Hudler v. London (City)

1997-10-07

Ontario Board of Inquiry

Richard Hudler Complainant

and

Ontario Human Rights Commissions Commission

v.

Corporation of the City of London and Dianne Haskett Respondents

Date of Complaint: October 11, 1995

Date of Decision: October 7, 1997

Before: Ontario Board of Inquiry, Mary Anne McKellar

Decision No.: 97-023

Appearances by: Kikee Malik and Raj Dhir (Student-at-Law), Counsel for the Commission Leslie Reaume, Counsel for the Complainant James Barber and Cristin Kellee (Student-at-Law), Counsel for the Respondent City of London Scott Ritchie and Kathryn McKerlie, Counsel for the Respondent Dianne Haskett

SEXUAL ORIENTATION — PUBLIC SERVICES AND FACILITIES — civic proclamation denied — definition of public services and facilities — INTERPRETATION OF STATUTES — definition of “service”? — plain meaning rule — CANADIAN CHARTER OF RIGHTS AND FREEDOMS — s. 2(b) (freedom of expression) — application of s. 1 (reasonable limits) — FREEDOM OF EXPRESSION — freedom of speech includes the right not to speak — COMMUNICATIONS — civic proclamation — DAMAGES — damages assessed for wilful or reckless discrimination — compensation for injury to dignity and self-respect

Summary: The Board of Inquiry rules that Mayor Dianne Haskett and the Council of the City of London discriminated on the basis of sexual orientation when the Mayor refused to proclaim “Pride Weekend”? as requested by the Homophile Association of London Ontario (HALO).

The Board of Inquiry finds that Mayor Haskett has issued 252 proclamations during her term of office. She refused only one request for a proclamation, that submitted by HALO in 1995 and in two subsequent years. The Board of Inquiry concludes that Mayor Haskett's refusal was due to the fact that HALO is an organization principally serving gay men and lesbians in London. Mayor Haskett did not wish to endorse gay and lesbian identities or lifestyles.

The Board of Inquiry finds further that when the Mayor refused to issue the proclamation, the City Council took no steps to rectify the situation.

The Board of Inquiry considers whether the issuance of proclamations is a service within the meaning of the Ontario Human Rights Code. It rejects the City's argument that the Code cannot apply because there is no statutory authority for issuing proclamations and the Mayor and Council can neither be compelled nor prohibited from making a proclamation. The Board of Inquiry finds that the fact that issuing a proclamation is a discretionary act of the Mayor does not place it outside the ambit of the Code. The fact is that proclamations are issued. The Board of Inquiry decides that issuing proclamations is one of the services provided by the Mayor and Council to the citizens of London, and that service cannot be provided on a discriminatory basis.

The Board of Inquiry also rejects the argument that since issuing a proclamation is a form of speech, its refusal to issue a proclamation for HALO (also a form of speech) is protected by s. 2(b) of the Charter, and the Code must be “read down”? to comply with it. The City argues that it cannot be compelled by the Code to issue a proclamation that it does not agree with.

If this argument were followed to its logical conclusion, the Board of Inquiry concludes, it would gut the Code, which attaches legal consequences to a number of forms of speech, including sexually harassing speech. The Charter does not guarantee absolute freedom of speech, and it does not preclude attaching legal consequences to some discriminatory forms of speech.

The Board of Inquiry rules that the Mayor and Council of the City of London discriminated on the basis of sexual orientation by refusing to issue a proclamation of “Pride Weekend”? as requested by HALO.

The Board orders the Mayor and Council to issue a proclamation as requested by HALO, to pay Richard Hudler $10,000 as compensation for the injury to dignity he suffered; and to engage in discussions with HALO regarding ways to improve relations between gay men and lesbians and the Mayor and Council of the City of London.

CASES CITED

Canada (Secretary of State) v. Menghani (1992), 1992 CanLII 313 (CHRT), 17 C.H.R.R. D/236 (Can.Trib.): 56

Chiang v. Natural Sciences and Engineering Research Council of Canada (1992), 1992 CanLII 357 (CHRT), 17 C.H.R.R. D/63 (Can.Trib.): 56

Egan v. Canada, 1995 CanLII 109 (SCC), [1995] 2 S.C.R. 513, 125 D.L.R. (4th) 609: 72

Haig v. Canada (Chief Electoral Officer), 1993 CanLII 58 (SCC), [1993] 2 S.C.R. 995: 60

Haig v. Durrell (July 15, 1990), (Ont. Ct.) [unreported]: 62

Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 115 S.Ct. 2338 (1995): 86

Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, 58 D.L.R. (4th) 577: 67

Little Sisters Book and Art Emporium v. Canada (Minister of Justice) (1996), 1996 CanLII 3465 (BC SC), 131 D.L.R. (4th) 486 (B.C.S.C.): 72

National Bank of Canada v. Retail Clerks' International Union, 1984 CanLII 2 (SCC), [1984] 1 S.C.R. 269, 9 D.L.R. (4th) 10: 84

Oliver v. Hamilton (City) (No. 2) (1995), 1995 CanLII 18157 (ON HRT), 24 C.H.R.R. D/298 (Ont. Bd.Inq.): 4, 63

RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, 27 D.L.R. (4th) 1: 67, 86

Reference re Proclamation of Section 16 of the Criminal Law Amendment Act, 1968–69, 1970 CanLII 129 (SCC), [1970] S.C.R. 777: 61

R. v. Edwards Books & Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713, 35 D.L.R. (4th) 1: 73

Saskatchewan (Human Rights Comm.) v. Saskatchewan (Dept. of Social Services) (1988), 1988 CanLII 212 (SK CA), 9 C.H.R.R. D/5181 (Sask. C.A.): 56

Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, 59 D.L.R. (4th) 416: 84

Turner Broadcasting System Inc. v. Federal Communications Comm., 114 S.Ct. 2445 (1994): 86

LEGISLATION CITED

Canada

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11

s. 1: 71, 83

s. 2: 70

s. 2(b): 64, 66, 72, 83

s. 15(1): 72

Ontario

Courts of Justice Act, R.S.O. 1990, c. C.43: 81

Fair Accommodation Practices Act, R.S.O. 1960, c. 131: 55

French Language Services Act, R.S.O. 1990, c. F.32: 56, 64

Human Rights Code, R.S.O. 1990, c. H.19

s. 1: 46, 55

s. 7(2): 70

s. 7(3): 70

s. 9: 46

s. 10: 53

s. 13: 70

s. 20: 53

s. 22: 53

s. 35(6): 1

s. 36(1): 1

s. 41: 76

s. 41(1): 84

s. 41(1)(b): 80

s. 41(4): 79

Municipal Act, R.S.O. 1990, c. M.45: 59

United Nations

Universal Declaration of Human Rights, G.A. Res. 217(III), UN GAOR, 3d Sess., UN Doc. A/810 (1948): 24

AUTHORITIES CITED

Jowitt, William Allen, The Dictionary of English Law (London: Sweet & Maxwell, 1959): 61

INTRODUCTION

1I was assigned by the Chair of the Board of Inquiry (the “BOI”?) pursuant to s. 35(6) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”?), to hear and decide a complaint referred by the Ontario Human Rights Commission (the “Commission”?) under s. 36(1). The complainant, Richard Hudler, alleges that the Mayor of the City of London, Dianne Haskett (the “Mayor”?), and/or the Corporation of the City of London (the “City”?) contravened the Code by discriminating with respect to the provision of services on the basis of sexual orientation. In particular, the complainant alleges that the Mayor and the City contravened the Code when each refused in 1995 to publicly recognize the contributions of the Homophile Association of London Ontario (“HALO”?), a non-profit corporation of which the complainant was then President.

