist leader can be assassinated with the proper authorization and without the risk of becoming a martyr or invoking international scorn, then the leader can be assassinated. The criminality response acknowledges that lesser evils are too evil to have implemented as policy, but that force can be used when needed.

Aside from actually punishing terrorists, the criminality response has the capacity to undercuts terrorists support. It attempts to appeal to moderates and deals with the root problems of terrorism in order to remove that support. This can be accomplished by doing many things. Most importantly, the criminality response allows the country practising it to appear as a beacon on a hill. The United States could stand to have its international image bolstered. By stopping things that violate its citizens rights, like illegal wiretaps, and curtailing its use of lesser evils, the US would undercut some terrorist rhetoric and help to slow down radicalization.

Dr. Sidney Jones, an expert on Islamic radicalism speaks out against lesser evils in Policy. She says, “it’s precisely ill-treatment and violations of liberties of these kinds that can lead to the further radicalisation of people that you want to draw away from the groups they belong to,” (Rolfe 50). By using the criminality response and stopping its use of lesser evils, the United States could become a much better example of freedom and democracy, and just maybe, give less reason for terrorists to criticise it.

The causes of terrorism are varied, from economic and social reasons to indoctrination by parents, and a sweeping approach to eradicating it is ineffective (Rolfe 51). This is one of the reasons why the criminality response is better then the statist and lesser evils responses. It can allow for different measures in different places according to the legal systems and law enforcement capabilities of the nations and regions involved.

Jones calls a military response to terrorism, “dangerous,”(Rolfe, 51), except when terrorism “blends into insurgency like you had with the IRA,”(Rolfe 51). Jones says improving education and building economies will help to slow radicalisation in certain places, although not in others. Radicalisation of immigrants and their children is a big problem in Europe. Better programs to bring about integration and stop racism are needed to help stop this radicalisation. The Middle East has a variety of problems in all of its countries. However, economic help, ending government corruption, better law enforcement, prosecution under the law with assistance from the military, and giving terrorists less reason to hate the United States and Western countries will help stop radicalisation while eliminating immediate terrorist threats. Jones says East Asian countries like Indonesia need a combination of improved law enforcement, education and economic programs to combat terrorism. The approach to curtailing terrorism must be flexible, and never calls for an all out war. The criminality response has the force and flexibility needed to work.

The statist response views terrorism as something that can be defeated militarily, a bad and too rigid idea. Some of Ignatieff’s lesser evils serve a purpose in certain situations, but when implemented as a matter of everyday policy, only serve to radicalise people susceptible to extremist doctrine. The criminality response realises terrorism cannot be stopped. As such, it works to slow terrorism down. It allows for the flexibility needed to address terrorism in every corner of the world, while still using military force when necessary. As such, a criminality response, which only uses lesser evils in extraordinary cases, is the most effective way to combat terrorism.

Works Cited

Byman, Daniel. (2006, March/April). Do Targeted Killings Work? [electronic version]. Foreign Affairs, Vol. 85 Issue 2, p95-100. Used Page 5

Drumbl, Mark. (2004, Spring). ‘Lesser Evils’ in the War on Terrorism [electronic version]. Case Western Reserve Journal of International Law, Vol. 36 Issue 2/3, p335‑348. Used page 3 and 7.

Ignatieff, Michael. (2004, May 2). Lesser Evils. New York Times, Section 6, Page 46. Used page 1-2.

Rauch, Jonathan. (2006, September 23). The Right Approach to Rough Treatment [electronic version]. National Journal, Vol. 38 Issue 41, p18-19. Used Page 4.

Rolfe, Dominic. (2006/2007 Summer). Jihad in the Near North. Policy, Vol. 22 Issue 4, p47-51. Used page 8.

Van Bergen, Jennifer, & Valentine, Douglas. (2006). The Dangerous World of Indefinite Detentions: Vietnam to Abu Ghraib. Case Western Reserve Journal of International Law, Vol. 37 Issue 2/3, p449-508.Used page 6.

