An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity)

This bill was last introduced in the 41st Parliament, 2nd Session, which ended in August 2015.

This bill was previously introduced in the 41st Parliament, 1st Session.

Sponsor

Randall Garrison  NDP

Introduced as a private member’s bill. (These don’t often become law.)

Status

Considering committee report (Senate), as of June 9, 2015
(This bill did not become law.)

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Canadian Human Rights Act to include gender identity as a prohibited ground of discrimination.

It also amends the Criminal Code to include gender identity as a distinguishing characteristic protected under section 318 and as an aggravating circumstance to be taken into consideration under section 718.2 at the time of sentencing.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Votes

March 20, 2013 Passed That the Bill be now read a third time and do pass.
March 20, 2013 Passed That Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression), {as amended}, be concurred in at report stage [with a further amendment/with further amendments].
March 20, 2013 Passed That Bill C-279, in Clause 1, be amended by adding after line 21 on page 1 the following: “(2) In this section, “gender identity” means, in respect of an individual, the individual’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex that the individual was assigned at birth.”
March 20, 2013 Passed That Bill C-279 be amended by replacing the long title on page 1 with the following: “An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity)”
June 6, 2012 Passed That the Bill be now read a second time and referred to the Standing Committee on Justice and Human Rights.

The House proceeded to the consideration of Bill C-279, an act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression), as reported (without amendment) from the committee.

Human RightsPetitionsRoutine Proceedings

February 15th, 2013 / 12:05 p.m.
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NDP

Randall Garrison NDP Esquimalt—Juan de Fuca, BC

Mr. Speaker, I rise today to table five petitions in support of the passage by the House of Bill C-279, the gender identity bill. These petitions contain over 600 signatures primarily from the provinces of British Columbia and Quebec, which urge the House to complete the human rights agenda and fill this gap in our human rights legislation.

Increasing Offenders' Accountability for Victims ActGovernment Orders

December 11th, 2012 / 4:10 p.m.
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NDP

Françoise Boivin NDP Gatineau, QC

Mr. Speaker, as I said earlier, my colleague from Brome—Missisquoi brings an absolutely extraordinary background to this subject. He has done a lot of work with young people to try to lower the crime rate. He has made a start on listing many of the solutions.

Just to come back to his introduction, I will say that we do support victims; we support the ombudsman’s recommendations. We would have liked to retain that discretion, if it had been properly used by the courts, which in this case, as a rare exception, perhaps did not use it advisedly. If that is the case—since I do not want to be accused of criticizing the courts—we do not know why. There was a section in the Criminal Code, however, that said that judges had to state why they were not imposing a victim surcharge.

On the question of lowering the crime rate, there is so much to be said. As we know, it is often said that poverty can sometimes lead some people to commit certain crimes, such as some kinds of theft. In the case of certain kinds of abuse, whether it be sexual violence or discrimination, a lot of education still needs to be done.

Last week, we had some trouble and the committee went right off the rails concerning Bill C-279. This was a direct result of a failure to understand the charter and human rights. We saw supposedly educated adults dealing with this problem. We can imagine what happens when some people in society do not have the benefit of all the resources that are available to us. I will say no more, because there are other people who would like to speak.

Increasing Offenders' Accountability for Victims ActGovernment Orders

December 11th, 2012 / 3:40 p.m.
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NDP

Françoise Boivin NDP Gatineau, QC

My colleagues are applauding, and I thank them on behalf of the victims. It has long been said that the New Democratic Party is not against victims, like it or not; it is on the contrary in favour of a fair, logical and intelligent system. However, sometimes that is not entirely the case with respect to the bills introduced by the present government. I would certainly not say that this bill is perfect, since it will occasion enormous disappointment. While we support it in its current form—it is difficult to be against virtue, as my mother would say—we do have some concerns: among other things, as to whether our colleagues opposite really listened to the 14 witnesses who testified before the committee.

I take this opportunity to digress in order to thank those who served on the committee studying this bill. It may not be the case with regard to Bill C-279, which did not end well and came to an extremely disappointing conclusion, but with respect to Bill C-37, solid work was done in committee. Some extremely worthwhile witnesses explained their concerns, and the issues they had experienced.

