1977 The G.A.T.E. Case

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In 1969, the Social Credit government of British Columbia consolidated the province’s weak anti-discrimination laws into a single Human Rights Act and created a Human Rights Commission to administer it. However, critics argued that the commission was underfunded and did nothing to promote human rights in the province (few employers, for example, were even aware of its existence). A British Columbia Federation of Labour report went so far as to suggest that the passage of the act was no more than an election tactic and that the government had little or no interest in promoting human rights. The BC Civil Liberties Association believed that the legislation would do “little to foster or safeguard basic civil rights of British Columbia … The bill is hardly more than a consolidation and updating of existing fair employment and accommodation statutes, and appears weak even within this narrow scope.” [Clément 2014]

The New Democratic Party government passed a much more expansive Human Rights Code in 1973 and established a separate Human Rights Branch to process complaints. The government also revitalized the Human Rights Commission and gave it the mandate of promoting and educating the public about human rights. The new code differed from other human rights laws in Canada because it banned all forms of discrimination unless the accused could demonstrate “reasonable cause.” The other laws prohibited discrimination on the basis of certain grounds, such as race. The code would open the door to precedents in areas such as sexual harassment, pregnancy, and sexual orientation.

The code and the new branch constituted a dramatic improvement for human rights in British Columbia. In 1975, the branch received seven hundred complaints, operated with a staff of seventeen, and for the first time had lay people from various professions sitting on the Human Rights Commission. Its first official report noted that some of the “decisions rendered in 1975 have dealt with the refusal by a beer parlour to serve members of the counter culture, the refusal by a hotel to provide a Native Indian woman with a room, the refusal by a newspaper to provide advertising space to a homosexual group, and discrimination against a woman in a mining camp over adequate accommodation.” [Clément 2014] Offices were opened in Terrace, Kamloops, Prince George, Vancouver, Victoria, and Nelson. Within a few years, the government could boast a highly active human rights program. In 1978, the Human Rights Branch dealt with 704 complaints and closed 379 cases in areas such as employment discrimination, services, and tenancy.

The GATE case (GATE v. Vancouver Sun) was one of the most controversial decisions handed down by a BC board of inquiry (appointed under the Human Rights Code. Formed in Vancouver during the early 1970s, GATE (Gay Alliance Toward Equality) was one of the earliest gay rights groups in the country. Although it was small, with perhaps only seven dedicated members at any given time, it had its own publication, Gay Tide. According to Tom Warner, in Never Going Back,

“GATE became one of Canada’s leading gay rights groups, staking out a position that influenced the movement nationally, which included abolition of the age of consent laws, self-determination for Quebec, choice on abortion, opposition to the Vietnam war and rejection of gay liaison with the police. It used pickets and other public actions and published a newspaper, Gay Tide, from 1973 to 1976, to get out its message. During the 1972 provincial election in British Columbia, Vancouver GATE sent a questionnaire to all candidates on changes to a range of provincial legislation. Some support for amending the Human Rights Act was expressed by New Democratic Party candidates, but the right wing Social Credit party, then in power, was blatantly homophobic. One of that party’s candidates, in response to a question at an all candidates meeting, stated crudely, ‘One day society will castrate the whole works of you [gays] to keep you from reproducing your own kind.’ Following the surprise election of the NDP, a more effective Human Rights Act was introduced, in which GATE lobbied vigorously for the inclusion of sexual orientation, without success. The labour minister stated omitting that term would avoid giving homosexuality ‘legal sanction.’ Instead, he argued that the reasonable cause provision, a unique feature of the act, would ensure that ‘gays ought not to be discriminated against in any way.’ Under that provision, discrimination against any person or class of persons without reasonable cause would be prohibited. GATE took up the challenge by filing a human rights complaint in the fall of 1974, citing the reasonable cause provision after the Vancouver Sun refused a classified advertisement promoting GATE’s newspaper, Gay Tide. The Sun claimed the ad was unacceptable because it might offend some of their readers.”

The ad that GATE had submitted to the Vancouver Sun, and which the Sun had refused to print on the grounds that readers would be offended, read as follows: “Subscription to Gay Tide, gay lib paper. $1.00 for 6 issues. 2146 Yew St., Vancouver.” GATE appealed to the BC Human Rights Branch, which set up a board of inquiry that sided with GATE. The board concluded that the Sun had violated section 3(1) of the Human Rights Code, which reads,

“3(1) No person shall
(a) deny to any person or class of persons any accommodation, service, or facility customarily available to the public; or
(b) discriminate against any person or class of persons with respect to any accommodation, service, or facility customarily available to the public unless reasonable cause exists for such denial or discrimination.”

The Sun quickly challenged the ruling in the BC Supreme Court. The presiding judge concluded that the issue of reasonable cause was a question of fact for the Human Rights Commission and could not be interfered with by a court. The BC Court of Appeal did not agree. In a two-to-one decision, Justices Branca and Robertson focused on the issue of reasonable cause in overturning the Supreme Court decision. They reasserted the court’s power to review any decision imposed by a board of inquiry and chastised the board for substituting a subjective analysis of the editor’s motives for a finding of fact. According to the justices, rather than examining the possible bias of the editor, the inquiry should have concentrated on the potential effect that a gay advertisement would have had on the paper’s reputation. Branca went so far as to justify discrimination against homosexuals as a pervasive bias in the community and therefore a legitimate consideration for the Sun in determining its policies. As he put it,

“Many people in our society may well entertain a bias or some predisposition against homosexuals or homosexuality on moral and/or religious grounds. It cannot therefore be justly said that a bias so held has no reasonable foundation … If one bases a bias against homosexuals because they are persons who engage in unnatural sexual activity which may make them guilty of a serious crime in certain circumstances and because they are forbidden entry into Canada as undesirables, can one say that such a bias, if it is arrived at for those reasons, is unreasonable? I would not think so” (GATE v. Vancouver Sun, [1977] 77 D.L.R. 487).

The decision was designed to limit the scope of the code to matters defined within the parameters of the legislation and to warn future boards of inquiry against adding new grounds for discrimination. Justice Seaton dissented from the decision because he felt that the code required evidence from the accused to justify differential treatment of homosexuals.

The GATE case was eventually heard by a full panel of the Supreme Court of Canada. It was the first gay rights case to reach that court. In a six-to-three decision, the majority of justices supported the Vancouver Sun, basing their decision largely on the freedom of the press provisions in the Canadian Bill of Rights, although there was some debate over the validity of the “reasonable cause” limit in the Human Rights Code Speaking for the majority, Justice Ronald Martland concluded that newspapers had a right to express whatever opinions they saw fit and that this right extended to refusing to publish an advertisement. Undeterred, GATE continued to pressure the Sun until the paper finally relented and published its ad in 1980.


Further Reading

Clément, Dominique. Equality Deferred: Sex Discrimination and British Columbia’s Human Rights State, 1953-1984 Vancouver: UBC Press and the Osgoode Society for Canadian Legal History, 2014.

Smith, Miriam. Lesbian and Gay Rights in Canada: Social Movements and Equality-Seeking, 1971-1995. Toronto: University of Toronto Press, 1999.

Warner, Tom. Never Going Back: A History of Queer Activism in Canada. Toronto: University of Toronto Press, 2002.