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Balance in the Charter

Balance in the Charter

St. Thomas University

10 March 2008

The Charter of Rights and Freedoms is a document meant to protect individual liberties from government and a tyranny of the majority. It was created with teeth, unlike the bill of rights that came before it. The government struck a strong balance between the judiciary and legislators, one which ensured that liberties and democracy were both well protected. Historical evidence, a democratic dialogue, and the fact that the balance was created democratically show how effective that balance is.

In its essence, the Charter is a liberal document. Its purpose is to limit government power in order to protect the rights and freedoms of Canadians. It explicitly outlines prohibited grounds of discrimination and what rights people are entitled to. It allows the courts to strike down any laws that do not align with those rights.

The charter also protects against a tyranny of the majority. Canada is a liberal democracy, which means it is democracy with some limits. The election of Hitler in Germany was democratic, and the majority of German people went along with Nazism. The genocide against the Jews was, at least in part, due to the tyranny of the majority against a minority. The enshrinement of rights is necessary in a society to ensure the majority does not bring harm to a minority, like what happened in Germany or even what happened to Japanese Canadians who were put in internment camps during WWII.

As noble as the charter is, it is useless without any teeth. The Canadian Bill of Rights is a good example of an impotent document intended to protect rights. When it was enacted in 1960 it gave the courts the right to strike down laws, but it was not enshrined in the constitution (meaning the next government, or even the same government, could change it like any other law). As such, courts were unwilling to use the power it granted them to strike down laws that violated people’s freedoms. When they did strike down laws, it was almost always for jurisdictional reasons. The Supreme Court’s striking down of the Alberta Press Bill is an example of this. The Court determined that freedom of the press was crucial to a democracy, and that only the federal government could enact a law restricting something so important. This means that even in a case as important as the Alberta Press Bill, the Supreme Court was unwilling to use the Bill of Rights to strike down legislation. This was seen again in Switzman vs. Elbling, or the padlock case. The court was often completely unwilling to act when a case did not deal with division of powers, such as when Tomey Homma, a Japanese Canadian, was denied the vote because the Privy Council ruled that, “race… was simply a category the province was entitled to adopt in determining who should have the ‘privilege’ of the franchise,” (13).

So human rights must be enshrined in the constitution, and they must have a body to enforce them. The court is the only body capable of giving rights this protection. The question then moves to how the Charter balances the court’s power with that of the legislators. There are several reasons to support that balance.

The court does not have a final say. It is part of an ongoing dialogue with legislators. Laws the court invalidates can be reframed so that they fall under section 1 of the Charter, that, “these rights are subject only to such reasonable limits as can be demonstrably justified in a free and democratic society.” This is often used, as Sharpe and Roach say, “there is strong evidence that legislatures have frequently enacted new legislation after the courts have invalidated legislation under the charter,” (38) and, “the Supreme Court appears to accept the idea that judicial review under the Charter is part of a dialogue between courts and legislatures.” (38) The notwithstanding clause of section 33 can also be invoked to create laws that are not subject to the guarantees of the charter on a renewable five year term. This means that legislators can easily overrule the courts decisions, but if they do so in a way that invokes the wrath of voters, they may have to reconsider renewing the clause. This clause was a compromise Trudeau agreed to in order to get more provinces to agree to the Charter, and he hoped it would be removed quickly. It has not, and although it is rarely used, it does create what many people see as an unnecessary obstacle to human rights. For the sake of rights it should be removed, the only real purpose it serves is to help satisfy critics of the charter.

It must be remembered that judges did not ask for the power of judicial review. Some people say judicial review is undemocratic because judges are unelected and appointed for life. However, the power of judicial review was freely given to judges by the elected representatives of the people. This means the balance between the court and legislators is one that was democratically created.

Courts are also needed to determine what limits rights should have. Freedom of expression is an important right, but it does not entitle someone to yell, “fire,” in a movie theatre. Rights are only meant to stop before they bring harm to others or to society as a whole. People are free to gather in peaceful assembly in Canada, but not free to gather and riot or to promote racism or sedition. It is obviously a bad idea to give legislators the power to determine where the limits of rights are, so the courts are needed to determine what limits are justifiable under section 1 of the Charter.

