Response to Comments from Liberal MP Marcus Powlowski

Dear Friends:

I am writing to address a number of misconceptions that were published in last week’s letter to the editor from local Liberal MP Marcus Powlowski. Mr. Powlowski’s letter was about the November 20, 2024 decision of the Human Rights Tribunal of Ontario concerning the Township of Emo and Mayor Harold McQuaker.

Some of the misconceptions spread by this letter have been festering in media coverage and commentary surrounding this story for a number of weeks, and require clarification more generally. Mr. Powlowski’s letter provides an opportunity to do so.

First, Mr. Powlowski writes, “I think Emo should have flown the [Pride] flag”. We share this sentiment (obviously), but raising the flag is not what the Tribunal proceeding was really about.

What the claim was about was the failure of the Township to provide a proclamation in support of Pride Month in 2020, as it had done for Borderland Pride and several other organizations in the past. The provision of these proclamations is a service offered by the municipality. Municipalities are prohibited, under the Human Rights Code, from discriminating in the provision of a service on the basis of a protected ground, such as sexual orientation, gender identity, and gender expression – but also other grounds, such as disability, colour, creed, and family status.

The ruling from the Tribunal was not a surprise. Cases at the Tribunal based on these exact facts have been decided in this way since 1995. It was made very clear (as the Tribunal found) that the reason Emo’s council denied the proclamation was the sexual orientation and gender identity associated with the group requesting the service. At the time, Mayor McQuaker was explicit about this in his public comments during the meeting and to the media.

Second, Mr. Powlowski disagrees that Mayor McQuaker was sanctioned by the Tribunal and ordered to pay compensation for his discriminatory conduct. In fairness, it may be reasonable to disagree about whether politicians should face personal liability for missteps taken in public office, or even whether Mayor McQuaker truly acted in bad faith (as the Tribunal found) or simply just ignorance.

However, it is eminently not reasonable to suggest – as Mr. Powlowski has – that we can have a functioning society where civil rights cannot be enforced in courts and tribunals, or where there are no consequences for violating those rights. If there was no cost to breaking the law – particularly for those in positions of power and authority – our rights would be worth little more than the paper they are printed on.

Similarly, much fuss has been made of the fact that Borderland Pride garnished Mayor McQuaker’s bank account to satisfy the Tribunal’s judgment. This was done because Mayor McQuaker told the Toronto Sun, “I utterly refuse to pay the $5,000 because that’s extortion” and “I will not pay the $5,000”. As many of the clients in my law practice (and their adversaries) will know, court and tribunal orders are not optional. When people refuse to pay the judgments ordered against them, the law provides enforcement tools to collect the funds owing. This was no different. Everyone has to be able to rely on and enforce the laws of the land or there is no point in having them.

Third, Mr. Powlowski writes “we need to have a more productive conversation about our LGBT neighbours”. Well, sure. But frankly, this is the kind of naive observation that comes from someone who missed the first half of the movie.

Extensive efforts were undertaken for over 4 years to help the Township of Emo come to terms with their legal obligation not to discriminate under the Human Rights Code and the importance of the specific service that they had refused to provide to Borderland Pride. They didn’t listen, and apparently they did not care what it cost their taxpayers in legal fees.

At this juncture, there is no “productive conversation” to be had with civic leaders who are engaged in litigation – at ongoing, significant taxpayer expense – for the sole purpose of trying to convince a court that they should be able to deny people services if they do not care for their identity. That is what the municipality’s judicial review seeks: a judicial determination that municipalities can discriminate in the provision of services at the whims of prejudice around the council table. The Township and the Mayor want the court to legalize discrimination against queer people and other minorities by conflating their personal views with the role of the municipal government and its legal obligations to the public.

That our MP now offers his tacit support for this dangerous, offensive, and discriminatory proposition is deeply troubling to us. As the harassment and threats of violence we have received since November 20 continue to mount, Mr. Powlowski's letter suggests that he cannot be counted on to defend the human rights framework that minorities in Canada – and in this region – so desperately depend on in the face of rising hatred.

Perhaps it also suggests that our protection under the law is politically expendable on the eve of an election.

Sincerely,

Douglas W. Judson (he/him)

Co-Chair

Borderland Pride