An extraordinary class action

Even for seasoned class action lawyers, June 18, 2018 was an unusual day in court. Federal Court Justice Martine St-Louis presided over a hearing that lead class counsel Douglas Elliott calls “more of a therapy session than a legal hearing.” Fifteen victims of the federal government’s systemic discrimination and persecution of its gay, lesbian and bisexual employees stood up to tell their stories before the court.

One of them was Michelle Douglas, whose discrimination case against the military ended in 1992, forcing the Canadian Armed Forces to grudgingly change its ban on allowing LGBT people to serve. Douglas’ case was settled so she never had her day in court. For her, and others whose lives and careers were devastated, that settlement hearing “was a profoundly emotional day,” she says. “It felt like a real sisterhood and brotherhood coming together, a group of people with shared experience, a shared commitment to service to Canada, who had been so unjustly treated. I addressed the court. I held in my hand as I did so a copy of the prime minister’s apology, that might give you a sense about how much that meant to me. I wanted to say certain things to the court, I wanted the court to hear those things. And it was actually my only time to ever really address the court on the painful chapter that I experienced back in the 1980s with the military.”

Crown lawyers say even though it was a settlement hearing with no findings of fact or anything to prove, the judge understood that allowing class members to speak was a valuable part of ensuring justice was done. “Justice St-Louis deserves credit, because she really went out of her way to make sure that there was a safe space for these people to tell their stories,” says Alexander Pless, general counsel with the Department of Justice. “I am sure that they could see that she was interested in their stories, and it was important for her to hear them.”

The were many poignant, heart-breaking stories that day as well as tears not only from class members but counsel and staff in the court. Several participants say the emotions of the moment are likely what led St-Louis to make another unusual move: approving the settlement from the bench with members of the class in the courtroom. “[J]ust the eruption of happiness in the court, of the applause, and people were crying and hugging one another. I’ve never seen anything like that ever — in any case that I’ve been involved in. I doubt I ever will. It was an extraordinary moment,” recalls Halifax lawyer John McKiggan, who has worked on a number of historical abuse cases.

On top of all the emotions in the courtroom, though, the settlement of this case was the culmination of something that spanned decades, hundreds of government departments and a creative legal team fighting for redress.

The class action

This was no ordinary class action against the government. Firstly, at $145 million, the LGBT purge class action is the largest such settlement for redress of historical harms to the lesbian, gay, bisexual, transgender community in the world. In addition, the DoJ lawyers say that, unlike most lawsuits against the government that affect one or two ministries, this involved at least 200 departments and agencies, including about 20 core departments whose legal teams participated. They were led by DoJ senior general counsel Christine Mohr and Pless.

That emotional June day, St-Louis approved a truly unique settlement for thousands of public servants, as well as members of the CAF and RCMP who were discriminated against, persecuted or fired between 1955 and 1996 due to their real or perceived sexual orientation. Compensation for most class members will be between $5,000 and $50,000. The final settlement amount will be determined by how many make claims; lawyers estimate perhaps 1,000 victims are still alive. Former Supreme Court of Canada justice Marie Deschamps will adjudicate exceptional harm claims that could result in awards of up to $125,000 per person. Beyond individual compensation, the settlement provides money for education and reconciliation, including a monument in Ottawa and museum exhibits, as well as individual apologies and amendments to employment records to reflect that victims were unjustly fired. Class members will also receive the Pride Citation, an honour to reflect their service to Canada.

Class counsel will be paid $15 million directly by the government and are obliged to assist claimants through the claims process at no charge. The claims period begins in late October.

The personal toll of the purge

Many factors and players over the decades paved the path toward the class actions, which were launched in the fall of 2016. These included groups and individuals who fought for redress, particularly from the military, usually with little success. Their aim was not primarily financial compensation but an official apology for and recognition of the discrimination they faced while serving their country.

Until the early 1990s, few Canadians had any inkling their government was systematically discriminating against homosexuals, who were defined by the government’s security apparatus as suffering from a “character weakness” that could open them to blackmail by “enemy” agents. A 1992 article by Canadian Press reporter Dean Beeby, based on the release of explosive government documents, showed the RCMP had in 1959 “launched a massive hunt for male homosexuals” in Ottawa. The “hunt” forced many government employees to live a double life for fear of being sanctioned, fired, transferred or denied opportunities. They, and often their families, were surveilled and questioned by the RCMP in efforts to get names of other suspected homosexuals. Few would ever discuss what happened to them publicly.

