
Claude Chamberland, lawyer
Image: AI ©Gay Globe
Throughout the chronicles, many of you have presented legal questions that concern you to varying degrees. Allow me to take advantage of this relatively calm summer break to catch up and answer some of them in rapid succession…
Q: Are storytime sessions by drag queens in schools and libraries protected by the Charter of Rights?
A: Of course they are, both under the Quebec Charter and the Canadian Charter. The right to recognition and exercise of human rights and freedoms on an equal basis forms the legal foundation for protection against discrimination, which should be safeguarded from the political whims and fluctuations of the moment. The limit of this right must be reasonable, and its justification must be demonstrable within the framework of a free and democratic society.
Q: Since the Supreme Court ruling in the case between Mike Ward and Jeremy Gabriel, I feel that the powers of the Human Rights Tribunal have been reduced. Is that the case?
A: Oh dear! The analysis of the impact of the Ward ruling has just begun. There will certainly be as many analyses of it in the coming months and years as there are pages in the Supreme Court judgment (147 pages). If you’re interested in these issues, I encourage you to visit the excellent website of the Human Rights Tribunal and consult the joint case law list at:
Tribunaldesdroitsdelapersonne.ca
In general, my advice regarding any questions about rights and freedoms, including allegations of discrimination, is to contact the Commission des droits de la personne et des droits de la jeunesse to file a formal complaint. It’s free, and the expertise of the CDPDJ members provides additional assurance for safeguarding your rights. The short answer to this question is that the mission of the Human Rights Tribunal has been somewhat “refocused” by the Ward ruling. Regarding speech protected by freedom of expression, the criterion as clarified in Ward is as follows: The statement must be, in the eyes of a reasonable person aware of the circumstances and relevant context, likely to incite contempt or hatred towards the humanity of a complainant in relation to one of the elements protected by the Quebec Charter (race, gender, age, social condition, sexual orientation, etc.).
Q: What should be done if a lawyer refuses to represent an LGBTQ person?
A: A lawyer can never be forced to accept a mandate they do not wish to take on. The lawyer can simply refuse without providing a particular reason to the person requesting their professional services. However, if the refusal is solely based on a person’s membership in the LGBTQ community and this can be proven, there may be grounds for filing a complaint with the Bar Association against the lawyer for a breach of ethical obligation.
The preamble of the Code of Ethics of Lawyers, derived from the Law on the Bar and the Professional Code, expressly mentions that a lawyer is in the service of justice, that the practice of the profession is based on values of respect for the rule of law, accessibility to justice, respect for individuals, and protection of fundamental rights, including the right not to suffer discrimination and harassment.
Such a situation would therefore clearly violate the Code of Ethics and would likely call for a sanction.