The Supreme Court also gives a flexible interpretation in regard to its own powers. As Sharpe and Roach state, courts have, “demonstrated a marked tendency to defer to legislative judgement and apply a relatively deferential standard of review in cases involving broad issues of social and economic policy,” (76). As such, those cases which seem to be more about morality then legality are often left up to legislators, which is good for the democratic process and strengthens the overall balance with the Court.

The court also limits itself when applying the Oakes test, a test designed to determine whether an infringement on a charter right is justifiable under section 1. The objective of the limit must be sufficiently important, there must be a rational connection between limit and objective, it must minimally impair the right, and there has to be an overall balance, “between the effects of the measure which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of ‘sufficient importance,'” (73). This test is no doubt a strong one, as it allows for a justification for the limits on rights, but only those which are absolutely necessary and which result in minimal impairment. It is important that the Supreme Court does not use this test overly strictly, especially the minimal impairment requirement. It will not strike down a law, “simply because it is possible to conceive of another measure that might be less intrusive on a protected freedom,” (75). Once again, the court is willing to restrict its own powers in favour of democratic institutions, strengthening the balance between itself and the legislators.

The balance the charter set up has also led to a “living tree,” doctrine.  This means that the charter is not restricted by the intent of the people who made it. It is allowed to grow as the nation grows, with the courts interpreting its rights in their phrasing, their context in the charter, their context historically, and their context in Canada. The Charter’s framers made its wording vague, and they did so on purpose. Their intention was always that the charter should grow and change.  Without the power of the courts to create this living tree doctrine, homosexuals would not be allowed to marry because that right is not mentioned in the charter. Also, without the living tree doctrine, the Newfoundland government may have been forced to increase the wages of nurse’s during an economic crisis. That wage increase was the nurse’s right as outlined in the charter, but the refusal to raise their wages was considered a justifiable limit under section one of the Charter because of the province’s money troubles. Such a liberal and careful approach to human rights is absolutely good for the balance of powers between legislators and the courts, and it also strengthens democracy.

The Courts give a voice to minorities and other groups of people that are underrepresented by decision makers. Prisoners do not often have a voice in Parliament; few politicians would ever take up their cause. Prisoners with sentences greater than two years used to have restricted voting rights, until the Supreme Court determined that those restrictions are illegal in Sauvé V. Canada. Homosexuality is an issue too controversial for many politicians; gays’ right to be married would probably be non-existent today without the Court’s interpretation of Charter rights. This is exactly what Trudeau wanted when he repatriated the constitution. The charter helps bring issues forward that partisan politicians would rather ignore.

There is even more historical evidence to support the Charter and the powers it gives to courts. Tawny Meiorin was discriminated against because of her sex and lost her job as a firefighter. The Supreme Court reinstated her. The Supreme Court also helped encourage rape victims to come forward by enacting the rape shield law. That law made it more difficult for a defendant to cross examine victims about their sexual past.

The arguments against the charter and the power it gives the courts are weak. Schmeiser outlines several of these arguments in his Civil Liberalism in Canada article. He claims that giving courts the power to strike down legislation will allow politicians to pass the buck on controversial issues that would be better, “left to enter the arena of public and political criticism,” (26). This is true to an extent. Politicians often try to avoid controversial issues that can cost them votes. That tactic is one of the reasons why Mackenzie King was so successful. However, politicians have a long history of avoiding controversial issues, one which goes far past 1982.  This means there should be a body that can decide these issues on a legal basis without worrying about partisan politics. Politicians will often avoid an issue that could cost votes, court or no court. This is where the so-called undemocratic nature of the court proves its usefulness, judges don’t have to worry about partisan politics when they are appointed for life.

Schmeiser also claims the courts could lose their prestige because they will be determining cases outside of their legal expertise. Many cases deal with ambiguous social and moral questions that may make it difficult for judges to remain impartial. However, politicians do not necessarily have any more expertise on these subjects then judges do, and they are almost certainly less impartial. Also, as mentioned earlier in this essay, courts are frequently willing to defer to the legislators these types of questions. Supreme Court judges put a lot of effort in determining these moral questions, taking into account the context in which a right is given in the charter, the social and political situation at the time, the overall historical context (even going so far as to quote John Locke and other political philosophers) and other factors.