They also highlighted what the Parliamentary Secretary to the Minister of Justice explained to us just now: that in Canada, victims of crime are unfortunately left to themselves in many cases, in a manner that differs from province to province or from territory to territory. They often spend fortunes trying to obtain reparation, which they will never receive in full, and we are all very much aware of that. They will never obtain full reparation for the plain and simple reason that when you have been the victim of a rape, for example, or a family member has been killed or kidnapped, compensation is an impossibility. Nothing can compensate for a crime of that sort. There is simply no way to achieve it. It may be possible to offer help, but that is all, and that is what a bill like this tries to do.

There is a problem with the victim surcharge which has existed since it was established in the late 1980s. The Criminal Code takes the approach that a sum can be added to the sentence. We have now doubled that sum, but I will not talk about it, because enough people have done so, and others will do so. After all these years, moreover, I agree that it is not the end of the world. However, that has been the problem from the beginning, and that is why we agreed to refer the bill to committee, so that we could actually hear some witnesses on the subject.

My question concerns judicial discretion. My colleague, the member for Edmonton—Strathcona, posed the same question a short time ago. This is somewhat worrying, because the government is constantly withdrawing the discretionary component of judges’ authority. Nevertheless—I shall come back to this—I am reassured, not 100%, but rather 98%, because the Canadian judicial system will make up for Conservative mismanagement. That is more or less how I see it. It is sad to have to rely on the courts, but at the same time, the importance of victims weighed more heavily in the balance for me, and I believe the same is true of the NDP caucus and all members of this House.

However, I am not necessarily proud to see that Canadian judges have imposed a victim surcharge in only a very small percentage of cases since the system was introduced. And yet this system was designed to help victims. If it had been because the accused or the convicted individual was unable to pay, as the Criminal Code provided, that would have been different.

The burden of proof was on the accused, who therefore had to prove to the court that the surcharge was too much and that he was unable to pay it.

We would have had extraordinary statistics on the kind of individual who appears before our courts, but, no, the judges invariably did not impose it, and did so without explanation. That is where the problem started. The provinces expected to receive some revenue from the victim surcharge. That money goes into the provinces' victims of crime compensation funds, except in the three provinces that the Parliamentary Secretary to the Minister of Justice mentioned. One morning the provinces woke up and asked where the money from the victim surcharge was.

I also agree that this should not be the only fund. In 2003, we were told that the cost of victim damages represented approximately $70 billion. That is not peanuts. However, surcharges can only put a few hundreds million dollars in the coffers. We are still a long way off.

Victims must not imagine that this is a panacea. Passing Bill C-37 will not solve all the problems in Canada so the Conservative government, that great champion of Canadian victims, can suddenly wave around its Bill C-37. That is absolutely not enough, particularly since the vast majority of provinces and territories permitted what is called community service programs.

That is the other aspect that reminds me that some people in the correctional system are unable to pay this amount. Those inmates are unable to pay this kind of surcharge; the crime they committed has nothing to do with the argument I want to make.

The people from the Department of Justice told us that the decision in R. v. Wu would continue to be applied. According to that decision by the Supreme Court of Canada, no one may be imprisoned merely on the basis of inability to pay a fine. In that case, the system is okay.

However, once again I would like to shed some light on a problem with community service programs. Some groups that came to testify before the committee during consideration of the bill are convinced that, if this bill is passed, they will suddenly be able to get compensation for their damages. However, that will not happen. In the majority of cases, the offenders will not pay and will have to do community service.

As the parliamentary secretary noted, that suited some people, because they were asked whether they would be disappointed at not receiving money if the person went into a community service program. Community service programs are not just for people who have no money, but also for anyone who can do it that way. Everyone has access to those programs, provided a program is available in the region where the request is made. Some people, not everyone, said that they would prefer to have the money.

Let me take this opportunity to say that, rather than adopt victim surcharge systems such as these ones, perhaps this brilliant law-and-order Conservative government should get with the times and follow the example of various countries on this magnificent planet that are tending toward restorative justice

I see the member who introduced the bill on this matter and an example springs to mind. The case of a person who commits a crime by destroying national monuments is a very sad one. Which is harder for that person, paying $100 out of his pocket or appearing in front of a group of legion members and having to apologize?

