Chris Bentley has a punishing workload, which includes defending a fistful of files related to sexuality, gender and civil liberties. It's a dossier that strikes at the very heart of gay life. So what's he thinking?
The attorney general’s hands slice through the air emphatically.
Gradually, he drops his left hand and his right forms a hook-like pointing finger. He jabs the air.
Despite his body language, Chris Bentley’s voice is calm and even, punctuating the brief monologue with beats of silence. Clear, audible, precise.
Unfortunately, the material is a little beneath him.
He’s at Queen’s Park, responding to a question put to him by the NDP about why his government has not added “gender identity” to Ontario’s human rights provisions.
His talking points are canned. He doesn’t deviate.
Two of his Liberal colleagues — Glen Murray and Eric Hoskins, both from Toronto — slip out of the house and into the visitors’ gallery, where a number of trans women are watching Bentley’s performance. Their message: we’re working on Bentley and other Liberal holdouts.
But a week later, in a small, sunlit anteroom off the main chamber, Bentley’s story hasn’t changed at all: trans people are protected in the human rights code under “sex,” and transphobia is not tolerated in Ontario.
So, then, is he opposed to adding “gender identity” to the code?
Bentley: We’ve been pretty clear. And I think in my answers to your questions today I’ve been pretty clear about where I stand, where the government stands and what the law is, and they’re all the same.
Xtra: Well, you’ve been pretty clear, except that you haven’t said whether you oppose the inclusion of gender identity in the human rights code.
Bentley: Well, the protections exist.
Xtra: So you are opposed?
Bentley: But the protections exist.
Just around the corner from Queen’s Park, in one of the University of Toronto’s historical stone-faced buildings, students are preparing for exams. The law library is packed with women with flawless skin and Movember-inspired, mustached young men.
Here, Bentley’s Criminal Practice Manual
is required reading. It’s kept behind a reference desk and can be signed out for only two hours at a time. It’s the only public copy in the city.
Buried in the four-inch-thick guide — for prosecutors, defence attorneys, judges and law students — are some choice words.
A long section gives instructions for “Challenging a Warrantless Search,” and another explains the limits of the police’s power to detain people, including the steps required for a defendant to prove a detention was unlawful or arbitrary.
It’s particularly salient in the context of the G20. After all, the office of the attorney general is responsible for prosecutions, and while Bentley’s ministry has dropped hundreds of G20-related charges, it is doggedly pursuing others.
Moreover, there’s a class action lawsuit underway, and lawyers could very well use Bentley’s own book against the province, the police and the Integrated Security Unit.
Bentley won’t say what, if any, role he had in authorizing the G20 charges or in having them dropped.
But on the face of it, Bentley’s descriptions in his book acknowledge that the law forbids police from conducting random bag checks — or from detaining hundreds of people in the stinging rain for four hours with no explanation and no chance to leave.
So how would he apply his own writings to the police’s behaviour this summer?
“Well, I wouldn’t, at least not outside of court. The book is a practice manual,” he says dryly. “It’s not intended as a commentary on what the law should be; it’s more of an outline of what the law is and how to apply it.”
Each Thursday, after Bentley finishes his week at Queen’s Park, he climbs into the backseat of a car and snakes his way down the 401 to his riding of London West. It’s a mixed-income swath of southern Ontario where voters are just as likely to be swayed by a Conservative candidate as a Liberal one.
In those kinds of ridings, the Ontario Liberals aren’t faring very well. If an election were held tomorrow, the Liberals would likely be swept out of power, and a mean-spirited, Mike Harris-trained, conservative populist would be premier.
It explains a lot.
From interviews with Bentley’s Liberal colleagues, opposition MPPs, activists and current and former staff, a picture begins to emerge. Progressives like him, even though on virtually every file we discuss — trans rights, sex work, HIV prosecutions, the G20 — his policy positions could have been peeled from a Conservative handbook.