Schmeiser is also afraid that courts may simply judge poorly. This is one of his weakest arguments. He cites cases where the Supreme Court of the United States, “struck down minimum wage legislation for women and children,” (27), and blocked a statute that restricted working hours for bakery employees. These cases took place over a century ago and in a different country. The courts have not shown the same tendency to make these mistakes in recent years, and have judged wisely in cases where they have both restricted rights (such as the nurses in Newfoundland) and helped the cause of rights by striking down laws (giving more voting rights to prisoners). The Supreme Court of the United States even overturned the cases Schmeiser cited.

Schmeiser also claims courts will be partisan, that, “desired policies can be (and have been) secured by selecting judges with appropriate personal views,” (29). This is a legitimate concern. However, judges are still legal experts with years of experience that are called to be impartial, even if no one is policing them. Politicians may appoint judges with similar political views, and those judges are appointed for life. However, those politicians were elected because of their political views, so these appointments are still part of the democratic process and reflect the wishes of the people during a certain time period. In the United States there is a vigorous screening and public hearing process for Supreme Court Appointees and Canada may benefit from such a process. However, it is still difficult to argue against what is essentially the most democratic aspect of judicial review.

Finally, Schmeiser suggests that putting courts in charge of rights, “unduly fosters litigation, much of which is frivolous as well as expensive,” (29). Again, this may be true, but it is a misleading argument. Canadians live in a system where it is considered better to let ten guilty men go then jail one innocent man. There may be some frivolous litigation, but that litigation may be necessary in order to address important cases, and must be outside the norm. Sharpe and Roach address this criticism well when they say, “the very notion of a right is that it must be given priority over other claims and not made subject to such utilitarian concerns such as cost and administrative inconvenience,” (82). Those authors are referring to cost in relation to the government using it as an excuse to limit rights, but it also applies in this case. There is nothing wrong with streamlining the process of human rights and reducing cost as much as possible, and a lot of frivolous cases are thrown out before cost really becomes that much of an issue. However the charter is far too important to throw the baby out with the bathwater, especially when the bathwater in this case is of fairly minor importance.

A great balance has been struck between the Judiciary and the legislators in the Canadian Charter of Rights and Freedoms. It was created democratically, and it uses the courts in the best possible way enshrine rights and enhance democracy. The Charter gives courts the power to strike down laws that violate rights, but does not really give them the final say, encouraging a democratic dialogue with legislators. The balance takes power out of the hands of partisan politicians who will oftentimes ignore important issues that are too controversial. The balance also allows Courts to interpret their own powers liberally, giving certain parts of it back to legislators. The balance works in theory, has worked well historically, and stands up well to its criticisms.


Schmeiser, D. (1964). Civil Liberties in Canada. Oxford: Oxford University Press.

Sharpe, R. J. and Kent Roach (2005). The Charter of Rights and Freedoms . Toronto: Irwin Law.

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The Charter and Same Sex Marriage

The Balance Works: Same-Sex Marriage and the Charter

St. Thomas University

21 April 2008

Same sex marriage is a controversial issue in Canada, and in countries all over the world. The government, under Prime Minister Paul Martin, legalised same sex marriages when it passed bill c-38 in 2005. This bill was a crucial step forward in the fight for human rights in Canada. It gave power to an identifiable and long suffering minority. Court rulings leading up to the passing of the legislation proved that homosexuals are protected by its equality rights under the Charter. More rulings in provincial courts began the process of re-defining the definition of marriage across the country. The right to same sex marriage embodies all that the charter is meant to be. It is the result of the democratic dialogue between politicians and courts, and Canadian democracy is better off for it.

Gays, lesbians and same sex couples have been fighting for equality rights for years. The first major step toward recognition of their equality rights was in Egan V. Canada. This 1995 court case saw the Supreme Court uphold a decision that made homosexuality an analogous ground under s. 15 of the Charter of Rights and Freedoms. However, it did not give Egan and his partner all of the rights they were seeking. They were still not considered spouses, and they did not get the benefits married couples had. The federal government gave benefits to common-law couples, “regardless of sexual orientation[1], but this had not yet given homosexuals substantive equality country-wide. Some provinces also created domestic registries where same-sex couples were extended the rights of married couples, but this was still not completely equal to being recognized as legally married.