2Notice of Constitutional Question was served on the Attorneys-General for Ontario and Canada. Both declined to participate in these proceedings.

DECISION

3I find that both the Mayor and the City have contravened the Code by discriminating on the basis of sexual orientation with respect to the provision of services. My remedial orders are contained in paras. 76–87.

FACTS

A. The Witness

4The Commission and the complainant called the following witnesses who testified with respect to their personal involvement in the events giving rise to the complaint: Richard Hudler, Debbie Lee, Suzanne Couture, Ken Sadler, Councillor Joe Swan, Patrick Shanahan, and Clarence Crossman. In addition, the Commission and the complainant called Dr. Mariana Valverde as a witness. Dr. Valverde was qualified as an expert witness in the area of sexual orientation and sexual identity. She received her Ph.D. in Social and Political Thought from York University and has held a tenured position as Associate Professor, Centre of Criminology, University of Toronto, since 1992. Dr. Valverde has lectured and published widely in the areas of gender studies, sexuality and moral regulation. In addition, she has offered expert evidence in several board of inquiry cases involving allegations of discrimination on the basis of sexual orientation, including Oliver v. Hamilton (City) (No. 2)(1995), 1995 CanLII 18157 (ON HRT), 24 C.H.R.R. D/298 (Ont. Bd.Inq.).

5The City called no evidence. Witnesses called by the Mayor were two: Mayor Haskett and George Rust D'Eye. The latter was qualified as an expert to offer opinion evidence on the range of ways in which municipalities and civic officials act, and their authority for doing so, including which of those actions are conceived of in the municipal context as “services”?. Rust D'Eye is the former solicitor for the Municipality of Metropolitan Toronto. His professional practice and affiliations familiarized him with the workings of city hall and municipal officials. He also gave expert testimony in Oliver.

6My account of the facts is based on the testimony of the above witnesses and the exhibits filed. The recitation of them is necessarily lengthy even though there was very little dispute about what actually occurred in London in 1995. The disputed areas of evidence pertain to the inferences I was urged to draw and conclusions urged to reach with respect to why events unfolded as they did and how they affected the community.

B. What Is HALO?

7HALO is a non-profit corporation that originated as a campus group at the University of Western Ontario in 1970. It has operated at the same premises in London, Ontario, since 1974. It functions as a community organization or club, offering to its members social services, such as a disco and coffee house, and support services, such as peer counselling and referrals to other affiliated agencies. Membership in the club is available to anyone sixteen years of age or older who pays the membership fee and who subscribes to the objects of the club. Those objects are:

(a) to provide services and facilities to meet the social, cultural, psychological and spiritual needs of the members of the homophile community;

(b) to act as a referral source to the members of the homophile community with medical, legal, psychological, and spiritual problems;

(c) to provide a program to assist in the integration through education of individuals of different sexual orientations.

8HALO's membership comprises approximately 250 gay men, lesbians, bisexuals, trans-gendered persons and some heterosexuals. A review of the May 1995 version of the HALO pamphlet reveals that its focus is not on providing services to heterosexuals in London, who may already be adequately served by other community organizations, but on providing services and support to the gay and lesbian community. For example, HALO operates a telephone counselling service called “The London Gayline”?. It is affiliated with the Coalition for Lesbian and Gay Rights in Ontario (“CLGRO”?) and the International Lesbian and Gay Association. Among the resources listed in the pamphlet are many groups that contain the word “gay”? or “lesbian”? in their names, such as the London Lesbian Film Festival. In addition, the description offered for other groups indicates that they are primarily comprised of or designed for gay men and lesbians. For example, the group “Dignity”? is described as “Lesbian & Gay Catholics”?. Many of these groups had as their genesis HALO initiatives, and some still use the club's facilities for their meetings. They include religious groups, community health care agencies, groups offering cultural or recreational activities, and support groups of various kinds.

9Heterosexuals are not precluded from joining HALO or from availing themselves of any of the services it provides or lists as resources in its pamphlet. In fact, there is one service that HALO appears to provide primarily to those who have not already [been] identified as gay or lesbian. I am referring to the community services committee, the purpose of which is described as “providing educational services to the public”?, through a speakers' bureau that addresses various groups on request. HALO speakers have addressed high school groups, police officers, health units, and groups involved in providing family and children's services. These speaking engagements are designed to inform the listeners about what it means to be gay or lesbian and who makes up the gay and lesbian community, with the aim of combatting prejudice based on misconceptions about that community. In addition, PFFLAG, Parents Friends & Families of Lesbians & Gays, is a group for the heterosexual friends and family members of gays and lesbians.

10Some of HALO's activities could be described as “political action”?. The membership pamphlet states:

Political action efforts are primarily in the direction of seeking changes in legislation which is discriminatory against gay and lesbian people. This is generally done through letter writing campaigns and preparation of briefs. Specific instances of discrimination are also reviewed for the purpose of lending support where appropriate.

The complainant testified that HALO's principal involvement in political action centred around its affiliation with CLGRO and was connected with the latter group's lobbying efforts around Bill 7, which included sexual orientation as a prohibited ground of discrimination under the Code.

C. ”?Pride”? Celebrations in London

11The modern gay rights movement was born in 1969 when a group of patrons of the Stonewall, a New York gay bar, for the first time resisted police efforts to arrest them and identify them publicly in the newspaper. Since that time, gay and lesbian organizations around world have commemorated the Stonewall uprising, and those who had the strength to publicly self-identify as gay and lesbian, through “Pride”? celebrations.

12Dr. Valverde testified with respect to the significance of “Pride”? to gays and lesbians. From her evidence, I conclude that gays and lesbians have historically been subject to discrimination and that their own invisibility as a minority contributed to the persistence of such discrimination. Sexual identity is distinguishable from sexual activity: one can be gay or lesbian and not engage in sexual activity. While the sexual identity of heterosexuals is societally validated on a daily basis, the same is not true for gays and lesbians, and yet

[p]ublic recognition and validation of one's identity and community (including sexual, ethnic and religious identity) is important to everyone psychologically and sociologically. Gay people do obtain some validation for their identity within the gay community itself, but no gay person lives wholly within the gay community ... Every group that has any distinct identity needs and want[s] public recognition for that identity.

13Dr. Valverde further testified that any policy that denied proclamations on the basis of “sexual identity”? would have a different impact on gays and lesbians. Heterosexuals already have a public sexual identity and do not need celebrations such as “Pride”? in order to assert it.

14A visible gay and lesbian community must exist if people are to publicly identify themselves as gay or lesbian and so combat discrimination. “Pride”? celebrations and other public acknowledgments of sexual identity further this process. Public validation is not only important for individual gays and lesbians, but also for the community as a whole. Invisibility allows hatred, contempt, prejudice and ignorance to flourish, and these are not the characteristics of a healthy community.

15Other witnesses also addressed the meaning and importance of “Pride”? on a personal level. The complainant testified that “Pride”? celebrations tell an individual gay or lesbian that others share the same sexual identity and that that sexual identity is no cause for shame — that the individual is equal, and not inferior, to other citizens. Debbie Lee said simply that “Pride”? is a “celebration of our lives”?. For Suzanne Couture, “Pride”? provides an opportunity for gays and lesbians to show their face in the broader community, as well as to get the whole gay and lesbian community, which is itself diverse, together for a party.