Let me take a brief trip back to my childhood. When my parents punished me and sent me to my room, it made little difference to me. It gave me some peace and quiet. However, when my parents told me to go and apologize to the person I had offended, I admit that was the worst punishment for me because being compelled to admit you have made a mistake is, in a way, a form of humiliation.

Countries a little more in tune with the reality of what punishment should be, should head in that direction. They should make someone who has done something realize what he has done so that he does not do it again. The advice I have for the members opposite is to realize that always pulling out a stick and slapping people's hands does not accomplish much and that it is time to start considering other options.

All that to say that, in the context of Bill C-37, yes, it bothers me that judges are no longer granted this discretion. However, let me tell all my colleagues in this House, including my colleague from Saanich—Gulf Islands, that they were not using that discretion properly in any case. By that I mean that we have no idea why they granted an exemption to virtually everyone who appeared in court. It was as though the victim surcharge did not exist. To my mind, that is as intolerable as saying that a form of discretion is being taken away.

However, R. v. Wu has nevertheless had an impact. It is clear from our study in committee that the provinces and territories do not automatically impose a term of imprisonment because an individual does not pay, unless someone does it on purpose. Some will withhold driver's licences or documents from certain provinces. Some colleagues here will tell me that the most disadvantaged people we deal with do not have cars. I agree: they do not have cars, and we therefore cannot withhold their licence. However, they have other possessions that make it possible for us to make arrangements with them. The time is past when people were imprisoned for the fun of it, because they did not pay their fines.

I am repeating this because the message needs to be sent. We know that on Christmas Eve, the members opposite will be walking around saying that they have again saved the lives of X number of victims. I am disappointed to think that we have raised people's hopes and we are making them believe things that are not true. We cannot claim victory for the victims too quickly, because we have to be sure that the money that will be collected in the victim surcharge account is paid into the provincial and territorial accounts so it can be used and distributed to victims’ groups.

I do not have much time left, but still, I would like to take advantage of this opportunity. At the Standing Committee on Justice, we have seen just about everything. We are revamping Canada's criminal justice system, which prompts many different questions and leaves many of them unanswered. We do not have the time to conduct all of our studies in depth. With regard to Bill C-10, we will probably be told by the courts that it was all done much too quickly, in some respects. It is the government that will have to take the fall for this.

Regarding Bill C-37, I am reasonably satisfied just the same, as almost all of the witnesses we wanted to hear from were able to appear. Regarding the witnesses we were unable to hear, it was not because we were prevented from hearing them, but rather because they were not able to travel. I know that the bill is not perfect and that it poses the same problems for my colleagues in the Canadian Bar Association and the Barreau du Québec as it does for us. This is discouraging, because we have the time. There have been no changes for 30 years, and before any adjustments are made, sometimes it is worthwhile to spend a little more time and try to get it right.

I enjoy working with my colleague from Delta—Richmond East, the government's spokesperson on the committee. I enjoy our discussions and this new procedure, even though it was a bit of a flop last week, which I am going to say was because everyone was tired. I hope we all come back to the committee in an excellent mood.

I would like to urge everyone to support this bill for the victims. We in the NDP made promises. We have of course heard the recommendations from the Ombudsman for Victims of Crime. That was one of the planks in our platform during the last election campaign. We will present it better when we are in power in 2015. We will make sure to compensate the victims and fill in all the gaps in what is called justice in Canada.

I would like to end by thanking my NDP colleagues. I thank the deputy justice critic, my colleague from Toronto—Danforth, my colleague from Brome—Missisquoi and my colleague from Beauport—Limoilou for their excellent work on the committee. It was a huge endeavour, and their approach was serious and scrupulous, as required by this justice issue. Mr. Speaker, you know this file, because you were the justice critic for many long years and you mentored many of us here in the House. Frequently, on this issue, we try to rise above partisan politics, because people's lives are at stake and the issue is justice.

I would be remiss if I did not thank the people on the committee, as well as the committee clerk, Jean-François Pagé, and his assistants, and especially the people from the Library of Parliament, who often work in the shadows. We never say it often enough, but they do thorough, non-partisan work at the level of seasoned university researchers. Their work makes it possible for us to meet the various witnesses who come before us in committee and to be knowledgeable about the topic.