The debate over same sex marriage continued to rage until it was legalized in 2005, and it is still very controversial. After Egan, court cases over the definition of marriage were being filed across the country. Ontario, BC, Quebec, the Yukon, Manitoba, Nova Scotia Saskatchewan, and New Brunswick (although that province just squeaked under the wire) had legalized same sex marriage before the federal government. The provincial court cases that changed the definition were a watershed that led parliament to legalize same sex marriages

Ontario was the first province to legalise same sex marriage. This came about thanks to Hedy Helper, her partner Colleen Rogers, and six other same-sex couples. They were married in a progressive church, where a minister had found an obscure Ontario law that allowed marriages to be recognized as legal without a licence, so long as wedding bans were published before a couple was married.  After being married, the couples went to city hall and tried to acquire marriage licences. They did not fit the definition of, “one man and one woman, to the exclusion of all others,” [2]. As such, the applications were stayed until a court hearing could determine whether same sex couples had the right to marry. The Divisional Court found that, “the common law definition of marriage as the ‘lawful and voluntary union of one man and one woman to the exclusion of all others’ infringed on the couples’ equality rights under s. 15(1) of the Charter in a manner that was not justified under s. 1 of the Charter,”[3]. (Edwards v. A.G. of Canada[1930] A.C. 124) This was a major victory, but it was far from the end of the case.

The Divisional Court ruling was appealed by the Attorney General of Canada. It then went before the Ontario Court of appeal. The court used precedent from both BC and Quebec in its decision, saying the BC Court of Appeal, “declared to common law definition of marriage unconstitutional, substituted the words, ‘two persons’ for, ‘one man and one woman,'”[4]. That decision made it easier for the Ontario court to determine that same sex marriage is a right. It also demonstrated how consensus over the right of same sex couples to marry, at least in the legal world, was being built across the country.

The court had to answer several questions: “what is the ‘common law definition of marriage? Does it prohibit same sex marriages,”[5], whether the definition infringed on the couples’ rights, whether the infringement could be justified under s. 1 of the charter, and what remedy should be given.

The couples argued that there was, “no common law bar to same-sex marriages,”[6]. The court disagreed, as the definition of one man and one woman was outlined, in the Modernization of Benefits and Obligations Act. However, the court did not hold that the traditional definition of marriage was entrenched in the charter, because, “to freeze the definition of marriage to whatever meaning it had in 1867 is contrary to this country’s jurisprudence of progressive constitutional interpretation,”[7] , The Court said, ” the term ‘marriage’ … has the constitutional flexibility necessary to meet changing realities of Canadian society,”[8]. Again, as in the Divisional Court case, this shows a respect for the living tree doctrine with which the charter is meant to be interpreted.

The court then looked at the right to same-sex marriage in terms of a section 15 requirement of the charter, which says, “every individual is equal before and under the law … without discrimination,”[9]. As mentioned before, homosexuality is an analogous ground under section 15. The judges used a three step test to determine whether the denial of same-sex marriage violated a person’s rights under section 15. The court found that the restriction on a same-sex couple was a violation of that right, as it, “creates a formal distinction between opposite-sex couples and same-sex couples on the basis of their sexual orientation,” which is the first part of the test. The second part was whether, “the differential treatment identified under stage one of the inquiry is based on an enumerated and analogous ground,”[10]. The court was satisfied that sexual orientation, “is the basis for such differential treatment,” [11] and as such fulfilled the requirement. The final aspect of the test, “whether the differential treatment imposes a burden upon, or withholds a benefit from, the claimants,”[12] was also satisfied. This is because, “the dignity of persons in same sex relationships is violated by the exclusion of same sex couples from the institution of marriage,”[13].

