Rights in Exile Programme

Refugee Legal Aid Information for Lawyers Representing Refugees Globally

Canada LGBTI Resources

GENERAL OVERVIEW

LGBTI rights in Canada are among the most progressive and advanced in the world. Similarly, Canada has a long tradition of humanitarian action for refugees through its asylum and resettlement policies and programs. As such, Canada has often been considered a country accepting of those who flee persecution based on their sexual orientation and/or gender identity. That said, there remain significant challenges during all stages of the asylum/resettlement process for such persons, not least in the most recent period.

 

International Law

Canada is signatory to various international treaties and human rights declarations that include prohibitions of discrimination based on sexual orientation and gender identity, such as the ICCPR, ICESCR and other agreements which aim to uphold essential human rights.

National Law

Canada is a federation of provinces. Although some diversity in the adoption of laws regarding LGBTI persons has existed, Canada remains at the forefront of LGBTI rights, including but not limited to: same-sex marriage, same-sex adoption, and non-discrimination based on HIV status. The age of consent for anal sex is 18, as opposed to 16 for other sexual activities, although this law has been declared unconstitutional. For a full overview, please see the University of Toronto’s SOGI Legislation Country Report of 2012 here.

State Resources

An in-depth and up-to-date detailed overview of the refugee system in Canada provided by the Canadian government, including information on how to apply for refugee status from within/outside Canada, can be found here.

 

CASE LAW

Sadeghi-Pari v. Canada (Minister of Citizenship and Immigration), 2004 FC 282

In 2004, the Federal Court overruled an Immigration Board decision that a woman should conceal her sexual orientation to avoid persecution, arguing that 'expecting an individual to live in such a manner could be a serious interference with a basic human right, and therefore persecution'. This ruling consolidated the notion that refugees would not be expected to conceal their sexual orientation or gender identity to return safely.

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, Canada: Supreme Court, 30 June 1993

In this landmark case, the Court ruled that one should not be forced to be discrete about one’s sexual orientation or gender identity in the country of origin, and also that the requirement for concealment of one’s LGBTI identity amounted to persecution itself.

Special Note: Bill C-31

In 2012, the Protecting Canada’s Immigration System Act (Bill C-31) received Royal Assent, bringing further reform to the asylum system. Concerning LGBTI refugees and SOGI claims, Canada began to recognise ‘Designated Countries of Origin’ [DCO] – countries which do not normally produce refugees and normally offer state protection. Among such ‘safe countries’ is Mexico, from which Canada’s Immigration Board receives numerous claims for SOGI protection. The summary of changes and how they affect SOGI claimants can be found here.

 

PUBLIC ATTITUDES AND/OR STATE'S CAPACITY TO PROTECT

Overwhelmingly, laws prohibiting discrimination on grounds of sexual orientation are upheld in Canada. In 2010, it was found that seven out of every ten Canadians supported same-sex marriage. A majority of Canadians support gay marriage for example.

That said, there is important critical research being conducted in Canada. In September 2015, Envisioning Global LGBT Human Rights published a report entitled ‘Envisioning LGBT Refugee Rights in Canada: Is Canada a Safe Haven?’. The report examines the experiences of LGBT refugee claimants and refugees living in the Greater Toronto area and the experiences of community workers providing services to this population. In its executive summary, the report:

'points to the need for a larger vision of systematic change with regard to the RSD system for LGBT asylum seekers, and argues that LGBT refugees require greater secure access to services such as housing, employment, and healthcare.'

Specifically on the claims process, the report states that the aforementioned reform to the Immigration System Act reduces the timeline for claimants’ application to the extent that it has a detrimental extent for LGBT refugees.

Additionally, the report states that decision makers continue to ask LGBT persons for affirmation or proof of their sexual orientation or gender identity, using a Western framework of terms which might not always be translatable for many facing SOGI persecution. The report suggests that greater emphasis needs to be placed on the threat of persecution rather than searching for proof of identity.

 

NON-GOVERNMENTAL ORGANIZATIONS (NGOs)

We do not currently list any LGBTI NGOs in Canada, but we welcome suggestions.

 

COUNTRY OF ORIGIN SPECIALISTS

We do not currently list a specialist in LGBTI issues in Canada, but we welcome suggestions.

 

Researched by: Matthew Clare

Email: matthewthomasclareatgmail [dot] com

 

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