Sexuality in Long-Term Care: Issues in Legislation and Practice
By Judith Wahl Do residents of long-term care homes, who are primarily older adults, have the right to engage in sexual expression if they so choose, while living in that environment? Judith Wahl of the Advocacy Centre for the Elderly is exploring this question in her research to provide a legal framework that will ensure privacy and appropriate support for persons who can consent to engage in intimate sexual relationships, while protecting those who cannot so consent from sexual exploitation and abuse.
Homosexuals and the Holocaust: Commemoration of Queer Histories
By Milé Komlen Several jurisdictions around the world have enacted legislation to proclaim Holocaust Memorial Day, and the international LGBT community has long recognized the importance of preserving the memory of the Holocaust as a horrific chapter in human history. The legislative enactments are based on the understanding that there are important lessons to be learned from the Holocaust (as well as other more recent genocides) in fostering a society that acknowledges and respects differences and our shared humanity.
Toronto lawyer Joanna Radbord is the recipient of the CBA SOGIC 2008 Hero Award, in recognition of her exceptional contributions made in the cause of equality for lesbian, gay, bisexual, transgendered and two-spirited people (LGBTT).
Note: The Ontario Human Rights Commission No Longer Accepts Complaints
Ontario's Human Rights Code Amendment Act, 2006, S.O. 2006, c. 30 came into effect on June 30, 2008. As a result, the Ontario Human Rights Commission (OHRC) will no longer accept complaints of discrimination. All new applications alleging discrimination are to be filed with the Human Rights Tribunal of Ontario. Complaints that were filed with the commission before June 30, 2008 can be changed to applications to the tribunal if the complainant takes an active step to do so.
The Regulation of Sexuality: How far have we come in achieving equality and acceptance?
By Audrey DeMarsico
Have we as a community achieved dignity for LGBT people in Canada? Have we changed our society in such a way that our desire is no longer regulated by institutions? Or have we become complacent as a result of our achievements in obtaining technical equality, when we could be pushing harder for full acceptance? These are some of the questions panellists grappled with at the Pride Reception hosted by the Sexual Orientation and Gender Identity Section and the Law Society of Upper Canada on June 24, 2008. The topic of discussion was the regulation of sexual identity, behaviour, and expression in contemporary Canadian law.
Sexual Orientation and Gender Identity is published by the Sexual Orientation and Gender Identity Section of the Ontario Bar Association. Members are encouraged to submit articles. The articles that appear in this publication represent the opinions of the authors. They do not represent or embody any official position of, or statement by, the OBA except where this may be specifically indicated; nor do they attempt to set forth definitive practice standards or to provide legal advice. Precedents and other material contained herein are intended to be used thoughtfully, as nothing in the work relieves readers of their responsibility to consider it in the light of their own professional skill and judgment.
Sexuality in Long-Term Care: Issues in Legislation and Practice
Judith Wahl*
Do residents of long-term care homes, who are primarily older adults, have the right to engage in sexual expression if they so choose, while living in that environment? The simple answer would be “yes” although there may be challenges in this type of “health accommodation” to find appropriate privacy. Equally, residents should have the expectation that if they do not want to engage in such activities, or if they are not mentally capable of consenting or refusing consent to such activities, that they will be protected from sexual exploitation and sexual assault, as the long-term care home operator has a duty of care to protect the residents living there. The challenge is how to support normal sexuality in this type of group living environment, while ensuring protection for residents from unwanted activities, particularly since a large proportion of the residents have a degree of dementia and may or may not be able to provide consent.
Lawyers at the Advocacy Centre for the Elderly (ACE) started looking at these issues after they were asked to review a specific sexuality policy that had been developed at a long-term care home. As well, ACE has been contacted on a few occasions in the past in respect to allegations of sexual assault of residents in long-term care homes. As the new Long Term Care Homes Act (Ontario), specifically defines “abuse” as including sexual abuse (s. 2(1)) and places obligations on operators to develop written policies on abuse prevention, it seemed prudent to do legal research on this issue so that ACE would be in a position to review these new policies for the benefit of our clients who reside in long-term care and their families. The Act is expected to be proclaimed into law some time this year.