A few brave individuals who had been investigated by the Special Investigations Unit of the Military Police and then forced out — under Canadian Forces Administrative Order 19-20 – Homosexuality – Sexual Abnormality investigation, Medical Examination and Disposal — tried on their own to get redress, apologies or answers, but to no avail.

The first to openly challenge her expulsion from the forces for being a lesbian was Barbara Thornborrow. In May 1977, she’d been investigated by the SIU and was given an ultimatum to admit she was gay and be released or agree to see a psychiatrist. She refused and went public with her story, including showing up on Parliament Hill during hearings on the Human Rights Act. Shortly after that, Thornborrow was let go as “not advantageously employable,” the official notation used frequently on military discharge papers in these cases. A group of lesbians in the navy in Newfoundland was also purged that year. Despite the publicity of these events, nothing changed.

Diane Pitre suffered not only ongoing surveillance and questioning by the SIU while at CFB Chatham in New Brunswick and CFB Borden in Ontario but was subjected to months of psychiatric evaluations. Pitre describes being 18 and undergoing her first SIU interrogation at a mysterious Halifax location in 1977: “This was like 10 o’clock at night and it lasted way into the morning and then they drove me to the base, dropped me off in a psych ward, then they picked me up in the morning. And they did that for two, three days: investigation, lie detector tests, psych ward, then back to my base.” The two SIU operatives continuously asked her highly personal questions: Who is the man in the relationship? Do you like to masturbate in front of a mirror? Who takes the garbage out? Do you use a dildo? Do you hate men?

As word got out on the base about the investigation, the obscene phone calls and name-calling started. Pitre was sexually assaulted by a drunken male corporal, who was never brought to bear for the crime. It became too much, and on Sept. 24, 1980, she was forced to quit. The harassment was so severe she and her partner left town.

For decades, all Pitre wanted was an apology for her treatment. She approached MP Svend Robinson among others. She wrote dozens of letters, including to senior military officer Michel Drapeau (now retired and practising law). Drapeau’s response, she says, was essentially that it was never going to happen.

Martine Roy, too, was subjected to multiple humiliating and degrading SIU interrogations and strung along for years until one day, in December 1984, she was called in to the office at CFB Borden and told she had nine days to pack up her stuff and get out. She was a sexual deviant and was being discharged for homosexuality, she was told. Roy returned home to Quebec, broken. She and her father wrote letters of grievance to everyone from commanding officers to the chief of defence staff and even then-governor general Jeanne Sauvé. Every time, they were told “that was the law and there was nothing they could do. That took five years,” says Roy. For years, she struggled with drug addiction, underwent intensive therapy, had difficulty maintaining relationships and lived with the constant fear and anxiety of rejection for being her real self.

Lawyers were not immune from the discrimination either. In 1974, 17-year-old Michael Fox joined the army reserve then served a year as a UN peacekeeper. “I suspected I was gay, but at that age and in that time, I thought that since it had only recently been decriminalized and was still contrary to military law, it was utterly immoral and I vowed to remain celibate,” he recalls. As he completed more of his education and began naval officer training, Fox realized it would be impossible to keep this vow of celibacy even though “my attitude then, and still is, that the best antidote to prejudice is to be out and quietly competent. Unfortunately, being out was not an option back then.” He saw the SIU conduct anti-gay operations in Halifax, arresting and discharging sailors. “I always awaited arrest and expulsion with certain humiliation, even if not disgrace,” says Fox.

Resolving to fight such polices, he went to law school. Soon after graduating, Fox says, he basically came out to his commanding officer. He’d also applied for and was offered a job in the Judge Advocate General’s office. But the bottom fell out when he received a call that his superior officer had told the JAG he was gay and would therefore be investigated. “I had no real choice but to resign from the reserve and withdraw my application.” Fox went on to have a meaningful and lengthy career as a Crown attorney in Hamilton, Ont., where he still works. Yet, even after all this time, he finds those events tremendously difficult to discuss.

Discrimination was not so blatant for former DoJ lawyer Mark Berlin. While he had “some great jobs,” he says, “in my mind . . . I still believed for many years, and indeed to this day, that there were certain opportunities and positions that were not provided to me simply because I was gay.”

He remembers one fateful day in 1988 that changed his life. Berlin was ministerial liaison counsel between the Justice department and Justice minister’s office, where as a five-year call, he wrote speeches, among other duties, for then-minister Ray Hnatyshyn. He went across the street to the old Citadel hotel to play squash with his boss at lunch. After the game, his boss remarked somewhat off-the-cuff that their assistant deputy minister had asked him if he thought Berlin was gay. He scoffed at the idea and told the ADM that, of course, Berlin wasn’t gay. The ADM then added if he was gay, they’d have to fire him.