I encourage everyone who is interested in victim surcharges and the current programs in the various provinces and territories to read the two documents that were written for the study of Bill C-37.

I would of course like to thank the people on my team—I call them “Team Gatineau”—for all the support they have given me in 2012.

On that note, I would like to wish everyone happy holidays.

December 6th, 2012 / 4:50 p.m.
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Conservative

The Chair Conservative Dave MacKenzie

It was Bill C-279. Bill C-273 and Bill C-279—

December 6th, 2012 / 4:50 p.m.
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NDP

Françoise Boivin NDP Gatineau, QC

Are you talking about Bill C-273 or Bill C-279?

December 6th, 2012 / 4:45 p.m.
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NDP

Françoise Boivin NDP Gatineau, QC

You are always nice.

Just to make sure that everybody understands me, I will repeat it in English.

The motion was presented. It was the same motion we adopted without any additions as a committee, and we worked in this committee in a very, I'd say, collaborative way up until this point. We agreed because we thought we didn't want them sent back after all the work we had not yet done, just as is, to the House. It's the same principle.

Maybe everybody has to breathe in a bit. We might finish if we stop all of this. Maybe the light will come and hit people or whatever, but let's move on.

To ask for a reason when there was not even one asked when.... I would like to know why it is so different on Bill C-279, when we even voted yesterday unanimously in the House of Commons on Bill C-273 and we agreed to have the 30 days.

At some point in time, let's move.

December 6th, 2012 / 4:25 p.m.
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NDP

Randall Garrison NDP Esquimalt—Juan de Fuca, BC

Thank you, Mr. Chair. I'll be withdrawing NDP-3.

Instead, I'd like to move a motion:

That, pursuant to Standing Order 97.1(1), the committee request an extension of 30 sitting days for the consideration of Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression) to allow its members to hold deliberations beyond the present deadline of Monday, December 10, 2012, and that the chair present this report to the House.

December 6th, 2012 / 3:35 p.m.
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Conservative

Brent Rathgeber Conservative Edmonton—St. Albert, AB

Thank you, Mr. Chair.

The members will note that I have proposed an alternative definition of gender identity, which is found in the package of amendments as CPC-8 on page 11. I was caught somewhat off guard with the last vote. Although I did vote against NDP-1, that precluded any debate on close to half a dozen CPC amendments. I understand why that is, but I'm caught a little off guard and I don't want the same thing to happen with respect to any proposed amendments in Bill C-279, clause 1, line 21.

Procedurally I suppose we have to debate both proposed definitions concurrently before we can vote on either of them. If we vote positively on NDP-2, I presume you're going to rule CPC-8 non-votable. I don't know if you can give me a ruling on that in advance.

December 6th, 2012 / 3:30 p.m.
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Conservative

The Chair Conservative Dave MacKenzie

I call the meeting to order.

This is meeting number 55 of the Standing Committee on Justice and Human Rights, pursuant to the order of reference of Wednesday, June 6, 2012, for clause-by-clause consideration of Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression).

When we adjourned last, we were in clause-by-clause study, and amendment NDP-1 had been presented by Mr. Garrison. I believe we were at Mr. Garrison on his clause.

Before we begin, I should tell you that we have two representatives from the ministry here, Ms. Stone and Mr. Zaluski, to help with any of the legal issues.

Indian Act Amendment and Replacement ActPrivate Members' Business

November 28th, 2012 / 7:20 p.m.
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Conservative

Rod Bruinooge Conservative Winnipeg South, MB

Mr. Speaker, it is truly an honour to rise and speak about a subject that is dear to my heart, which is the replacement and eventual repeal of the Indian Act.

I have to commend my colleague for Desnethé—Missinippi—Churchill River for the courage he has shown in taking on this important issue. This is an individual who, as a first nation man, has conducted his whole life living under the Indian Act. He is someone who has been able to interact with his fellow first nation brothers and sisters for his entire life. This is consultation. It is a degree of consultation that no one in the House currently has, in my opinion, in their past. He has been meeting with people across Canada on this important subject. However, I do know of some recent bills that have not been consulted on.

The member for Edmonton—Strathcona has referred to article 18 of the UN Declaration on the Rights of Indigenous Peoples. She is quite right, there is an obligation to consult with indigenous peoples. I wholly support that and I thank the member for bringing it up. However, there are cases where it has not happened.

