The GATE Case

The G.A.T.E. Case

In 1969 the government of British Columbia consolidated existing weak anti-discrimination laws into a single Human Rights Act and created a commission to administer the code. However, critics of the government argued that the commission was under-funded and did nothing to promote human rights within 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 Code was simply an election tactic, and that the government had little or no interest in promoting human rights. The B.C. Civil Liberties Association believed 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 appear weak even within this narrow scope.”

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. While the Branch dealt with complaints, a revitalized Human Rights Commission was given a mandate to promote and educate the public about human rights. The legislation set a new standard in Canadian human rights law with a new section prohibiting discrimination on the basis of “reasonable cause." Other human rights laws banned discrimination on the basis of certain grounds, such as race. However, the 1974 British Columbia Human Rights Code banned all forms of discrimination unless the action could be justified on the basis of reasonable grounds. This new legislation would open the door to precedents in areas such as sexual harassment, pregnancy, and sexual orientation.

The new code and human rights branch/commission were a dramatic improvement. In 1975, the branch received 700 complaints, operated with a staff of seventeen, and for the first time had lay people from various professions sitting on commissions. 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.” Local 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, they dealt with 704 complaints (184 carried over from 1977) and closed 379 cases in areas such as employment discrimination, services and tenancy.

One of the most controversial decisions handed down by a British Columbia board of inquiry (appointed under the Human Rights Code) in the 1970s was the GATE case ( GATE v. Vancouver Sun). G.A.T.E., Gay Alliance Towards Equality, was one of the earliest gay rights groups in the country (it was formed in Vancouver in the early 1970s). GATE was a small group, perhaps seven dedicated members at any given time, with its own publication, Gay Tide. "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 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." [Warner, Never Going Back].

The advertisement GATE had submitted to the Vancouver Sun, and which was refused on the grounds that it would offend readers, read as follows: “Subscription to Gay Tide, gay lib paper. $1.00 for 6 issues. 2146 Yew St., Vancouver." GATE appealed to the B.C. Human Rights branch, which lead to a board of inquiry that sided with GATE. The board of inquiry concluded that the newspaper violated section 3 (1) of the B.C. Human Rights Code:

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 newspaper quickly challenged the ruling in the B.C. Supreme Court. The presiding judge concluded that the issue of reasonable cause was a question of fact for the commission and could not be interfered with by a court. The B.C. Court of Appeals did not agree. In a 2-1 decision, Justices Branca and Robertson focused on the issue of reasonable cause in overturning the lower court decision. They reasserted the court's power to review any decision imposed by a board of inquiry, and further chastised the board of inquiry for substituting a subjective analysis of the editor’s motives for a finding of fact. According to the justices, the inquiry should have focused on the potential effect a gay advertisement would have had on the reputation of the paper instead of the editor’s possible bias. Branca went so far as to justify discrimination against homosexuals as a pervasive bias in the community and therefore a legitimate consideration for the newspaper in determining its policies. According to Branca, “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 Dominion Law Reports (BCCA) 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 the Code required evidence from the accused to justify differential treatment against 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 the Supreme Court in Canadian history. In a 6-3 decision the majority of justices supported the Vancouver Sun. The decision was largely based on the freedom of the press provisions in the Canadian Bill of Rights, although there was some debate over the validity of the ‘reasonable limits’ clause 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 this protection extended to refusing to publish an advertisement. Continued pressure by GATE eventually led the newspaper to voluntarily publish the advertisement in 1980.