“Thirty something years later, I could tell you, I remember where I stood and the words that were said to me.” Now retired from the DoJ after a 32-year career and speaking publicly about this with Canadian Lawyer for the first time, Berlin remembers “getting dressed and going back to the office and having this explosion of 1,000 things going on in my head: ‘Do I admit it? Am I going to get fired when they find out?’ It is certainly what led to the spiral down.” That day was the beginning of a double life where he had to be one person at work and another in his “real” life. It left him fighting emotional and psychological demons for years.

Both Berlin and Fox are members of the class.

Change is forced upon the military

The national security campaign against LGBT members of the civil service waned by the mid 1980s, but the injustices continued in the military for another decade. Transformation of the military’s policies eventually came in the form of Michelle Douglas, a promising young air force lieutenant and only the second woman to join the Military Police unit that ironically conducted the purge investigations. Suspected of being homosexual, Douglas, like others, was taken to a non-military location for interrogation by two SIU officers. In 1989, after days of intensive questions and polygraph tests, she admitted she was a lesbian, was stripped of her security clearance and forced to leave the military for being “not advantageously employable.” With the help of Robinson and lawyer Clayton Ruby, she sued the military for violating her Charter rights. The case first went to the independent Security Intelligence Review Committee, which blasted the SIU for “deplorable” conduct and ruled the military’s bar on employing homosexuals unconstitutional. It ordered Douglas’ reinstatement. The government appealed.

On the eve of the trial in Federal Court, the government settled with Douglas for $100,000. Faced with the lawsuit, the military finally revoked CFAO 19-20, its policy banning homosexuals. Several similar suits were quietly settled in the following year. The government never apologized to them or offered any kind of restitution. And while, by 1992, gays and lesbians were no longer banned from serving (a few years before changes were made so LGBT soldiers could not be forced out but also would not be eligible for training or promotions if they stayed), it would still be years before LGBT service members would feel comfortable being open about their sexuality.

Road to an apology — and more

Starting around that same time, professors Gary Kinsman and Patrizia Gentile did extensive research on national security campaigns against lesbian and gay men. Their 2010 book The Canadian War on Queers: National Security as Sexual Regulation chronicled the official and personal stories of Canadians affected by the purge. In 1997, scholars Carmen Poulin and Lynne Gouliquer, who had resigned from the military, began interviewing current and former lesbian service members and their partners. One of the women they interviewed was Pitre, who later connected them with MP Peter Stoffer, who in 2009 was one of the first MPs to seek an apology for purge victims from then-defence minister Peter MacKay. Stoffer was roundly rebuffed.

Organized actions began to form. Poulin, Gouliquer and a group that included Pitre, Roy, Kinsman and others affected by the purge created the “We Demand An Apology Network” in 2015. Its main purpose was to secure a public and official government apology and redress process for purge victims. In June 2016, the network held a press conference in Ottawa to publicly call for an apology. Days later, EGALE Canada Human Rights Trust released “The Just Society Report: Grossly Indecent: Confronting the Legacy of State Sponsored Discrimination Against Canada’s LGBTQ2SI Communities.” Chaired by lawyer Douglas Elliott, the committee, among other demands, also called for an apology from the government for its the systemic purge.

The pressure was on and various paths were converging. Elliott, a well-known equality and gay rights lawyer, had met Michelle Douglas in the early 2000s during the M. v. H. case, which gave recognition to same-sex common law relationships. Douglas was then president of the Foundation for Equal Families, which intervened in the case and hired Elliott.

Working on another LGBTQ rights case a few years later, he’d met former sailor Todd Ross. Elliott enlisted Ross to tell his “untold” story at the release of the “Just Society Report.” After an 18-month investigation, sobbing and hooked up to a polygraph machine, still somewhat in denial of his own sexuality, Ross admitted he was gay. Only 21 and feeling he had no options, Ross agreed to leave the navy and was discharged on June 20, 1990. Traumatized, ashamed and alone, Ross tried to take his own life.

After that emotional press conference, Roy pressed Elliott on whether the government would do anything for purge victims. He told her it was more likely than ever. Followup meetings with the government got underway. Undertakings to apologize and make other legislative changes called for in the “Just Society Report”  were made by the Prime Minister’s Office — but months went by with no concrete action. Elliott and others were losing patience.