Yesterday, I was at the justice committee. Currently, Bill C-279 is before the committee and we had witnesses from the Canadian Human Rights Commission. I asked the commission whether that bill had an impact on first nation people. Are first nation communities impacted by this act and does it have an impact on the lives of first nation people? Their answer was yes, that bill absolutely does affect first nation people.

My question then became whether there was consultation on the bill? In fact, there was not. The member for Esquimalt—Juan de Fuca did not indicate that there was any consultation. I spoke with the Assembly of First Nations, which the member for Edmonton—Strathcona referred to as an important entity with which we discuss these issues. They are the bona fide organization of first nation people. However, they were not contacted on that bill. Also, during those deliberations, the member for Gatineau, in a cavalier way, just set aside that there was any obligation to consult with first nation people on that bill.

Therefore, I take offence to what the member is suggesting. The member for Desnethé—Missinippi—Churchill River is truly a hero to me and others in the first nation community for the work that he is doing. To suggest that we are not reaching out to our aboriginal friends is, in my opinion, not reality. It is something that we are endeavouring to do.

I would ask the member to talk to some of her colleagues about some of the bills that they are proposing and the impact they have on first nation people. She shakes her head much like the member for Gatineau, who cavalierly set it aside that there was any obligation to consult with first nation people on a bill that would impact their communities.

As I said, this is an important day. The bill is timely and necessary. With each passing day, the Indian Act is revealed to be unfit for the times in which we live. When it was first enacted in 1876, it disenfranchised first nation people and it still disenfranchises everyone who lives under it today.

Just recently, we have seen a clear example of why the Indian Act must go in my home province. In fact, in Manitoba in Buffalo Point First Nation there are residents, women and children, living in that community who risk being put out on the street because of political disagreements with their chief. Because of these protests, they could have their homes taken away from them and be disenfranchised through the powers granted under the Indian Act.

Imagine if this were to happen off reserve. Imagine if someone disagreed with their city councillor and all of a sudden were evicted from their home and put out on the street. There would be mass outrage and nobody would stand for that. This is the exact point I would like to make about this community and unfortunately sometimes other communities as well.

Disenfranchisement is occurring. It violates not only any sense of justice or decency but all democratic principles, which is one reason and just one reason why the Indian Act needs to be replaced. It is an archaic, oppressive and unjust legislation. It denies aboriginal Canadians the rights they deserve. It denies individual rights. It denies matrimonial and property rights, leaving women in danger of losing everything due to disputes outside of their control.

Many people may not be aware, but the Indian Act denies first nations people the right to control their own wills and estates. The Minister of Aboriginal Affairs and Northern Development has the power to void the will of a first nations person if he or she so chooses. As my colleague has said, Bill C-428 would repeal the sections of the Indian Act that gives this paternalistic power to the minister. It would be a step toward true freedom and independence for first nations people.

Bill C-428 would also return the authority over the creation of bylaws on reserves where it belongs, with the leadership of that reserve. As it currently stands, the Minister of Aboriginal Affairs and Northern Development must sign off on bylaws made by leadership on reserves. First nations people can govern themselves. They do not need this pre-Confederation prison to remain. As with the wills and estates rules, this is a further denial of independence and decision making for first nations people.

The Indian Act has no place in the 20th century or the 21st century. It is time to replace this act.

The member for Kenora, who was here earlier, has done great work as the parliamentary secretary to aboriginal affairs and has been a great advocate for the Métis people in my community and first nations Inuit people as well. I think back to previous members from other parties in that riding who have also done great work. A former member of the Liberal Party, Mr. Robert Nault, who was the then minister of Indian Affairs, brought forward some very innovative solutions, namely the First Nations Governance Act, which I thought was a step in the right direction. Many first nations did not like that approach, but many did.

One of the aspects of that bill on which everyone agreed was the Indian Act needed to be repealed. The starting point that everyone in the House agrees on is the Indian Act must be replaced.

I have had the opportunity to work with first nations people from across Canada. I have had the opportunity to work with first nations chiefs, councillors and regular community members. There is no question that everyone believes it is time for this act to be replaced. I believe the Indian Act is nothing less than a prison that shackles aboriginal people in our country and prevents them from achieving economic actualization.