16“Pride”? celebrations in London began in 1981 when the Metropolitan Community Church (“MCC”?) hosted the first of its annual picnics for gays and lesbians and their families in a local park. HALO's first involvement in “Pride”? in London came in 1992 when it hosted an open house at its premises. The motivation for this event was the realization that the broader London community knew very little about HALO's members or the club's activities. A similar event was also held in 1993. For 1994, which was the club's twentieth anniversary, HALO decided to become more public about “Pride”? by erecting a sign on the premises identifying them as belong to HALO and by hosting some events in the club's parking lot. In each of these years, the MCC held a special “Pride”? religious service on the Sunday.

D. London “Pride”? 1995

17The 1994 events celebrating “Pride”? and HALO's anniversary were so successful that the club decided to combine the two celebrations each year. The Pride Anniversary Committee was formed in September 1994. It decided to seek civic acknowledgment of the contributions the club had made to the community over its twenty-one years of operation. Suzanne Couture was a Chair of this committee. She first conceived the idea of obtaining a civic proclamation when she saw one honouring the Windsor gay and lesbian community on display in a bar. The complainant, Couture, Clarence Crossman and Patrick Shanahan all testified that the proclamation was sought because it would help to publicize the club and draw attention to the anniversary and “Pride”? celebrations it had planned.

18Couture attended at the Mayor's office in February 1995, and spoke to a woman there about how to obtain a proclamation. Based on that conversation, she formed the conclusion that proclamation requests were uniformly granted.

19On March 6, 1995, the BOI released Oliver, in which the mayor of the City of Hamilton was found to have contravened the Code by discriminating in the provision of services on the prohibited ground of sexual orientation when he refused to proclaim Gay Pride Week in 1991. This decision was the subject of an article that appeared in the London Free Press on March 11, 1995, and attributed various comments to HALO members and to the City Clerk and to London's Deputy Mayor.

20Couture and another member of the Pride Anniversary Committee, Brian Hinschberger, prepared a draft proclamation and covering letter over Hinschberger's signature, and she delivered it to the Mayor's office. This letter is dated April 7, 1995. An entire course of correspondence between HALO and the Mayor ensued. Some salient features of this correspondence are noted below:

”¢ Hinschberger's April 7, 1995, letter, written on HALO stationery, requested the proclamation of “Pride Weekend”?. Only in the recitals was HALO's role as a social service support agency for gays, lesbians and bisexuals mentioned. The Mayor's April 19, 1995, response, refusing to make the proclamation, was captioned “Re Gay Pride”?. This pattern persists throughout the correspondence between HALO members and the Mayor with respect to the proclamation request.

”¢ The Mayor's April 19, 1995, letter stated that “it is the policy of my office to decline requests for Proclamation that relate to sexuality, whether it be heterosexuality, homosexuality or celibacy”?.

”¢ The complainant wrote to the Mayor on behalf of HALO on April 21, 1995. In this letter, captioned “Re: PRIDE Weekend”?, he renewed the request for a proclamation, stressed the inclusiveness of the club and its role in the broader London community, and submitted a revised draft proclamation in which the recital clauses reflected these points. For example, HALO's role as a social service support agency was extended to include the heterosexual family members and friends of gays, lesbians and bisexuals.

”¢ The Mayor's May 3, 1995, response, captioned “Re: Gay Pride Proclamation”? stated simply “[I] must advise that my position has not changed since my earlier letter of April 19, 1995.”?

”¢ The complainant and HALO member Clarence Crossman wrote to the Mayor on May 12, 1995. In this letter, they suggested that if her personal religious beliefs were the source of her objection to making “a proclamation for a group that believes in equal rights and responsibilities for lesbians and gay men”?, then she should consider declaring a conflict of interest and delegating her discretion to make proclamations to the Deputy Mayor or to a vote of City Council.

”¢ In her response of May 15,1995, the Mayor wrote: “My position with regard to your request for a Proclamation has been made clear. If London City Council should choose to deal with this issue differently, and make a Proclamation on its own behalf, it is within its power to do so.”?

21At the same time that it was corresponding with the Mayor and attempting to have her reconsider her decision to deny the proclamation request, HALO was also making other efforts to obtain official civic recognition of Pride Weekend. These efforts involved seeking the assistance of Councillor Joe Swan, who had a demonstrable record of providing support and assistance to the gay and lesbian community. When the complainant explained the situation to Swan, he went to speak to the Mayor in an attempt to come up with a proclamation wording that would be acceptable to her and to HALO. This meeting occurred subsequent to HALO's second request, but prior to the Mayor's response. She informed Swan that she would “never grant this proclamation”?. Swan then approached the City Clerk, Ken Sadler, for advice on how to appeal to an authority that might be capable of overriding the Mayor's decision. Both Swan and Sadler testified that the Board of Control could have recommended that Council: request the Mayor to make a proclamation; revoke its delegation to her; or have made its own statement of recognition and acknowledgment of HALO on behalf of the City of London.

22As a result of Sadler's discussions with Swan, HALO wrote to the Chair and members of the City's Board of Control on May 5, 1995, asking to be placed on the agenda of the next Board of Control meeting and stating “We would like to appeal [the Mayor's] decision because we feel this is a case of discrimination”?. The Mayor had already written to all members of City Council (which would include the controllers) on May 3, 1995, enclosing her previous correspondence with HALO. She also enclosed her policy respecting proclamations based on, inter alia, sexuality, and advised that she had previously refused a request for a “Chastity Week”? proclamation. The “Chastity Week”? correspondence, however, was not enclosed. I deal with the Mayor's policy and with “Chastity Week”? in greater detail below under the heading “Proclamations”?.

23Board of Control met on May 10, 1995, and had before it the correspondence referred to in para. 20. Clarence Crossman attended the meeting on behalf of HALO. Swan also attended, as did the Mayor, who chaired the meeting. The report of the Board of Control indicates that it recommended to Council that HALO be advised that the Board of Control and the Council have no jurisdiction to consider HALO's appeal of the Mayor's decision, and that Council take no action to establish a policy with respect to the issuance of proclamations by it. According to Crossman, during the course of the proceedings, the Mayor stated: “I will not be forced to be a mouthpiece for your cause”?.

24City Council met on May 15, 1995. It will be recalled that the Mayor wrote to HALO on the same date indicating they could seek a proclamation from Council, and that it would be within Council's power to grant it. In any event, Councillor Swan drafted a resolution including recitals from the preamble to the Code and the United Nations [Universal] Declaration of Human Rights and omitting all reference to HALO's service to gays, lesbians and bisexuals. This resolution, which HALO would have accepted as an acceptable civic recognition of its community service, concluded:

THEREFORE BE IT RESOLVED THAT July 14, 15, 16, 1995 be recognized as a celebration of Pride and Accomplishment of the Homophile Association of London in providing 21 years of community service to the residents of London.

25Swan moved that Board of Control's recommendations respecting proclamations be amended by adding the above resolution to them. The motion was debated in Council and the videotape of that debate was introduced as an exhibit in these proceedings. Also available to Council members at the time of the debate was the previous correspondence between HALO and the Mayor. The Mayor left her chair to speak to the debate and indicated that she would not be supporting the motion. The motion was defeated.