Having found that the couples’ were being discriminated against, the court had figure out if that section 15 violation was justifiable under the Charter’s section 1, “reasonable limits,” clause. The Oakes test was used to determine this, as is the standard. The first part of the Oakes test requires that, “the object of the law is pressing and substantial,”[14]. There are two questions in determining this first part of the test, “(i) the objective(s) of the impugned law must be determined; and (ii) the objective(s) of the impugned law must be evaluated to see if they are capable of justifying limitations on Charter rights,”[15]. The court determined that marriage is a fundamental institution, and that it is traditional between people of opposite sex. However, it said that the question that mattered was, “whether there is a valid objective to maintaining marriage as an exclusively heterosexual institution,”[16]. Since the court found that not allowing same-sex couples to marry harms their dignity, it must be, “contrary to the values of a free and democratic society,” and as such cannot be justified. Essentially, the court found that there is no reason to cause harm to the dignity of homosexuals by denying them a right, when no harm would come to anyone as a result of those couples gaining that right.

The Attorney General argued, “marriage, as a core foundational unit, benefits society in that it has proven itself to be one of the most durable institutions for the organization of society,” (116). The Court agreed. The Court also agreed with the Attorney General that, “Marriage has always been understood as a special kind of monogamous opposite-sex union,”[17]. The Court applied the first part of the Oakes test, whether the objective of restricting the right was pressing and substantial

The court found that the Attorney General had three main points in the argument. The first was that marriage is crucial for “uniting the opposite sexes,”[18]. The judges said this suggested uniting opposite sexes, “results in favouring one form of relationship over another,” [19], and, “suggests that uniting two persons of the opposite sex is of lesser importance,”[20]. This causes harm to the dignity of same sex couples, and was not accepted as pressing and substantial as a result.

The second point was that marriage is important for procreation and child raising, and that these would be harmed if the definition was changed.  The Court said traditionally-married couples will keep having children even if homosexuals are allowed to marry. Also, the court found that by extending the right of marriage to same-sex couples, they would be able to more easily adopt children. The Cout also said same-sec couples are able to have children through, “surrogacy and donor insemination,”[21]. This meant that there could be a tangible benefit in terms of child rearing in Canada if same-sex couples were allowed to marry, and that the Attorney General’s argument ignored the fact that, “same-sex couples are capable of having children,”[22]. The court found that there is no evidence to suggest, “that same-sex couples are not equally capable of childbearing,”[23], and that the belief that they were not equally capable was simply a stereotype.  As such, the court found the second argument was not, “a pressing and substantial objective of maintaining marriage as an exclusively heterosexual institution,”[24],

The third argument was that opposite-sex marriages must be protected in order to promote companionship. The Court said same-sex marriage would equally promote companionship, and as such this argument is false. None of the arguments were accepted, so the court found that the restriction against marriage for same-sex couples failed the Oakes test because it has no, “pressing and substantial objective,”[25]. As such, the restriction could not be justified under section 1 of the charter

Since the restriction definition of marriage failed the first part of the Oakes test, the Supreme Court only briefly outlined the second, “proportionality analysis,”[26] part of the test.

Rational connection is the first requirement of the proportionality analysis. The Attorney General said that the rational connection between restricting same-sex marriage and keeping marriage as a stable institution was, “self evident,”[27], because marriage is so historically significant and such an important institution. Since same-sex couples did not want to abolish marriage, but have access to it, this argument was not accepted. The Court also found that the child bearing and companionship aspects of the Attorney General’s arguments were not rationally connected to maintaining the traditional definition of marriage.

Minimal impairment is the second part of the proportionally argument. The Attorney General said allowing, “no-fault divorce,”[28], resulted in very high divorce rates and destabilized marriage. The argument went on to say that re-defining marriage would do the same. As such, there is nothing that would both keep marriage stable and result in less impairment to same-sex couples then maintaining the traditional definition of marriage. The Court disagreed, calling the argument, “speculative,”[29]. The Attorney General also said same-sex couples have essentially all the same rights of opposite-sex couples. The Court flat-out disagreed and said legal recognition is required for equality.

The third part of the proportionality analysis, “Proportionality between the effect of the law and its objective,”[30], was not met. This is because the  Attorney General’s arguments failed  the first two parts of the proportionality analysis.