We need to proceed with the initiatives that the member has proposed before the House. He started a debate that I am glad we are having. There are opinions from all sides on this matter, but what we can all agree on is that the Indian Act must be replaced. I would hope that at some point in the near future we can get to that moment where first nations people will be enfranchised and have the autonomy they deserve.

November 27th, 2012 / 4:10 p.m.
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NDP

Françoise Boivin NDP Gatineau, QC

The purpose of Bill C-279 is to:

extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives

It's to add an expression. At some point we had “l'expression sexuelle”. With the amendments, we'll be talking about gender and identity. We understand each other. That's the purpose of the bill.

You understood this?

November 27th, 2012 / 3:40 p.m.
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Diane Watts Researcher, REAL Women of Canada

Yes, thank you, Mr. Chairman.

Thank you for inviting us before this committee.

REAL Women of Canada was federally incorporated in 1983 and is a non-denominational, non-partisan organization of women from all walks of life. We respond to the evidence that the family, consisting of mother, father, and children, is the foundation of society.

Bill C-279 is not just a simple bill merely extending human rights protection to another category of individuals. It has far-reaching ramifications for Canadian society, and based on credible medical studies, the consequences of the bill will be harmful to transgendered individuals themselves.

It may be politically correct, but it will not be helpful to persons with gender dysphoria, that is, gender dissatisfaction. The United Nations rejected the terms “gender expression” and “gender identity”. The Geneva-based United Nations High Commissioner for Human Rights' controversial recommendation that gender identity and gender expression be protected rights was overwhelmingly rejected by the United Nations Human Rights Council in March 2012. Similarly, the non-binding UN declaration on sexual orientation and gender identity was never voted on by the UN General Assembly. In fact, it was directly contradicted by another UN declaration presented by other UN member states.

The United Nations has never accepted gender identity as a legitimate human right, although the term was included in a recent draft resolution condemning extrajudicial executions on the basis of the principles of right to life and the fight against impunity. Even the one country that voted against this recommendation was in favour of the general prohibition of extrajudicial executions, and the party states that did not vote had difficulty with other sections of the resolution presented.

I will describe the scientific evidence on morbidity and morality related to transsexual persons. This concerns us. A study was conducted in Sweden by various departments of Karolinska Institutet in Stockholm of post-operative transsexual persons, which was unique in that it included the results of a nationwide longitudinal study of 30 years with minimal loss of follow-up. Published in 2011, this Swedish study found substantially higher rates of overall mortality, death from cardiovascular disease and suicide attempts, and psychiatric hospitalizations in sex-reassigned transsexual individuals compared to a healthy control population.

Even though surgery and hormonal therapy may alleviate gender dysphoria, they are apparently not sufficient to remedy the higher rates of morbidity, diseases and disorders, and mortality found among transsexual persons, so the furthering of a declaration of acceptance of this type of medical transformation as a result of Bill C-279, we believe, would not be helpful to transsexual and transgendered individuals.

The Yogyakarta Principles, the source of a gender identity definition, are vague. They can be interpreted to interfere with parental rights to counsel that gender-confused children be helped to continue in the gender consistent with their genetic make-up. By interfering with parental authority, the Yogyakarta Principles contradict the provisions of the United Nations Universal Declaration of Human Rights, which declare that “the family is the natural and fundamental group unit of society and is entitled to protection by society and the State”—article 16(3).

On March 31, 2010, the American College of Pediatricians distributed a letter to school officials citing various research studies, which affirmed:

Even children with Gender Identity Disorder (when a child desires to be the opposite sex) will typically lose this desire by puberty, if the behaviour is not reinforced. ... ...that when parents or others allow or encourage a child to behave and be treated as the opposite sex, the confusion is reinforced and the child is conditioned for a life of unnecessary pain and suffering.

The Yogyakarta Principles would object to parents discouraging their child to identify in this way, and they would discourage counselling to prevent young people from identifying in this manner.

We're concerned about the troubling effects of Bill C-279 if it's passed into law: male access to women's public washrooms and health clubs. There's a situation in Washington where a man who thinks he's a female has been allowed entrance into a health club where children change. A women's pool is there, apparently, and there are young children and adolescents. This presents a problem, and we believe this could present a problem in the future.