To the credit of many long-term care home operators, they are trying to create a “normal” home environment in the long-term care homes, while recognizing that these are regulated health-care facilities. This is reflected in everything from changes in the physical environment at the homes to include coffee shops, garden areas, internet “café” areas, to the presence of home “pets” (usually cats and birds), the dress of staff, and encouragement to residents to decorate their rooms with personal photos and mementoes. There is an increasing recognition of sexuality as part of life of residents in long-term care and an increasing effort to appreciate the individuality of residents and their diversity in sexual orientation and gender identity. There is also an increasing recognition of their right to privacy.
To address sexuality and to comply with the legislative requirements for written policies about abuse prevention, some home operators are looking to develop policies, as well as providing training and support for staff to help them respond with professionalism and acceptance, to expressions of sexuality, and to identify and address actions that may potentially develop into abuse if not addressed.
During legal research on these issues, it became clear that there are many “thorny” issues related to sexuality and in understanding the legal framework related to sexuality.
Some issues are easy, or easier to find answers for. Home policies will likely reflect that there are to be no sexual relations between staff and residents, as differentiated from “appropriate” touching and expressions of affection that are non-sexual. As well, it is clear that home operators have a duty of care to residents, which includes keeping residents safe from harm including safe from sexual exploitation, sexual assault and sexual abuse.
As well, it is easy to say that mentally capable residents in long-term care who so consent have the right to engage in sexual expression, including intimate sexual relationships. Family members cannot determine what mentally capable and consenting residents can or cannot do in the way of sexual expression.
The law does not allow that people can “pre-consent” to sexual activity. A person must give consent at the time of the activity. Therefore, it is not possible to express in a Power of Attorney for Personal care that if a person should become mentally incapable to give consent to sexual intimacy, he or she would still want to engage in such activities, as if capable to consent.
A “substitute decision maker,” such as an attorney named in a Power of Attorney for Personal Care or a family member who is the health decision maker for that person by reason of the Health Care Consent Act (Ontario), would be authorized to make decisions about health care for a resident who is mentally incapable for this purpose. But this person cannot “consent” on behalf of the resident to sexual activity by that resident. There is no “substitute consent” to sexual activity in the law. It should be noted that a number of health professionals told ACE lawyers that they assumed that family could give such consent for an incapable person.
As consent is required, what is the test of mental capacity to consent to sexual activity? Who determines this capacity and how is it determined? When does someone have the obligation to determine capacity for this purpose? Is there such an obligation in these circumstances in the long-term care home and why?
As a large number of people who live in long-term care homes have dementia, can they consent to intimate sexual activity? Just because a person has dementia does not mean that person is “mentally incapable” for all purposes or at all times. How does this impact on intimacy and, from a legal perspective, on consent?
When and how should staff in a long-term care home intervene to support a relationship between two residents, to provide privacy for residents, to divert incapable residents into safe expressions of sexuality, to stop residents from particular sexual activities if they lack capacity to consent?
Sexual expression is a normal part of a healthy life. People who live in long-term care homes should be able to engage in and participate in “normal” living, which includes the right to sexual expression. What is the legal framework that will ensure privacy and appropriate support for persons who can consent to engage in intimate sexual relationships, while protecting those who cannot so consent from sexual exploitation and abuse? Through this legal research, we hope to understand and find a way to articulate the legal framework that can be used to strike this important balance.
* Judith Wahl, Barrister and Solicitor, Advocacy Centre for the Elderly, Toronto.
Homosexuals and the Holocaust: Commemoration of Queer Histories
Milé Komlen*
Several jurisdictions around the world have enacted legislation to proclaim Holocaust Memorial Day, and the international LGBT community has long recognized the importance of preserving the memory of the Holocaust as a horrific chapter in human history. The legislative enactments are based on the understanding that there are important lessons to be learned from the Holocaust (as well as other more recent genocides) in fostering a society that acknowledges and respects differences and our shared humanity.
Canadian provinces, starting with Ontario in the 1990s, passed laws proclaiming the commemoration. The federal government soon followed suit in 2003. The day is celebrated around the world during various times of the year, and in Ontario, it is determined by the Jewish lunar calendar (usually around the end of April).