26Sadler described the Mayor as being “quite anxious and determined to have Council confirm her decision”?. I agree with this assessment. At one point in the debate, the city solicitor characterized proclamations as a ceremonial exercise of the prerogative attaching to an office, and suggested they could be made by any office-holder. Councillor Davenport thereupon undertook to obtain the Mayor's agreement to advise councillors of any proclamation she would not grant so that each individual councillor could consider whether he or she would be prepared to grant them. The Mayor was visibly reluctant to do so. I conclude that she did not want any proclamation recognizing HALO's twenty-one years of community service to be made by anyone on behalf of the City. This conclusion is confirmed by her remarks to Council on the Swan resolution, “the wording may be somewhat different, but it is still the same thing”?.

E. Proclamations in London

27The Mayor is a self-professed evangelical Christian. She holds strong religious views on a number of issues, including abortion and homosexuality. The manner in which she testified about these matters leaves no doubt as to the sincerity of her belief. She stated that “if I were to turn my back on God, that is the moment that I would lose my authority as Mayor”?.

28Prior to winning the 1994 mayoralty race, the Mayor won election to the City's Board of Control in 1991. In that capacity, she read any proclamations on behalf of her predecessor, His Worship Tom Gosnell. Those proclamations issued in accordance with the June 5, 1989, resolution of City Council in 1989:

9. That, on the recommendation of the City Clerk, with the concurrence of the City Administrator, the following policies be adopted with respect to the flying of flags from the City Hall and the issuance of Proclamations by the Mayor, namely:

FLAG POLICY

(a) in recognition of the ethnic diversity of the citizens of the Municipality, the City of London will fly the flag of any nation, country or ethnic group on the national day or on the anniversary of a special occasion requested by that nation, or ethnic group or its representatives;

(b) by the flying of the flags referred to above, the City of London neither implies nor expresses support for the politics of these nations and/or ethnic groups, but flies the flag in recognition of those of its citizens who have made the request;

(c) flags of non-partisan, non-profit groups, such as the Heart and Stroke Foundation, the United Way and the Easter Seal Campaign, will be flown at City Hall upon the request of these groups, on the understanding that the individual flags will not be flown for a period longer than one week;

(d) conflicts between the date requested by two or more nations, ethnic groups or non-partisan, non-profit groups and official municipal events, will be settled in favour of the nation or group which first made its request;

(e) the City Clerk will be responsible for the administration of this policy, in association with the Mayor;

(f) notwithstanding any of the foregoing, the City Council may, in its sole discretion, direct that a specific flag be flown, or not flown, on a specific date, in which event such direction shall take precedence over any other direction contained within this policy;

ISSUANCE OF PROCLAMATIONS

(a) the Mayor may, in his discretion and on the advice of the City Clerk, issue Proclamations on behalf of the City of London;

(b) the individuals and/or organizations requesting the issuance of Proclamations be made aware of the fact that such Proclamations are issued at the sole discretion of the Mayor, on the advice of the City Clerk, and at the time, location, and in accordance with wording approved by them;

(c) Proclamations issued by the Mayor on behalf of the Municipality will not contain any inflammatory, politically insensitive, provocative or scatological references, which, in the opinion of the Mayor, on the advice of the City Clerk, would have an adverse effect on any or all of the citizens of this Municipalty of Canada.

29There was no issued proclamation of any kind filed before me. I inquired of Sadler with respect to the usual form of them. Based on his response, as well as the comments of other witnesses, I gather that it was customary for a proclamation to include one or more recital clauses, identifying the organization or individual to be honoured and the reason(s) for bestowing the honour. These recitals were followed by the actual proclamation statement. This statement, since 1989, has taken the form, “I, [name of current mayor], Mayor of the City of London, do hereby proclaim [designated dates] to be [name] [day/week/month]”?. The proclamation is printed on heavy stock paper in calligraphic lettering surrounded by a scroll. The seal of the City used to appear on it, but that practice ceased at some point. The Mayor testified that the proclamation may be delivered in a number of ways: it may be read at an event sponsored by or honouring the organization; it may be presented by the mayor in her office under the seal of the City and photographed; or it may simply be sent to the organization.

30The Mayor testified that she knew when elected that there [were] certain activities and organizations that she could not endorse by making proclamations because their purposes were incompatible with her own spiritual convictions. In these circumstances, she decided that the appropriate thing to do was to develop a policy that would permit her to remain silent when requested to proclaim in these areas. Her policy was not reduced to writing until after the Oliver decision and after she became aware that HALO would be making a request. She testified that she was concerned that, in the absence of such policy, any denial of a request for a “Pride”? proclamation would be susceptible to the kind of challenge that succeeded in Oliver. Sadler's testimony was that he informed the Mayor that he did not think her policy would insulate her from liability under the Code.

31The Mayor's policy reads:

POLICY RE: FLAGS AND PROCLAMATIONS

In addition to the City Council policy contained in Council resolution 9., June 5, 1989, regarding the flying of flags from City Hall and the issuance of proclamations, the following policy is also to be adhered to during the term in office of Mayor Dianne Haskett:

Requests for the flying of flags or proclamations are to be declined if they relate to:

1. abortion — whether it be pro-choice or pro-life;

2. sexuality — whether it be heterosexuality, homosexuality, or celibacy;

3. any issue that would cause serious controversy in the community;

4. anything that would promote any illegal activity;

5. anything that would incite hatred towards any group.

32The Mayor relied on the second paragraph of this policy in denying HALO's proclamation requests. Under cross-examination, she testified that she would not make any proclamation that included the words “gay”? or “lesbian”? because that would be a proclamation about sexuality. She also said she could not make a proclamation that would endorse the gay and lesbian “lifestyle”?. When asked to define “lifestyle”?, she replied:

... people in the community that are gay or lesbian or bisexual and living out their lives as such ... people who choose to engage in gay and lesbian activity, sexual activity or engage in gay and lesbian relationships and then how they live out that out in the community ... the outworkings of their beliefs about the appropriateness of their sexuality ...

33Clearly, the Mayor did not conceive of there being any distinction between one's identity as gay or lesbian and the sexual activities one might engage in. Both were for her caught under the rubric of “sexuality”?:

HALO has as its very raison d'être the reinforcement of an affirmation of same sex ... or gay, lesbian and bisexual activity ... acts, relationships, you know, the lifestyle in the sense that it relates to it as part and parcel of that.

34The Mayor also stated that proclamations were viewed by the public as a statement of her goodwill for an organization, of her endorsement of its activities. In her view, any proclamation recognizing HALO would be viewed as an endorsement of the sexual activity and “lifestyle”? of its members, even if the proclamation itself specifically contained a disclaimer to that effect.

35Correspondence in the Pleadings brief filed before me pertained to the issue of “Chastity Week”?. It contains neither an express request that any particular week be proclaimed “Chastity Week”? nor any draft proclamation wording. Instead, it appears to solicit the Mayor's support for a “city-wide campaign for CHASTITY”?, and then continues:

Even though the idea of a “Chastity Week”? would be absolutely fantastic in its won right (especially for all those thousands of single young people who, through self-control, are “sexually oriented”? to abstaining until marriage), it may be the creative alternative that God's people can use (to arm ourselves in the day of evil as they did in the Book of Esther) if, and when, it is your duty (?) to declare “Gay Pride Week”?! (What a travesty of justice for the mayor of Hamilton to be fined $5,000 for refusing to affirm sodomy!) You are in my family's prayers.

