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Canada – SOGI Legislation Country Report (2013)


Jurisdiction in Canada is divided between Federal and Provincial levels of government. The examples of Ontario legislation provided are illustrative, and not necessarily representative of Provincial legislation across the country.


Section 15 of the Canadian Charter of Rights and Freedoms lists a number of prohibited grounds of discrimination (section 15(1): “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”). While section 15 does not explicitly include sexual orientation, the Supreme Court of Canada has held that sexual orientation is an “analogous ground” akin to the enumerated ones (Egan v Canada [1995] 2 SCR 513).

“Sexual orientation” is explicitly listed as a prohibited ground of discrimination under federal human rights legislation (Canadian Human Rights Act).

Speech that wilfully promotes hatred based on sexual orientation is criminalized (Criminal Code).

Proof that an offence was motivated by bias based on sexual orientation is an aggravating factor at sentencing (Criminal Code).

Consensual same-sex sexual activity was decriminalized in 1969 with the passing of Bill C-150, the Criminal Law Amendment Act.

The age of consent for anal sex is higher than for other kinds of sexual activity (regardless of the sex of the participants; section 159 of the Criminal Code). However, this law has been declared unconstitutional in the province of Ontario on the grounds that it violates the Constitution, namely, the Charter of Rights and Freedoms (R v CM [1995] OJ No 1432).

In M v H ([1999] 2 SCR 3), the Supreme Court of Canada ruled that the exclusion of same-sex partners from the definition of common-law spouse under section 29 of the Ontario Family Law Act (which defines spouses entitled to spousal support obligations) violates the equality provision (section 15(1)) of the Charter of Rights and Freedoms.

The Modernization of Benefits and Obligations Act recognizes same-sex common law partners, and extends them the same rights and obligations as unmarried opposite-sex couples for federal income tax, pension, et cetera.

The Civil Marriage Act grants legal recognition to same-sex marriages throughout the country, in all provinces.

Canadian citizens and permanent residents can sponsor same-sex partners for immigration to Canada under the federal Immigation and Refugee Protection Act and the Immigration and Refugee Protection Regulations.

Same-sex couples have equal access to assisted human reproductive technologies under the federal Assisted Human Reproduction Act.

Provincial (Ontario)

“Gender identity” and “sexual orientation” are listed as protected grounds under provincial human rights legislation (Ontario Human Rights Code).

Same-sex couples can jointly adopt children in the province of Ontario (Child and Family Services Act).

Laws recognizing change of gender vary among provinces. In Ontario, the Human Rights Tribunal found the provision of the Vital Statistics Act (1990) requiring “transsexual surgery” for official sex change violates the Ontario Human Rights Code (XY v Ontario [2012] OHRTD No 715). As of October 2012, individuals in Ontario can apply to change the sex on their birth certificates without sex reassignment surgery. A letter from a physician or psychologist is required.

link to full text in PDF: Canada-SOGI Legislation Country Report-2013