The day is intended to memorialize the millions of people who died during the Nazi regime of World War II, including Jews, other religious and political minorities, Black and Slavic peoples, Gypsies (Roma and Sinti peoples), persons with disabilities, gay men, lesbians, bisexuals and trans-identified individuals, along with many other groups deemed by the Nazis to be “racially inferior, asocial or impure”.
The preamble to the Ontario Holocaust Memorial Day Act, 1988, S.O. 1998, c.5, states in part:
Six million Jewish Holocaust victims were murdered. Others were also victims of Nazism and its collaborators, including those with physical and mental disabilities, those targeted for racial and religious reasons and those targeted because of their sexual orientation.
The persecution of homosexuals began in 1935, when Nazi jurists undertook an extensive overhaul of the German criminal code. Laws, such as those contained in Paragraph 175 of the code, were re-written to broaden the scope of the prohibition against "indecencies between men" from a narrow interpretation of an intercourse-like act, to include virtually any contact between men deemed to have sexual intent, including "simple looking" or "simple touching."
The revamped criminal code provisions came into effect on September 1, 1935. The historical record shows that between 1936 and September 1, 1939, at the outbreak of World War II, nearly 78,000 men were arrested for violating Paragraph 175. Since homosexuality was ordinarily deemed to be a mental illness, some men were institutionalized while others were forced to choose between "voluntary" castration and imprisonment. Hundreds more were interned in concentration camps beyond the purview of the legal process.
The intensity of the campaign against homosexuals increased after the outbreak of the war. Those sent to concentration camps under Paragraph 175 were often subjected to physical and sexual abuse by camp guards and fellow inmates. Most camps used a prisoner identification scheme of coloured triangles sewn onto prison uniforms, such as the two overlapping yellow triangles of the “Star of David” that were used to identify the Jewish prisoners. The “175ers” were forced to wear pink triangles while black triangles identified lesbians, making both groups easily identifiable by other inmates. Fearing guilt-by-association, fellow prisoners shunned them, leaving them isolated and powerless within the prison hierarchies.
Precise figures on the number of homosexuals killed in Nazi death camps have never been accurately established, but estimates range from 10,000 to 15,000. Some have even claimed that as many as a million homosexuals may have been sent to their deaths by being forced into hostile combat zones along the Eastern front.
Following the war, many gays and lesbians faced persistent obstacles to having their histories recognized. For instance, homosexuality was not decriminalized in Germany until 1969, which meant that homosexuals continued to face arrest and intimidation well after the end of World War II. Moreover, no widespread “gay rights” movement existed until the 1970s, and it wasn’t until the 1980s that the President of Germany finally recognized the unjust and inhumane treatment of homosexuals that had occurred during the Nazi era. But it was already too late for many Holocaust survivors who continued to face discrimination in the post-War period. Unlike other groups that were able to mobilize their communities to assert their rights, the ongoing stigma facing queer survivors of the concentration camps meant that few survivors would ever come forward to tell their stories until well after the war.
When the gay liberation movement gained prominence, the Pink Triangle was reclaimed by activists who sought to preserve the lived histories of queer communities. The triangles were used as symbols of pride and are reminders of a horrific past. They also represent the hope that individuals will no longer be persecuted merely for their sexual preferences.
While some have accused the gay liberation movement of exploiting the Holocaust for its own aims, the social elimination of homosexuals in Nazi Germany is a matter of historical fact. Highlighting these atrocities is in no way intended to diminish the suffering of millions of Jews during the Second World War. Instead, it is intended to shed light on the systematic methods through which the Nazis persecuted a variety of groups during this period.
In designating a commemorative day to recognize all of the atrocities of the Holocaust, the Ontario legislation states:
It is appropriate to establish a Holocaust Memorial Day – Yomha-Shoah in Ontario to commemorate the victims of the Holocaust of 1933-1945. Such a day would provide an opportunity to reflect on and educate about the enduring lessons of the Holocaust. This day shall also provide an opportunity to consider other instances of systematic destruction of peoples, human rights issues and the multicultural reality of modern society.