The threat posed by PC Leader Tim Hudak is palpable. Hudak and his party are consistently polling ahead of Premier Dalton McGuinty’s Liberals, and while Bentley’s seat is not in jeopardy — unless things go from bad to worse — the mood in Southern Ontario has undoubtedly changed.
Open support for trans rights could be the kind of man-in-a-dress moment Hudak is looking for. Federally, Hudak’s socially conservative brethren are mobilizing around Bill Siksay’s private member’s trans rights bill, arguing that it will give “perverts” the chance to accost women in public washrooms. Among Siksay’s chief tormenters is evangelical Christian lobbyist Charles McVety.
Bentley shrugs off the suggestion that his positions are the result of political calculus, but McVety’s lobbying has worked on the Ontario Liberals before. Just six months ago, after Ontario introduced a revised sexual education curriculum, McVety took aim and fired a direct hit with the kind of “they want to teach anal sex to five-year-olds” distortion he’s known for.
McGuinty caved in less than a week.
“I’ll leave the question, the premise, to somebody else to deal with,” Bentley says of McVety. “I don’t answer to the individual that you speak to. I answer to the people of the province of Ontario.”
If there’s a storm brewing over a gay issue in Ontario, it’s the criminalization of HIV. Ontario accounts for nearly half of the country’s criminal charges related to poz folks not disclosing their status to partners before having sex, according to research conducted by York professor Eric Mykhalovskiy.
Over the last two decades, the severity of charges has escalated, with simple assault charges growing to sexual assault, aggravated sexual assault and eventually murder.
It’s the kind of file that’s likely to trouble Bentley. After all, his Criminal Practice Manual
is procedural, analytical and practical. It’s obsessed with breaking down case law into lists, with turning the heaving, variable mass of the law into the equivalent of a lasagna recipe.
HIV prosecutions are the opposite, full of legal ambiguity that has never been satisfactorily settled. Can poz folks be charged for not disclosing their status before having a low-risk encounter? What does that mean? A blowjob? Anal sex with a condom? What about when the risk of transmission is low because of an undetectable viral load?
In September, those who are lobbying the government on this file launched a new campaign — directed squarely at Bentley — asking for the attorney general to create prosecutorial guidelines, to provide the kind of legal clarity that would explain the obligations of partners where one is HIV-positive.
“We really take our direction from the case law and the Criminal Code as it exists. If there is new information that we can gather or glean from members of the community, or others out there, about information that we should have, we have an ongoing process to get that,” says Bentley.
Bentley believes the law is already clear, but he’s open to new information changing his mind. Given that the campaign for prosecutorial guidelines is still in its infancy (for years, poz folks and HIV workers have protested against any intrusion of the criminal law into what they see as a public health matter), it could be an encouraging sign.
On files related to sexuality and gender, progress from this government has largely come at the end of a minister’s time managing that portfolio. Former health minister George Smitherman announced the relisting of sex reassignment surgery in May 2008; he was shuffled off the portfolio in June. Kathleen Wynne pushed through comprehensive changes to health and sexuality curriculum in her last hours as minister of education.
But Bentley is not likely to be shuffled from the attorney general portfolio until after the provincial election in the fall of 2011. And when the next cabinet forms, he will likely be handed a different portfolio — or he’ll be sitting in the opposition benches.
The lead-up to an election is a risk-averse time for an already risk-averse government, meaning Bentley’s unlikely to have the luxury of ramming through controversial policy changes.
Add to that the fact that Bentley has already launched his legacy — a legal support centre for people dealing with human rights complaints. It’s something that will be useful for the members of our communities who file such complaints — although the support is admittedly roundabout.
For now, it appears that Bentley will continue to reiterate his talking points — that law is clear on HIV prosecutions, that the chief prosecutor is handling the G20 cases, that trans people are already protected by Ontario human rights legislation.
At the same time he, and all Ontarians, will count down the days to the next provincial election.
Read the complete text of the interview.