
Contents
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I. Introduction I. Introduction
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II. Criteria for Identifying Analogous Grounds II. Criteria for Identifying Analogous Grounds
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A. Nature of the Ground on Which the Unequal Treatment Is Based A. Nature of the Ground on Which the Unequal Treatment Is Based
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157B. Use of the Ground as a Basis for Unequal Treatment 157B. Use of the Ground as a Basis for Unequal Treatment
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III. Is a distinction Based on an Analogous Ground ‘Discrimination’? III. Is a distinction Based on an Analogous Ground ‘Discrimination’?
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IV. Is Sexual Orientation an Analogous Ground? IV. Is Sexual Orientation an Analogous Ground?
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A. Response of the Canadian Legal Community to Date A. Response of the Canadian Legal Community to Date
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B. Which Criteria Should Be Applied? B. Which Criteria Should Be Applied?
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6 The Canadian Charter of Rights and Freedoms: Sexual Orientation under Section 15(1)
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Published:July 1993
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Abstract
The Canadian Supreme Court, at the time of writing this book, had yet to decide a case of sexual orientation discrimination under the Canadian Charter of Rights and Freedoms and Section 15(1). In 1969, following the lead of England and Wales in the Sexual Offences Act 1967 and using very similar language, Canada amended the Criminal Code provisions dealing with so-called ‘buggery’ (which applied to both same-sex and opposite-sex anal intercourse) and ‘gross indecency’ (which applied to sexual acts between any two persons, and therefore potentially to all sexual activity between men or between women, and to opposite-sex oral intercourse). This chapter examines the criteria that should be used to identify ‘analogous grounds’ of discrimination under Section 15(1) and looks at two potential criteria: analogous grounds as either ‘immutable statuses’ or ‘fundamental choices’.
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