After another meeting with a determined Roy, Elliott told her, “The only way this could be done, if at all, would have to be a class action like we did in Hislop,” the 2007 Supreme Court of Canada case that extended Canada Pension Plan spousal pension benefits to same-sex survivors. “I saw how a class action could really be a powerful tool for LGBT folks. Because so often, it’s lonely individuals, it’s not always the Michelle Douglases, that glorious test case. It’s people trying to get their pension, trying to solve the problem in their own workplace,” says Elliott. For 30 years, Roy had been looking for someone to take the gamble with her and launch a legal fight. “You needed someone who really believed,” she says. “With [Elliott], it was beyond being gay, beyond being a lawyer.”

Buoyed by the conciliatory attitude of the Trudeau government, armed with the outcome of the 2010 SCC case Vancouver (City) v. Ward, which allowed for damage awards for Charter breaches, and with a sense that the only way to “goose” the feds into real action was through the courts, Elliott and his firm Cambridge LLP geared up to file a nationwide class action. They enlisted Audrey Boctor, of IMK LLP in Montreal, to represent Quebec plaintiffs.

There were many legal issues to overcome, says Boctor. When she heard the victims’ stories, she knew something had to be done, “but legally speaking, historical abuse claims have a number of challenges. The first and obvious one being limitations . . . and the second are always considerations arising under the Crown Liability and Proceedings Act. In this case, we had to think how about how we would argue s. 9 of the act, which deals with when benefits are available under other government programs, whether that’s a complete bar to bring a proceeding like this.”

Despite the potential complications, the class actions were launched Oct. 31, 2016 in Ontario, with Ross as the representative plaintiff represented by Elliott and in Quebec by Boctor with Roy as the representative plaintiff. “I actually called my contact in the Prime Minister’s Office the night before we launched and I said, ‘Time’s up, we’re launching a class action tomorrow,’” Elliott recounts. “And he was shocked. I said, ‘We’ve been waiting too long.’ And I said, ‘I can tell you right now, I’ve heard many rumours that someone’s going to sue, so it’s not whether there’s going to be a class action, it’s who’s going to be suing you.’”

Elliott says they discovered three or four other actions against the military, mostly for gender discrimination with LGBT matters bolted on. “So, we had to reach out to all of these people and say, back off, leave the LGBT piece out,” he says. “And we succeeded in doing that, because I had heard from the Department of Justice by then and they said, ‘Look, unless you represent everyone, we will not negotiate with you.’”

Another consideration was an action being launched by McKiggan, of McKiggan Hebert in Halifax. He was contacted seven years before by former members of the Armed Forces telling him stories of being forced out. He was aghast at learning what happened, but nothing went forward. Then, a couple of years ago, he was approached by other former service members, including Alida Satalic, who became the third representative plaintiff in the purge class action. Experienced in historical redress cases, McKiggan looked at their claims with renewed vigour. He figured out a way forward. “I wanted to frame the claim as a breach of fiduciary duty because, at least here in Nova Scotia anyway, there’s no limitation period for breach of fiduciary duty claims.” Working with Kirk Baert at Koskie Minsky LLP in Toronto, McKiggan says the “thought was keep it as simple as possible. Keep the class narrow: the military. Keep the claims narrow: breach of fiduciary duty and systemic negligence.”

McKiggan learned through Kinsman, whom he was going to use as an expert witness, that Elliott was about to file parallel actions. After some negotiations, they agreed to roll the three suits into one, filing in the Federal Court and covering the broader class of the military, civil service and RCMP. The Federal Court route came from lessons learned the hard way of dealing with multiple jurisdictions across the country — for McKiggan in the Indian residential school class actions and for Elliott in the same-sex marriage cases. The combined class action, Ross, Roy and Satalic v. Her Majesty the Queen, was filed March 13, 2017 in Montreal.

No ordinary class action

Despite the breadth of the suit, the government came back swiftly with an offer to begin settlement discussions. “In this case, the stars aligned early,” says Pless. “I think probably the biggest difference with this case was that the government was already very knowledgeable about the history and the underlying issues.
. . . And then the government also, I think, had a general sense of how they wanted to address these kinds of issues with the LGBT community.” Considering the “Just Society Report” and interactions with the community, he says, the government was already looking to right historical wrongs including amending the Criminal Code and expunging old convictions. In addition, the feds had set up a new LGBTQ2 Secretariat within the Privy Council and MP Randy Boissonnault was appointed as a special adviser to Prime Minister Justin Trudeau on LGBTQ issues, all in parallel with work on the formal apology for the state’s historical discrimination.

Negotiations still took a year, but monthly meetings and a willingness on both sides meant an agreement in principle was in place when Trudeau made his apology in the House of Commons on Nov. 28, 2017. “The way in which the negotiations unfolded was very positive,” says Pless. “It really is a model of how these kinds of negotiations can occur. . . . The approach was not an adversarial approach, it was a genuinely constructive dialogue.”