The judges in Halpern decided to give the couples all they asked for in their decision. They declared the definition of marriage invalid, and substituted, ‘one man and one woman,’ for “the voluntary union for life of two persons to the exclusion of all others,”[31]. They decided to give this decision immediate impact, as opposed to holding off for a two year period, (as had been done in other jurisdictions). They also ordered Toronto’s city clerk to issue marriage licences to same sex couples.

This case was an extremely important one. It demonstrated a great use of the charter and proved that it was not useless and frozen in time. Judges stepped in where politicians had not, and ordered that a distinct and disadvantaged group be granted a more substantive equality. The cases redefining marriage had a powerful impact across the nation. It was not long before the federal government had to act.

The Reference re Same Sex Marriage was came about in 2004. The federal government noticed that provincial courts were changing the definition of marriages. These courts had no power federally, but nonetheless politicians were willing to take a small step. The federal government  posed a questions to the supreme Court about the constitutionality of same-sex marriage (probably to avoid having to answer the questions themselves), and then legislators changed the definition. This is a great example of that democratic dialogue working to help a disadvantaged group.

The Attorney General posed several questions to the Supreme Court of Canada about the proposal for an act to change the definition of marriage. They were: whether the Parliament of Canada had the authority to pass its act redefining marriage, whether section one of the proposal, which gave same sex persons the right to marry, was consistent with the Charter, whether religious officials would be protected from being forced to marry same sex couples under the Charter, and whether, “the opposite-sex requirement for marriage for civil purposes,”[32]is consistent with the Charter.

The SCC found that the act was, “intra vires parliament,”[33]. Section 91 (26) of the Constitution Act gives parliament the power over, “marriage and divorce,” and does not define marriage in a way that excludes same-sex marriage. The court added that the frozen concepts argument does not apply because that “reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our constitution is a living tree,”[34], another affirmation of the living tree doctrine. The court also said changing the definition of marriage would impact on the solemnization of marriage, which is under jurisdiction of the provinces, but that, “the effects are incidental and do not relate to the core of the power,”[35].

The Court went on to say that the first section of the proposal, the new definition of marriage, is consistent with the charter. It said the purpose of doing this, “far from violating the charter, flows from it,”[36]. It added that, “the promotion of Charter rights and values enriches our society as a whole and the furtherance of those rights cannot undermine the very principles the Charter was meant to foster,”[37]. The Court is stating that although the right to marriage between same-sex marriage is not exclusively outlined in the Charter, it clearly falls under the purpose of the Charter, must be respected, and will make society better as a result. The court also said possible conflicts with freedom of religion may arise when the government’s bill is passed, but that they will not be, “incapable of resolution,”[38].

In answering the third question, the court expanded on these possible religious conflicts. It said, “the guarantee of religious freedom in s. 2(a) of the Charter is broad enough to protect religious officials from being compelled by the state to perform civil or religious same-sex marriages that are contrary to their beliefs,”[39]. This is another example of the Charter working as it was intended. It guarantees freedom and equality to  both gay couples and religious officials. This happens by giving same-sex couples freedom to marry, but without forcing religious officials to conduct the service if it conflicts with their beliefs. It is a happy medium where no one is disadvantaged or harmed.

The Court declined to answer the final question of whether the opposite-sex requirement for civil purposes is constitutional. This was not because of a fundamental issue within the Charter, but rather because the court felt its answer could only serve to either harm the cause of human rights or throw the law into confusion. Saying the requirement is constitutional would create problems across the country, especially in the six jurisdictions where same-sex marriage was already legal. Saying no would create “uniformity,”[40] across the country, but it was unnecessary when the government was planning to pass legislation that would have the same effect anyway. This again shows how strong the charter is. It encourages a democratic dialogue and allows the court to defer to legislators when their ruling could possibly bring confusion. This shows the balance of power and helps Canadian democracy.

After the reference question, Paul Martin’s government passed Bill C-38. It changed the definition of marriage to, “the lawful union of two persons to the exclusion of all others,”[41]. It also “recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs,”[42], laying down a very important rule that reassured many Canadians who oppose same-sex marriage. The bill also made it clear that, “no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction,”[43] because of the new definition. The bill also changed the definition of spouse in the divorce act to not reflect gender, and made amendments to several acts to make them apply to same sex couples.