The lessons of the Holocaust need to be preserved to remind us that hatred against any group must always be confronted and challenged. We can all serve as allies in the struggles for human rights and social justice. It has taken a long time to persuade mainstream society about the value of human diversity, and there is still much work to be done to ensure that such global tragedies never happen again.
* Milé Komlen, Director of Human Rights & Equity Services at McMaster University.
Toronto lawyer Joanna Radbord is the recipient of the CBA SOGIC 2008 Hero Award, in recognition of her exceptional contributions made in the cause of equality for lesbian, gay, bisexual, transgendered and two-spirited people (LGBTT).
"Joanna Radbord has been heavily involved in some of the most important equality rights cases to advance the rights of LGBTT persons across Canada,” said Sean Foreman, SOGIC Past Chair. “Radbord is also a young lawyer, so her excellent work in this area bodes well for the continued success we have seen in expanding the definition of ‘family’ and ‘equality'.’”
Congratulations to Joanna on this well-deserved recognition for her accomplishments.
Note: The Ontario Human Rights Commission No Longer Accepts Complaints
Ontario’s Human Rights Code Amendment Act, 2006, S.O. 2006, c. 30 came into effect on June 30, 2008. As a result, the Ontario Human Rights Commission (OHRC) will no longer accept complaints of discrimination. All new applications alleging discrimination are to be filed with the Human Rights Tribunal of Ontario. Complaints that were filed with the commission before June 30, 2008 can be changed to applications to the tribunal if the complainant takes an active step to do so.
Milé Komlen is a Canadian lawyer specializing in human rights law, corporate social responsibility and diversity management. He has over 20 years of experience promoting human rights and implementing diversity strategies in a variety of business, community and institutional settings.
Milé is currently the Director of Human Rights & Equity Services at McMaster University in Hamilton, Ontario. As a member of the university’s Senior Management Team, he advises the university on diversity and inclusive initiatives, and oversees human rights consultations and complaints. In his previous employment, Milé was the Senior Diversity Consultant with the Canadian Imperial Bank of Commerce (CIBC) in Toronto for nearly six years. In this role, he provided strategic guidance on employment equity and diversity initiatives throughout the bank’s global operations, and led the bank’s employee Affinity Group strategy. He also articled and practiced labour & employment law at Hicks Morley LLP in Toronto upon being called to the Ontario bar in 2000.
Milé holds an Honours Bachelor of Arts from Carleton University and completed law school at the University of Ottawa. He currently serves as the Chair of the Equity Advisory Group at the Law Society of Upper Canada and as the Chair of the Sexual Orientation and Gender Identity Section of the Ontario Bar Association. He is also a founding board member of Pride at Work Canada.
Audrey DeMarsico - Newsletter Editor
Audrey DeMarsico is an associate in the Research Department in the Toronto office of Osler, Hoskin & Harcourt LLP. Her practice focuses on legal research as an expert service to resolve complicated legal issues in all practice areas.
Mark L. Berlin - Newest Executive Member
Director General, International Legal Programs, Department of Justice
Mark L. Berlin joined the Department of Justice as an articling student after receiving a B.A. (Toronto); LL.B. (Ottawa); M.Phil (Cambridge). Mark’s various jobs at Justice Canada have included positions as Senior Counsel, Criminal Law Policy Section; Departmental Policy Advisor to the Honourable Anne McLellan, then Minister of Justice and Attorney General of Canada; Special Advisor on the Middle East to the Minister of Justice; Director General, International Legal Programs and Senior General Counsel and Special Advisor to the Deputy Minister.
Currently Mark is Past Chair of the Public Sector Forum of the Canadian Bar Association National; and current Chair of Conference Chairs CBA.
Mark is an Adjunct Professor at the University of Ottawa Faculty of Law.
The Regulation of Sexuality: How far have we come in achieving equality and acceptance?
Audrey DeMarsico*
Have we as a community achieved dignity for LGBT people in Canada? Have we changed our society in such a way that our desire is no longer regulated by institutions? Or have we become complacent as a result of our achievements in obtaining technical equality, when we could be pushing harder for full acceptance?