Plaintiffs’ counsel are also positive. “I have a tremendous amount of respect for everyone who sat around that table. They were extremely sensitive to the issues that class members were facing,” says Boctor. “It did take almost a year to come to an agreement and I think that indicates that it wasn’t always smooth sailing.” She describes Mohr and Pless as “probably two of the best ones I’ve encountered in my career.” Elliott calls the negotiations “collegial but tough.”

After the PM made his tearful apology, final negotiations began. “That turned out to be a lot more complicated than expected. The devil’s in the details and there was a lot of work to do on the details,” says Elliott. “I don’t think there’s ever been a settlement like this before. It covered every government department over a 40-year period.
. . . It is the most multi-faceted, most complex settlement, I think, against the Canadian government ever. And one of the reasons I think it’s one of the best is because it has all of these features that you wouldn’t get if you went to trial.”

From the start, class members needed recognition of the injustice they suffered. Non-monetary components such as individual apologies, including to the families of purge victims who had passed away, as well as education and memorialization were integral. “We want the lessons to be learned, not to forget,” says Roy. “The Crown was very co-operative on the soft measures.” The final agreement reflects that with class members including Roy, Douglas and Pitre participating or leading the committees putting the agreements into action.

The settlement and approval hearing

The (almost) final legal hurdle was the settlement and approval hearing, held before St-Louis in Ottawa in June. It’s one thing doing cases on behalf of shareholders or for defective products, notes Garth Myers of Koskie Minsky, “but this case really touched sort of the innermost part of people’s heart and dealt with traumas that were so extremely personal and overpowering for class members. . . . And that really came out on settlement approval where we heard people’s stories about the profound effect that the purge had on their lives in terms of psychological health, employment and relationship with their country.”

For the DoJ’s Mohr, the most poignant moment was when “one of the class members concluded her remarks by saying that she felt that with the settlement justice had been done. I think hearing those words, it was fair to say that everyone on our legal team was really affected by that and proud to have been part of the team that negotiated and finalized the settlement.”

There were unexpected moments even for Elliott who’d been working on the case for years. There were the heightened emotions, but “then I heard stories that I did not expect,” such as the colonel who found herself one night sitting on her bed putting bullets into her gun because she was so distraught. Another one started with the usual tale of a soldier being picked up in an undercover K-car and taken to a shed to be interrogated, except this time he was shackled and the SIU officers sexually assaulted him. “I couldn’t believe that this guy would have the courage to talk about that in open court.”

At the end of the day, Elliott thanked St-Louis for allowing all that had taken place. He says she got “verklempt and she said, ‘C’est le moindre de chose,’ it was the least I could do.”

Gail Cohen is a Journalist in Residence at Osgoode Hall Law School.

Click here for details about the LGBT purge class action settlement.

Editor's Note: this article was updated to clarify that CFB Chatham is in New Brunswick.

The ‘fruit machine’

Looking for a scientific way to determine gay from straight in its efforts to weed out potential security risks, the Canadian government in the early 1960s commissioned Frank Robert Wake, a psychologist at Ottawa’s Carleton University, to create the so-called “fruit machine.”

The project, “which involved psychiatrists, psychologists, the RCMP, the DND, and the Department of National Health and Welfare for a period of four years, never did work, and the Defence Research Board eventually cut its funding in 1967,” write Gary Kinsman and Patrizia Gentile in their book The Canadian War on Queers.

In one of the fruit machine’s tests, subjects were seated in a dentist-like chair and shown pictures of sexy pin-ups designed to “arouse desire” while cameras took pictures of their pupils to see if they dilated. Another used a word association test using a list of words with a hidden homosexual meaning. They included: queen, gay, bagpipe, whole, camp, cruise, drag, dike (dyke), fruit, punk, queer, tea room, etc. But the contraption was never able to establish a discernible difference between the biological responses of heterosexuals and LGBT people.

“The project suffered from major technical problems as well as from difficulties in getting an adequate number of research subjects, which included ‘normal’ as well as homosexual men and women,” write Kinsman and Gentile.

The Canadian War Museum has a machine called an Electropsychometer on display that it says was used in the investigations to detect gays in the civil service. Online, it comes up as the “fruit machine,” but Kinsman and Gentile say it’s not Wake’s contraption.

While the fruit machine project was a failure, the RCMP continued to collect dossiers on suspected homosexuals, reportedly having the names of 9,000 people on file at one point. The investigations continued until the 1990s, when Brian Mulroney’s government called for an end to the practice.

— Gail Cohen