The legalisation of same-sex marriage was a long process. It started in Courts and ended in parliament. It was the result of the living tree doctrine inherent in the Charter, and of the democratic dialogue the Charter encourages. The decision is still very controversial in Canada, the Alberta government actually used the non-withstanding clause against the new definition of marriage until 2005, but it is a good, beneficial decision. It serves to end stereotypes about and give better equality to a marginalized group. There were no real reasons outside of speculation and misconception to not legalize same-sex marriage, and Canada is better off for its progressive, and very legal, stance.

Works Cited:

Bill C-38. An Act respecting certain aspects of legal capacity for marriage for civil purposes 1st

reading, June 28th,2005, 38th Parliament, 1st session, 2005. (Online). Ottawa: Public Works and Government Services Canada, 2005. Available:

The Charter of Rights and Freedoms, Government of Canada, 1982. Online. Available at:

Halpern et. al. Vs. Attorney General of Canada et. al. (2003) 28 (ONT. C.A.)

Reference re. Same Sex Marriage (2004) (S.C.C.)

[1] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) 28 (ONT. C.A.)

[2] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) 1 (ONT. C.A.)

[3] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) 16 (ONT. C.A.)

[4] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.33 (ONT. C.A.)

[5] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.25 (ONT. C.A.)

[6] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.35 (ONT. C.A.)

[7] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.41 (ONT. C.A.)

[8] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.46 (ONT. C.A.)

[9] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.59 (ONT. C.A.)

[10]Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.73 (ONT. C.A.)

[11]Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.75 (ONT. C.A.)

[12] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.77 (ONT. C.A.)

[13] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.108 (ONT. C.A.)

[14] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.113.1 (ONT. C.A.)

[15] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.114 (ONT. C.A.)

[16] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.117 (ONT. C.A.)

[17] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.116 (ONT. C.A.)

[18] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.118 (ONT. C.A.)

[19] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.119 (ONT. C.A.)

[20] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.119 (ONT. C.A.)

[21] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.122 (ONT. C.A.)

[22] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s122 (ONT. C.A.)

[23] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.122 (ONT. C.A.)

[24] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.121 (ONT. C.A.)

[25] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.125 (ONT. C.A.)

[26] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.127 (ONT. C.A.)

[27] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.128 (ONT. C.A.)

[28] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.133 (ONT. C.A.)

[29] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.134 (ONT. C.A.)

[30] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.139 (ONT. C.A.)

[31] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.156.2 (ONT. C.A.)

[32] Reference re. Same Sex Marriage (2004) Q.1 (S.C.C.)

[33] Reference re. Same Sex Marriage (2004) Q.1 (S.C.C.)

[34] Reference re. Same Sex Marriage (2004) Q.1 (S.C.C.)

[35] Reference re. Same Sex Marriage (2004) Q.1 (S.C.C.)

[36] Reference re. Same Sex Marriage (2004) Q.2 (S.C.C.)

[37] Reference re. Same Sex Marriage (2004) Q.2 (S.C.C.)

[38] Reference re. Same Sex Marriage (2004) Q.2 (S.C.C.)

[39] Reference re. Same Sex Marriage (2004) Q.3 (S.C.C.)

[40] Reference re. Same Sex Marriage (2004) Q.4 (S.C.C.)

[41]Bill C-38. An Act respecting certain aspects of legal capacity for marriage for civil purposes 1st reading, June 28th, 2005, 38th Parliament, 1st session, 2005. (Online). Ottawa: Public Works and Government Services Canada, 2005. Available:

[42]Bill C-38. An Act respecting certain aspects of legal capacity for marriage for civil purposes 1st reading, June 28th, 2005, 38th Parliament, 1st session, 2005. (Online). Ottawa: Public Works and Government Services Canada, 2005. Available:

[43] Bill C-38. An Act respecting certain aspects of legal capacity for marriage for civil purposes 1st reading, June 28th, 2005, 38th Parliament, 1st session, 2005. (Online). Ottawa: Public Works and Government Services Canada, 2005. Available:

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