36There was uncontradicted evidence that the Mayor takes great personal interest and care in reviewing all proclamation requests, and that she revises the proposed wording of them and corrects grammatical errors. Since she took office, she has issued 252 proclamations. There was no evidence that she has refused any requests for proclamations during her tenure, other than the request for Pride Weekend and the suggestion of a Chastity Week, to the extent the latter can be considered a legitimate proclamation request. There is no evidence of any community service organization ever having been refused a proclamation. Previous mayors, or Council when it was issuing proclamations, have refused to grant them for commercial enterprises or in respect of political actions: native land claims or grape boycotts for example.

37Council's role in proclamations since 1989 is diminished, although the records of proceedings do show that Council has, by resolution, requested the mayor, including this one, to issue proclamations from time to time. For example, Council asked the mayor to proclaim an Annual Day of Mourning for workers killed on the job; a day for the elimination of racial discrimination; Media Violence Awareness Week; White Ribbon Week; Missing Children's Week; and General Motors of Canada Limited, Diesel Division, Appreciation Day (“Diesel Division Day”?).

38The circumstances surrounding the proclamation of Diesel Division Day are interesting. Civic officials commented that the manufacturing sector of the economy was a dying one, and that London should be attempting to attract new high-tech business. These comments were perceived as offensive to General Motors, an important area employer, and to the London residents who were its employees. The proclamation of Diesel Division Day was viewed as a way to remedy this civic slight, and that was the context in which the resolution was passed, unanimously, in Swan's recollection.

F. Proclamations in General

39George Rust D'Eye asserted that proclamations are not made pursuant to any clear legal authority. Their issuance can neither be compelled nor prohibited in a court of law. Whether they are issued at all, and by whom, is a matter of local custom. Of the thirty Ontario municipalities he surveyed, the custom varies considerably. In some, the Mayor issues proclamations; in others, Council does; and in still other municipalities, proclamations are not issued at all. Eight of the municipalities he surveyed have ceased making proclamations since the Oliver decision. Although a proclamation is of value to the organization seeking it, usually because of the attendant publicity, it is not of legal value because it confers no rights and imposes no responsibilities.

G. Effect of the Denial

40The Mayor's denial of HALO's proclamation request, and Council's subsequent failure to acknowledge the organization through a resolution, did not affect the club's ability to proceed with its planned celebrations in 1995. All of the requisite permits and licences had already been secured from the municipality, including a permit for the first-ever “Pride”? march, which attracted approximately 800 participants. In fact, “Pride”? weekend overall enjoyed much greater attendance than it had in the past. Witnesses for the complainant acknowledged that this success was partly attributable to the heightened awareness of “Pride”? that had resulted from the Mayor's denial of the proclamation and the consequent Council debate. A number of individuals, including local municipal, provincial and federal politicians, attended and signed proclamations, some of which were reproduced in the club newsletter.

41In addition to the positive expressions of support that the club received from the gay and lesbian community and some members of the broader London community, however, there was a great deal of negative or even hostile comment about the club, its activities, and gays and lesbians in general. These comments were made in radio phone-in shows, in letters to the editor of the newspaper, in telephone calls and letters to HALO, and in conversations on the street and in the workplace. Crossman traced this hostile reaction to the Mayor's denial, which he said “seemed to give permission to be homophobic”?. Sadler's testimony suggested the same causal connection when he said the Mayor's refusal was viewed by him not so much as her remaining silent or not taking a position on the matter, as with her indicating that she had “some difficulty with the gay and lesbian community”?. In addition, the complainant received hateful personal correspondence.

42Those members of the gay and lesbian community who testified, some of whom were also HALO members, spoke of the effects that the refusal of the proclamation had on them personally, and on other members of their community. All spoke of feeling personally hurt and diminished: the denial was tantamount to telling them that, because of their sexual orientation, they were not equal to other citizens in the community. Debbie Lee is a youth worker and she testified about the effect that the refusal had on teenagers in her discussion group who were just coming to terms with their sexual identity, and how it made them nervous and scared, and how these feelings were only heightened when two of them were attacked while leaving the HALO premises one evening. Pat Shanahan testified that the whole incident had a chilling effect on the willingness of other public bodies to deal with HALO.

43HALO hosted “Pride”? celebrations in 1996 and 1997. It sought proclamations from the Mayor in both years. These requests were denied, although the Mayor has continued to make proclamations recognizing the contributions and achievements of other community organizations.

ANALYSIS

A. Submissions

44In advance of making their final submissions, all parties filed written outlines of their arguments, with supporting authorities. Their further oral submissions were entertained on September 27, 1997. I want to thank all counsel for their extensive and thoughtful submissions, and for the degree of cooperation they showed throughout the hearing.

B. Elements of a Code Contravention

45A contravention of the Code is made out where it is established that:

the respondent has discriminated against the complainant by treating him or her differently from others;

that distinction in treatment is, at least in part, based on a ground prohibited by the Code;

the distinction in treatment occurred with respect to one of the protected spheres — services, accommodation, contracts, employment, or vocational associations.

46The allegation here is that, contrary to s. 9, the complainant's rights under s. 1 of the Code were infringed:

1.1 Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

C. Differential Treatment

47The Mayor granted 252 proclamation requests between the date she took office and the day she testified in this matter. During that period she turned down one bona fide request for a proclamation — the complainant's. I do not construe the “Chastity Week”? correspondence as constituting a request, and certainly not a bona fide one. As noted in para. 35, it contained neither an express request that any particular week be proclaimed “Chastity Week”? nor any draft proclamation wording, and offered itself as a strategy for denying a “Pride”? request without running afoul of the Code. I have no hesitation in concluding that the complainant was discriminated against by the Mayor.

48Council knew the complainant and HALO viewed the Mayor's denial of the proclamation request as discriminatory and had approached Swan and had corresponded with Board of Control on that basis. It would be fair to conclude that the HALO members took offence at being discriminated against. Faced with the opportunity to correct this slight to at least 250 of its citizens, Council did not request the Mayor to issue a proclamation as had occurred with Diesel Division Day, nor did it approve the Swan resolution. Council did nothing. It discriminated against the HALO constituency, which included the complainant, by treating it differently from the constituency made up of Diesel Division employees.

D. Prohibited Ground

49The Mayor's evidence made it abundantly clear that she would not make a proclamation recognizing HALO's contributions as a community organization because its constituency is made up of persons who identify as gay or lesbian. Her policy was devised, at least in part, precisely for the purpose of justifying that refusal. Her counsel argued that the complainant's differential treatment was not based on sexual orientation, since a heterosexual member of HALO would not have received the proclamation either. This submission is utterly devoid of merit. I conclude that the Mayor intended to and did discriminate against the complainant and HALO on the basis of sexual orientation.

50Even if I had not found that the Mayor intended to discriminate against the complainant and HALO on the basis of sexual orientation, I would have found that she constructively discriminated against them because her policy had a differential impact on the gay and lesbian community. To the extent that a prohibition of proclamations on the basis of sexuality entails a prohibition of proclamations for groups whose members share a particular sexual identity, which I am not persuaded is the case, there was no evidence whatsoever that anyone other than the gay and lesbian community ever seeks proclamations relating directly to sexual identity, or for groups whose members share a particular sexual identity. Again, I do not regard the “Chastity Week”? correspondence as constituting a bona fide request.