These are some of the questions panellists grappled with at the Pride Reception hosted by the Sexual Orientation and Gender Identity Section and the Law Society of Upper Canada on June 24, 2008. The topic of discussion was the regulation of sexual identity, behaviour, and expression in contemporary Canadian law.
The panellists were Douglas Elliott, Joanna Radbord, Kathleen Lahey, and Gareth Henry. Douglas Elliott has been involved in many landmark cases including Halpern v. Canada and Hislop v. Canada, and he received a Lifetime Achievement Award at this year’s Pride Gala. Joanna Radbord is a family lawyer who has also worked on landmark cases such as M v. H and Little Sisters v. Canada. Kathleen Lahey is a Professor at Queen’s University Faculty of Law, and has published and consulted on a wide range of legal issues relating to equality and human rights. Gareth Henry was the International Grand Marshall in this year’s Pride Parade, and was Co-Chair of the Jamaica Forum for Lesbians, All-Sexuals and Gays (JFLAG) before becoming a refugee claimant in Canada.
Milé Komlen, Chair of the Sexual Orientation and Gender Identity Section, moderated the discussion. He asked the panellists for their views on the progress we have made in achieving dignity and acceptance for LGBT people.
Douglas Elliott pointed out that it’s one thing to have technical equality, but another to transform our institutions. In the 10 years since the Supreme Court of Canada wrote in Vriend that we are entitled to dignity, we have never had a gay prime minister, a lesbian premiere, or a transgendered judge at the Supreme Court of Canada. Also, the Supreme Court is now hesitant to grant intervener status to LGBT groups. Elliott brought home the dangers of complacency with a chilling statistic. “In 1929, the two best places in the world to be gay were Berlin and Moscow. In 1939, those were the worst places to be gay.”
Kathleen Lahey agreed with Elliott’s overall characterization of our progress, and cautioned that it may be a mistake to focus on the 2003 Halpern decision in considering whether we have achieved substantive equality. Halpern was a tremendous substantive victory, in which the Ontario Court of Appeal found that the definition of marriage as between one man and one woman violated section 15 of the Charterof Rights and Freedoms. But it took all the talent we had in this country to achieve that result.
And many other headings of discrimination remain unresolved. Before the same-sex marriage cases, there were a number of core areas of discrimination in Canadian law, such as the age of consent, different immigration requirements, and a homosexual panic defence in the criminal law. None of those other issues have changed.
Also, since Halpern, it has become more difficult to win a discrimination case on the basis of sexual orientation. The newer cases are missing an awareness of how issues connect to larger systemic discrimination, which was eloquently recognized in Vriend and Halpern.
Overall, Lahey said, “We are more equal than before, but we have a lot of work left to do.”
Joanna Radbord told us that in family law, we haven’t seen the kind of impact since Halpern that we’d expect. For example, when Radbord sought recognition for lesbian parents in Rutherford v. Ontario, the government fought every step of the way. People describe the case as a success because the Court did hold that the Children’s Law Reform Act was unconstitutional in requiring married lesbian couples to get an adoption order for both mothers to be recognized on the birth registration. The government’s response, however, was less than ideal. The government used a regulation to the effect that only lesbians who use unknown donor sperm can have immediate parental recognition. Thus, if there is a known donor, or even an unknown donor with intercourse, lesbians still have to get an adoption order.
“What’s really required,” said Radbord, “is a wholesale revision of the Children’s Law Reform Act to recognize the diversity of families beyond man-woman biological parents.”
In A.A. v. B.B. v. C.C., Radbord pursued on consent an order recognizing a woman as a child’s third parent. The Court accepted that three people could be recognized as parents – but without a statutory framework for this, it’s left to the discretion of each individual judge.
Overall, in the day-to-day practice of family law, Radbord routinely sees a lack of respect and recognition for lesbian family autonomy.
Next, Milé turned to Gareth Henry. “We’ve got it good here in Canada. You’ve faced violence in Jamaica and difficulty getting to Canada.”
Henry agreed that this conversation was extremely advanced compared to discussions about gay rights in Jamaica. There, activists struggle to get the government to listen to talk of basic human rights for gays and lesbians.