Since the terms “gender identity” and “gender expression” are undefined, they apply to anyone who thinks he or she is another sex, whether or not he/she has had hormonal treatment or surgery. In our appendix, we mention a case, Sheridan v. Sanctuary Investments, wherein a male thought he/she was a female, was prevented from entering the women's washroom, and went to the human rights commission. The discrimination was recognized and the nightclub was fined $2,000.

There can be a tremendous permutation of these types of situations, and we believe these are socially disruptive. This allows such individuals to use the washrooms of the opposite sex with impunity. This places females and children at a strong disadvantage and at possible risk, since child predators will be able to use cross-dressing as a pretense to gain access to children in public washrooms.

Second, taxpayers would be required to cover extensive surgery, hormone treatments, and cosmetic follow-up for a lifetime. If transsexualism and transgenderism are protected rights in federal jurisdictions, such as the federal public service, and federally regulated industries, such as banks and airlines, these industries will be required to pay the medical premiums on behalf of the employees to cover extensive surgery and hormone treatment and to accept these employees after such hormone treatment. Assimilating them back into the workplace will inevitably create difficulties.

In Canadian penitentiaries, this issue will also create problems. If Bill C-279 is passed into law, prison officials, at taxpayers' expense, will be required to provide treatment for those inmates claiming they were born the wrong gender. This will lead to difficulties for the transgendered themselves, creating exposure to risks for him or her. This already has occurred in Massachusetts in 2012, when a prisoner given a life sentence for the murder of his wife in 1980 was approved by the court to undergo sex reassignment surgery. The individual now resides in an all-male prison and will face security risks daily as a target of sexual assault by other inmates. Alternatively, if the inmate is transferred to an all-female prison, he/she will also be a target for assault and harassment by other inmates. We're concerned about the consequences of this.

Our conclusion is that transsexual and transgendered individuals must have the same rights as all other Canadians, but should not be given special rights. We're very much opposed to any violence or undue discrimination and assaults. This is part of our Criminal Code. We're very much in favour of the defence of anyone to lead a free life in Canada. Persons with gender identity disorders should receive compassionate counselling rather than be encouraged in their dissatisfaction with their genetically ingrained gender. The DNA does not change after these treatments.

REAL Women of Canada therefore urgently request that this bill not be passed into law.

Thank you, Mr. Chair.

November 27th, 2012 / 3:35 p.m.
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Susheel Gupta Acting Chairperson and Chief Executive Officer, Canadian Human Rights Tribunal

I do. Thank you, Mr. Chair.

Good afternoon, and thank you very much, Mr. Chair and honourable members, for the invitation to appear before your committee today as you deliberate Bill C-279.

I thought I would begin by taking a few moments to discuss the mandate of the Canadian Human Rights Tribunal, as it will inform the scope of my presentation. I will then provide an overview of the legal principles that govern us when dealing with discrimination complaints, and in closing, I will provide the committee with some information on cases decided by the tribunal that raised issues of gender identity or gender expression.

The Canadian Human Rights Tribunal is one of the two administrative agencies created by the Canadian Human Rights Act, or the CHRA. The other one is the Canadian Human Rights Commission. While the commission's mandate is multi-faceted and includes a wide range of powers, duties, and functions, the statute has only assigned one main function to the tribunal, and that is the adjudication of complaints.

In the context of the CHRA, this adjudication process is referred to as an inquiry. An individual who believes that discrimination has occurred, within the meaning of the CHRA, can file a complaint with the commission. If the commission believes that an inquiry is warranted, it triggers the adjudicative process by making a request of the tribunal to inquire into the complaint.

The inquiry mandated under the CHRA has been described as quasi-judicial, which essentially means court-like. Hence, the tribunal has many of the powers and attributes of a court. It is empowered to find facts, to interpret and apply the law to those facts before it, and to award appropriate remedies.

The tribunal hearings have much the same structure as a formal trial before a court. The parties before the tribunal lead evidence, call and cross-examine witnesses, and make submissions on how the law should be applied to the facts.

This Parliament only assigned to the tribunal the role of adjudication. The tribunal cannot be involved in crafting policy. It has no regulatory role vis-à-vis discriminatory practices in the federal workplace, nor does it have a public advocacy role. These roles are assigned to other bodies.