51When Council treated HALO differently and with less consideration than it had the Diesel Division, it knew that the HALO constituency was predominantly gay and lesbian. Under the jurisprudence, its so acting with that knowledge constitutes a prima facie contravention of the prohibition against discrimination on the basis of sexual orientation. In the absence of cogent evidence establishing that a consideration of the sexual orientation of many HALO members played no part in Council's decisions, I find that the City discriminated against the complainant on the basis of sexual orientation.

E. Services

52For the respondents, success or failure in this case rides entirely on their argument that the civic recognition of special days is not a “service”? under the Code. There were several strands to their argument.

(i) Statutory Lexicon

53The Code itself offers very little guidance on this issue, defining “services”? in the negative to exclude levies, fees, taxes or periodic payments imposed by law (s. 10). As well, ss. 20 and 22, which declare that certain factual situations do not offend against the right to equal treatment based on, inter alia, “services”?, suggest that the situations themselves are ones in which services might be considered to be provided. None of them are analogous to the civic recognition of special days.

(ii) Plain Meaning

54The plain meaning of “services”? is very broad indeed, as the many dictionary definitions submitted to me illustrated. At its most general and least restrictive, “services”? means something of benefit provided by one person to another. The Commission and complainant have suggested that this is the meaning I should attribute to “services”?. The usual rule of interpretation applied to terms in statutes such as the Code that are of general application and have a remedial purpose is to employ the least restrictive sense of the term, unless, of course, that would do violence to the statutory purpose or would create an absurdity. Reading “services”? as suggested by the Commission and the complainant would seem to be appropriate here. The respondents, however, have urged me not to do so, for a number of reasons which I address below.

(iii) History and Application

55Reference was made to the historical antecedents of s. 1 of the Code, which derive in Ontario from protections first enacted in 1954 in the Fair Accommodation Practices Act, R.S.O. 1960, c. 131. Those protections pertained to services “available in any place to which the public is customarily admitted”?, and that qualifying language was only eliminated from the Code in 1980. I presume that its removal was intended to effect a change in the protection offered by the Code. It may well be that under that old language, “services”? could not have the broad meaning contended for by the Commission and the complainant, but that is not particularly helpful in determining what meaning to give it in its unqualified state.

56My decision in this matter merely requires that I determine whether the civic recognition of special days falls within the nature of “services”?. Accordingly, I have considered the nature of the activities engaged in by public officials or bodies which have been found to constitute “services”? under human rights legislation. These include: the provision of social assistance benefits (Saskatchewan Human Rights Commission v. Saskatchewan Department of Social Services (1988), 1988 CanLII 212 (SK CA), 9 C.H.R.R. D/5181 (Sask. C.A.)); the awarding of research grants (Chiang v. Natural Sciences and Engineering Research Council of Canada (1992), 1992 CanLII 357 (CHRT), 17 C.H.R.R. D/63 (Can.Trib.)); and the processing of immigration applications (Menghani v. Canada (Employment and Immigration Comm.)(1992), 1992 CanLII 313 (CHRT), 17 C.H.R.R. D/236 (Can.Trib.)). The Commission referred me to the preceding cases. In addition, I asked the parties to consider the definition of “service”? in the French Language Services Act, R.S.O. 1990, c. F.32:

“service”? means any service or procedure that is provided to the public by a government agency or institution of the Legislature and includes all communications for the purpose.

57My consideration of the authorities referenced in the preceding paragraph inclines me to the view that the ordinary meaning of “services”? may include the civic recognition of special days. The respondents submit, however, that I must also consider the nature of the proclamations and the other ways special days are declared in determining whether what we are dealing with here is a service under the Code.

(iv) Authority to Proclaim Special Days

58Some statutes contain provisions empowering the declaration of special days. Those statutory provisions are not applicable in the circumstances of this case. The civic recognition of special days, whether by mayoral or council proclamation, or by council resolution, does not occur pursuant to any statutory authority. Indeed, the respondents submit that it does not occur pursuant to any legal authority at all. It is described as a ceremonial prerogative attaching to an office holder that is neither capable of conferring rights nor imposing benefits. I was told that it is “extra-legal”?, which I take to mean beyond the scope of the law: its exercise cannot be compelled or prohibited in a court of law, nor is it subject to judicial scrutiny.

59“Extra-legal”? acts are, by their very nature, also discretionary. Municipal corporations or their officials may engage in discretionary acts pursuant to statutory authority. For example, by-laws may be promulgated with respect to any number of permissible subjects enumerated in the Municipal Act, R.S.O. 1990, c. M.45. Once engaged in, however, these discretionary acts must be performed lawfully.

60The fact that an act is discretionary in nature and can be neither compelled nor prohibited does not take it outside the ambit of the Code. The discretion must be exercised in a non-discriminatory fashion in accordance with the strictures of human rights or other paramount legislation. These circumstances are analogous to those considered in Haig v. Canada (Chief Electoral Officer), 1993 CanLII 58 (SCC), [1993] 2 S.C.R. 995. In that decision, one of the issues the Court was asked to consider was whether the federal government's decision to hold a referendum in all provinces except Quebec contravened the Canadian Charter of Rights and Freedoms (per L'Heureux-Dubé J. at p. 1041, emphasis in original):

... though a referendum is undoubtedly a platform for expression, s. 2(b) of the Charter does not impose upon a government, whether provincial or federal, any positive obligation to consult its citizens through the particular mechanism of a referendum. Nor does it confer upon all citizens the right to express their opinions in a referendum. A government is under no constitutional obligation to extend this platform of expression to anyone, let alone to everyone. A referendum as a platform of expression is, in my view, a matter of legislative policy and not of constitutional law.

The following caveat is, however, in order here. While s. 2(b) of the Charter does not include the right to any particular means of expression, where a government chooses to provide one, it must do so in a fashion that is consistent with the Constitution. The traditional rules of Charter scrutiny continue to apply. Thus, while the government may extend such a benefit to a limited number of persons, it may not do so in a discriminatory fashion, and particularly not on [a] ground prohibited under s. 15 of the Charter.

61The respondents argued that the civic recognition of special days is both discretionary and “extra-legal”? and consequently neither controllable or reviewable by a court or this Tribunal. On the first argument, I find that the authorities produced do not support the conclusion that “extra-legal”? acts are beyond legislative control. Jowitt's Dictionary of English Law (London: Sweet & Maxwell 1959,) in its entry under “prerogative”? indicates that Crown prerogative can be taken away by express legislation. In In the Matter of a Reference by the Governor General in Council Concerning the Proclamation of Section 16 of the Criminal Law Amendment Act, 1968–69, 1970 CanLII 129 (SCC), [1970] S.C.R. 777, the Court considered the propriety of the Governor General in Council failing to proclaim three subsections of the legislation, and held that he had exercised the discretion given to him. The Court sated that if he had acted contrary to the intention of Parliament, it could control him by legislation.