When the Jamaican government speaks of gays and lesbians, it is only to further exclude them and to reinforce homophobia, with statements such as, “There is no room in this cabinet for gays and lesbians.” Employers can freely say, “Because you are gay, you are unqualified.”
When gay men go before the courts, they are self-represented because few lawyers will take their cases for fear of being labelled as homosexual. When you are a victim of homophobic violence in Jamaica, you have no support, so you let it go.
JFLAG has made attempts to engage parliament in law reform. There have been conversations about a charter of rights that would give a right to privacy against police intrusion. This has been on the table for 10 years, but has not been passed because the church says this Charter would enable gay men to have sex in the privacy of their homes.
No one has ever been arrested for murdering a gay man, even in plain view of witnesses. Henry has personally witnessed a hate crime in which police handed the victim to an angry mob, which beat him and chased him down the streets. The next morning, the newspaper headline was, “Alleged Homosexual Beaten and Chopped to Death by Angry Mob.” Henry called the police three times to say the crime was incited by police officers and offered to identify them. Three times the police hung up on him.
Henry is afraid of the state and of the police because the police have physically assaulted him. When he tried to report the matter, he received more threats from police. With Human Rights Watch, he documented these incidents of intimidation and harassment and submitted reports to police, but they have not responded.
Thus, the systems that are supposed to protect Henry are actually abusing him because of his openness.
Thirteen of Henry’s friends have been killed between 2004 and 2007. He realized he would likely be killed too if he stayed in Jamaica. He wanted to stay in Jamaica to advocate for gay rights, so he tried to work from home in a gated community with 24-hour security. Then one morning on his way to work, two men came up and said they would kill him and burn JFLAG down. So he decided he had to leave.
“The thought that I have to leave because I am deemed to be different, and the state thinks I am not entitled to basic rights that everybody else is entitled to, is hard.” But his safety was at stake, and his family agreed that he should leave so they would know he is alive in a different place rather than being killed because he dared to be gay and to be out.
Henry left for Canada in January. He found that, “While there are freedoms here in Canada, there is a lot of work still to be done.”
Three times Henry has experienced homophobia in Canada, and was surprised. For example, three Jamaicans approached him in a pharmacy and told him homosexuality is wrong. But he wasn’t that fearful because he knew the state here sees itself as responsible to protect its citizens. It’s different here because there is a process for recourse or redress.
“But laws don’t necessarily change behaviours and attitudes. They need our hands, our voices, our actions, to make them meaningful.”
Henry urged that it is important for gays and lesbians to come together as a community to form a global movement and protect people in other places.
“Let us not be complacent,” he concluded. “Don’t let the next generation take these rights away.”
At this point, a surprise guest appeared. Michael Battista is the immigration lawyer who is working on Gareth Henry’s refugee claim. He described the challenges that LGBT refugee claimants generally are facing in our system.
“One danger in immigration and refugee law is when we take Western standards and apply them to people in other countries. A big issue faced by LGBT refugees is to provide evidence that they are lesbian or gay. ‘Where is your evidence of participation in LGBT organizations? Where are your testimonial letters from friends and former partners attesting to the fact that you were in a same-sex relationship?’ That is a very Western perspective. In other countries, it is not safe to be openly gay.”
Finally, Milé asked the panellists how we can inspire society to keep advancing human rights. Kathleen Lahey answered, “The solution does not lie in the law. It lies in the power of voices of individuals and people in public office understanding that they are accountable.”
In summary, the panellists were of the view that we have made great progress in obtaining rights for the LGBT community in Canada, but there is much more we can still achieve going forward. Let’s keep up the good work!
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Several jurisdictions around the world have enacted legislation to proclaim Holocaust Memorial Day, and the international LGBT community has long recognized the importance of preserving the memory of the Holocaust as a horrific chapter in human history. The legislative enactments are based on the understanding that there are important lessons to be learned from the Holocaust (as well as other more recent genocides) in fostering a society that acknowledges and respects differences and our shared humanity.
Milé Komlen, B.A., LL.B. - Chair
Audrey DeMarsico - Newsletter Editor
Mark L. Berlin - Newest Executive Member
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