62With respect to the second branch of the respondent's argument, while the precise authority pursuant to which proclamations and other declarations of special days are made may be shrouded in the mists of time, the fact remains that they are made and I cannot conclude that they are immune from scrutiny. I share Austin J.'s difficulty with the “extra-legal”? argument as expressed in Haig v. Durrell (unreported, July 15, 1990), Ontario Court — Weekly Court), in which he issued oral reasons granting an expedited judicial review application and quashing Ottawa City Council's resolution revoking its earlier recognition of Gay Pride Day in Ottawa:

It was agreed amongst counsel that the source of the power is not clear. There is no specific statutory authority to make such proclamations. Counsel on behalf of the city used that as a basis for arguing that there being no statutory authority, the granting or not granting of a proclamation could not be attacked. In my view, perhaps a simplistic one, that simply cannot be. The municipality, whether it be the Corporation of the City of Ottawa or any other municipality in Ontario, is creature of statute. If it does act, presumably it does so pursuant to some authority or power given to it expressly, or by implication, by a statute or regulation. But if it acts, it must do so lawfully.

63Subsequent to issuing the reasons from which the above is extracted, but prior to any order having been taken out, Austin J. heard a motion to revoke his order and transfer the matter to Divisional Court for hearing by a full panel. He allowed the motion. Counsel for the City suggested to me that Haig v. Durrell stood only for the proposition that the matter should have been heard by a three-person panel of the Divisional Court. Certainly, I agree that the above extract does not constitute a ruling binding on me, or on anyone, but I nevertheless find the reasoning to be persuasive. Although Austin J. is not considering whether proclamations are services under the Code, he is considering whether their extra-legal character takes them beyond the scope of the law, and concluding that it does not. Similarly, in Oliver, the adjudicator rejected the argument that the extra-legal and discretionary character of the civic recognition of special days takes it beyond the reach of the Code as not constituting a “service”?.

(v) The Charter

64The respondents also submit that I must “read down”? the term “services”? in the Code so as to exclude from its ambit things that are pure speech. They place proclamations and other civic declarations of special days in the category of pure speech. The rationale for adopting this interpretive approach is that to do otherwise would involve interpreting the Code so as to trench or encroach on rights guaranteed in the Charter, namely the freedom of expression guaranteed in s. 2(b). They find support for their position in that portion of the French Language Services Act's definition of “service”? which provides that it “includes all communications for the purpose”?. In the absence of this language, they suggest, communications would not be considered “services”?.

65The Commission submits that “reading down”? is not an appropriate tool to apply to statutory interpretation. Rather, it is a remedy that is applied after it has been determined that the application of a statute in accordance with the plain meaning of the words used in it contravenes the Charter. I agree. I am not sure, however, that my doing so disposes of the respondents' argument. Essentially, they say, if “services”? includes speech, s. 2(b) is contravened because it includes the right not to speak. I cannot accept this argument, for reasons set out in the following paragraphs.

66Section 2(b) of the Charter provides:

2. Everyone has the following fundamental freedoms:

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

67I accept that the right to freedom of expression guaranteed in s. 2(b) of the Charter also includes the right not to speak, and the right not to be made to say things one does not wish to say. Authority for these propositions is found in Attorney General of Quebec v. Irwin Toy Limited (1989), 1989 CanLII 87 (SCC), 58 D.L.R. (4th) 577 (S.C.C.), where the Court found that a prohibition on television advertising aimed at children contravened s. 2(b), and RJR-MacDonald Inc. v. Canada (Attorney General)(1995), 1995 CanLII 64 (SCC), 127 D.L.R. (4th) 1 (S.C.C.), wherein the Court found that a legislative requirement that unattributed health warnings appear on tobacco packaging contravened s. 2(b).

68In contrast to the situations confronting the Court in the Irwin Toy and RJR-MacDonald cases, interpreting “services”? to include speech or other expressive conduct does not itself prohibit or compel that speech. It may attach legal consequences to the speech, or to a failure to speak. The speaker remains free to speak (or not), but runs the risk that his or her expressive activity, if exercised in a discriminatory fashion on the basis of a prohibited ground, may lead to a finding of an infringement of the Code and the issuing of a remedial order against the speaker and in favour of the person harmed by the speech. Interpreting “services”? to require that, in municipalities where statements of the civic recognition of special days are available, they be made available on non-discriminatory basis does not directly prohibit or compel speech. To so interpret “services”? does not trench on s. 2(b) rights at all.

69Notwithstanding my finding in the preceding paragraph, I want to address the possibility that an interpretation of “services”? that might attach legal consequences to speech could be viewed as an incidental infringement of s. 2(b).

70The argument of the respondents, carried to its logical conclusion, would gut the Code, which already attaches legal consequences to expressive activities, including speech. For example, a contravention of the Code may occur in certain circumstances where a sexual solicitation or advance is made (s. 7(3)); where statements indicating an intention to contravene are made (s. 13); or where pornographic photos or other material degrading to women is posted in the workplace (s. 7(2)). It is important to note that freedom of expression is not the only fundamental freedom guaranteed by s. 2 of the Charter. It also guarantees freedom of conscience and religion, peaceful assembly and association. If the Code cannot be interpreted so as to encroach on freedom of expression, presumably it also cannot be interpreted so as to encroach on these other fundamental freedoms, and yet it declares, for example, an equal right to membership in vocational associations and prohibits the infringement of that right.

71Furthermore, s. 2 rights are not absolute, but are subject to the limitations contained in s. 1 of the Charter:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

72In order to determine whether interpreting “services”? to include speech providing for civic recognition of special days offends s. 2(b) of the Charter, I would need to consider whether any prima facie infringement is saved by s. 1. To do so, I would need to assess a number of things, among them, the circumstances in which the speech is made; the content of and purpose served by the speech, the purpose of the Code provision; the degree to which it impairs the freedom; whether less intrusive means were available; whether the asserted freedom conflicts with another Charter value. With respect to the last factor listed, it is worth noting that s. 15(1) also appears in the Charter. The Supreme Court of Canada has interpreted it as prohibiting governmental discrimination on the basis of sexual orientation in Egan v. Canada(1995), 1995 CanLII 109 (SCC), 125 D.L.R. (4th) 609, and the British Columbia Supreme Court has done the same in Little Sisters Book and Art Emporium v. Canada (Minister of Justice)(1996), 1996 CanLII 3465 (BC SC), 131 D.L.R. (4th) 486. Section 15(1) provides:

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.

73The Charter is designed to restrain government action that infringes on the rights guaranteed therein. The City and the Mayor are, of course, government actors, and yet it is they who assert that the effect of the Charter is to minimize scrutiny of their actions under the Code. The Supreme Court of Canada has cautioned against interpreting the Charter in this way (per Dickson C.J.C., in R. v. Edwards Books & Art Ltd.(1986), 1986 CanLII 12 (SCC), 35 D.L.R. (4th) 1 at 49):

In interpreting and applying the Charter I believe that the courts must be cautious to ensure that it does not simply become an instrument of better situated individuals to roll back legislation which has as its object the improvement of the condition of less advantaged persons.

74To sum up with respect to the Charter arguments relating to “services”?, here we have a case where a governmental actor is asking me to read restrictively a word in the Code so as to insulate from scrutiny its actions, which I have found to be discriminatory on a basis prohibited by both the Code and the Charter, because absolute freedom of expression, which is nowhere guaranteed in the Charter, precludes the attaching of legal consequences to expressive activity. I cannot accept this argument.

75I find that the respondents have discriminated against the complainant with respect to services on the basis of sexual orientation contrary to ss. 1 and 9 of the Code.

REMEDY

76My remedial jurisdiction is set out in s. 41 of the Code:

41. Where the board of inquiry, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 9 by a party to the proceeding, the board may, by order,

(a) direct the party to do anything that, in the opinion of the board, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices; and

(b) direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.

(4) Where, upon dismissing a complaint, the board of inquiry finds that,

(a) the complaint was trivial, frivolous, vexatious or made in bad faith; or

(b) in the particular circumstances undue hardship was caused to the person complained against,

the board of inquiry may order the Commission to pay to the person complained against such costs as are fixed by the board.

77The complainant and the Commission seek the following remedy:

a. a declaration that the Mayor's refusal to proclaim “Pride Weekend”? constitutes unlawful discrimination on the basis of sexual orientation;

b. that the City of London proclaim Pride Day/Weekend and recognize the service provided to the London community by HALO, if so requested by HALO or any other “Pride”? organizing committee;

c. that the City of London and London City Council make a statement of recognition that the lesbian and gay and bisexual communities are integral and important communities within the City of London and that they make a commitment to investigate ways of fostering a positive relationship between the City of London and the gay, lesbian and bisexual communities;

d. that a meeting take place forthwith between delegated members of HALO and the City of London to begin discussions toward improving relations between the City of London and the gay, lesbian and bisexual communities;

e. damages in the amount of $10,000 against Mayor Haskett;

f. damages in the amount of $10,000 against the Corporation of the City of London;

g. pre-judgment and post-judgement interest;

h. solicitor and client costs; and

i. such further and other relief as the complainant or Commission may advise or this Board of Inquiry deems appropriate.

78I declare that the Mayor's refusal to proclaim “Pride Weekend”? in 1995 constitutes unlawful discrimination on the basis of sexual orientation. I further declare that the City's failure to take any steps to redress the Mayor's discriminatory conduct constitutes unlawful discrimination on the basis of sexual orientation.

79I have no jurisdiction to award costs in any circumstances other than those specified in s. 41(4) of the Code. The request for relief set out in para. 77(h) is denied.

80The complainant was President of HALO in 1995. He made the complaint in respect of himself only, and not in any representative capacity on behalf of the members of HALO or the broader London gay and lesbian community. Although the denial of civic recognition for HALO and the declaration of “Pride”? damaged all members of the gay and lesbian community, I am confined to awarding damages in respect of the injury suffered by the complainant. I assess those damages at $10,000, for which the Mayor and the City are jointly and severally liable. This amount is in respect of damages both for loss of the right to be free from discrimination, and for mental anguish caused by the infringement of that right. I conclude that the Mayor and the City acted wilfully or recklessly within the meaning of s. 41(1)(b) having regard to the following:

Ӣ the Oliver decision issued prior to the infringement here, and involved a finding that a similar refusal on the part of the mayor of a municipality constituted a contravention of the Code;

Ӣ the Mayor and Council were aware of the Oliver decision at the time of the infringement here;

Ӣ the Mayor drafted her policy in a deliberate attempt to avoid the consequences of Oliver;

Ӣ the discrimination against the complainant was played out publicly in Council, in the media, and in the streets of the community, causing considerable mental anguish and distress. The complainant was the recipient of hateful personal correspondence as a result of the request for and refusal of the proclamation.

81The amount awarded is subject to both pre-judgment interest, measured from the date of the complaint, and post-judgment interest. Both are to be calculated in accordance with the Courts of Justice Act [R.S.O. 1990, c. C.43].

82Evidence was led with respect to the divisive effect on the community of events surrounding the denial of the proclamation in 1995. From the videotape evidence, it was also clear that there was considerable division within Council. It is fair to say that the litigation of these matters, which attracted a considerable amount of local media attention, has done nothing to heal these divisions. In the circumstances, I find that the relief requested in para. 77(d) is appropriate to redress the effects of the discrimination that occurred here.

83To grant the relief requested in para. 77(b) and (c) would require me to compel the respondents to speak. I derive my remedial authority from statute. Consequently, I am a government actor subject to acting in accordance with the Charter. An order compelling the respondents, or either of them, to speak constitutes a prima facie infringement of s. 2(b) of the Charter, which guarantees the freedom to remain silent. In the circumstances of this case, however, such an order withstands scrutiny under s. 1.

84The remedy requested is rationally connected to the statutory purpose underlying s. 41(1) of the Code, which is to remedy infringements of the Code. Here the infringement was occasioned by a failure to speak. Logically, then, the remedy is to compel the speech that ought to have been made. That is particularly the case here where public acknowledgment of sexual identity is the uniquely appropriate means of overcoming the historical discrimination suffered by gays and lesbians. The Supreme Court of Canada has twice considered the constitutionality of ordering compelled speech, most recently in Slaight Communications Inc. v. Davidson(1989), 1989 CanLII 92 (SCC), 59 D.L.R. (4th) 416. The Court in Slaight was asked to scrutinize the constitutionality of an arbitrator's order requiring an employer to furnish a wrongfully dismissed employee with a letter of recommendation, and prohibited the employer to say anything beyond what was contained in that letter to any prospective employer that contacted it. The employee in question had been found to have been damaged by the employer's vicious and untruthful remarks. Dickson C.J.C. held that, “On the facts of this case, constitutionally protecting freedom of expression would be tantamount to condoning the continuation of an abuse of an already unequal relationship”? (at p. 421). This conclusion was based on Dickson C.J.C.'s characterization of the employee as “vulnerable”? vis-à-vis his employer. The Court was also influenced by the fact that the letter of recommendation contained only a recitation of objective facts, and not any statements of opinions. The compelled statement of opinions not one's own had previously been found to offend s. 2(b) of the Charter and not be justified under s. 1 in Re National Bank of Canada and Retail Clerks' International Union (1984), 1984 CanLII 2 (SCC), 9 D.L.R. (4th) 10.

85The upshot of Slaight and National Bank is that the ordering of compelled speech will run afoul of s. 1 where it requires the uttering of opinions that are not those of the speaker. The statements that I am asked to compel do not contain opinion, with the possible exception of the word “important”? in para. 77(c).

86Counsel for the Mayor tried to convince me that proclamations were a form of political speech and entitled to a great deal of deference. I have reviewed the draft proclamation in question again. In my view, they are devoid of political content, and they are not made political merely because uttered by a politician. The Mayor expressed concern that they would be viewed as her endorsement of a political agenda for gay and lesbian rights. Reference was made to a decision of the United States Supreme Court in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 115 S.Ct. 2338 (1995). In Hurley, the organizers of an Irish American parade declined to permit a group of gay and lesbian Irish Americans to march behind a banner identifying the fact that they were gay and lesbian. The Court concluded that parades were an [sic] form of expression protected by the First Amendment and that the organizers were constitutionally protected from having to include the gay group's message as part of their own. An important part of the Court's rationale for this finding was that it would be difficult for the organizers to dissociate themselves from the gay group's message. The United States Supreme Court in Turner Broadcasting System, Inc. v. F.C.C., 114 S.Ct. 2445 (1994), and the Supreme Court of Canada in RJR-MacDonald, supra, were also influenced in their decisions by the ability of the speaker to dissociate itself from the message compelled. No such problem exists here. The beauty of speech, as opposed to symbolic expressive conduct such as a parade, is that there is no need to speculate about what those words mean. The proclamation words simply do not express what the Mayor referred to as “support for homosexuality as a preferred lifestyle”?.

87I grant the relief requested in para. 77(b) and (c). I understand that what is sought in para. 77(b) is civic recognition of HALO's contributions and of “Pride Day/Weekend”?, and that HALO may seek such recognition from either of the respondents.