A number of consequences flow from the court-like structure and focused mandate of the tribunal. First, its members are required to maintain a high degree of independence from the executive branch of government, in particular from our portfolio department, the Department of Justice.

Furthermore, to conserve their impartiality, it is important for the adjudicator of our tribunal to adopt and retain a position of neutrality in respect of issues that can and will be debated in cases they may be called upon to decide.

In the context of your current study, these principles prevent tribunal members, including me, from issuing opinions on many of the matters that will be discussed as you review Bill C-279, which is not to say that tribunal members never make findings on issues of gender identity or gender expression. On the contrary, they have been required to do so previously and will likely be called upon to do so in the future. However, they must make these findings in the context of their adjudicative mandate, based on the submissions of the parties in a particular case, along with the evidence led and the applicable legal principles.

This leads me to my next topic. What are the legal principles that the tribunal applies to discrimination complaints? How do we define discrimination?

The answer to these questions originates in our enabling legislation, the CHRA. A useful starting point is section 4, which succinctly sets out the basic liability scheme. Essentially, in this statute Parliament has identified a number of discriminatory practices. Anyone found by the tribunal to be engaging in or to have engaged in a discriminatory practice may be made the subject of a remedial order.

What does the CHRA consider a discriminatory practice?

There are a number of acts and courses of conduct so designated, including denying access to services facilities or accommodation; refusing to employ or continue to employ an individual; establishing a policy or practice that deprives an individual or class of individuals of employment opportunities; and harassment and adverse differentiation, both in matters related to employment as well as in the provision of services, facilities, or accommodation.

However, almost every discriminatory practice in the CHRA, by definition, must be based on a prohibited ground of discrimination. Here is where we arrive at some of the issues raised by Bill C-279.

The CHRA designates 11 prohibited grounds of discrimination, namely, race, national ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability, or conviction for an offence for which a pardon has been granted or in respect of which a record of suspension has been ordered.

As has been alluded to in the House of Commons debates, to the extent that the tribunal has dealt with transgender issues thus far, it has done so within this statutory framework of prohibited grounds, in particular, under the grounds of sex and disability. However, the tribunal has never had to decide a case where the parties put forward sharply opposed arguments on the question of whether or not gender identity or gender expression is protected by the act.

If you will allow me to elaborate, the tribunal has had four cases dealing with gender identity or gender expression that it has been required to adjudicate.

In the first case, the tribunal has found, on the point that's most relevant to this current discussion, and I quote:

There is no dispute that discrimination on the basis of Transsexualism constitutes sex discrimination as well as discrimination on the basis of a disability.

There have been three subsequent cases that raise gender identity and gender expression issues. In all of them, the tribunal found that discrimination on these grounds fell within the prohibited grounds protected by the CHRA. However, in each of the cases, the key issue relevant to this committee's deliberation does not appear to be a point of contention between the parties.

As you can see, we haven't dealt with a large number of these kinds of cases. That said, in considering the number of cases heard by the tribunal on the given subject matter, there are several important considerations that should be taken into account.

First, not all federal discrimination matters become complaints filed with the commission. Other agencies and boards have concurrent jurisdiction over CHRA matters.

Second, of the discrimination complaints filed with the commission, only a small subset were referred to the tribunal for inquiry. As my friends from the commission have already indicated, some of those complaints end up being resolved through ADR practices or mediation under their process.

Third, of those complaints that are referred to the tribunal, a significant number are resolved by tribunal members mediating the complaints to facilitate settlements by the parties, thus never resulting in a hearing or an inquiry ever being conducted.

In closing, I would simply like to say that I hope this presentation has been of assistance to the committee.

Thank you.

November 27th, 2012 / 3:30 p.m.
See context

Conservative

The Chair Conservative Dave MacKenzie

Seeing that the clock is at 3:30, this is meeting number 53 of the Standing Committee on Justice and Human Rights. Pursuant to the order of reference of Wednesday, June 6, 2012, we are studying Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression).

I would like to thank the panel for coming back. The last meeting was a bit of a problem, in that we never got started, although everyone was here. Our apologies to you for the inconvenience. Sometimes those things happen here. There's really no real explaining, other than that the bells were ringing and we had to leave for votes.

Today we have a panel with the Canadian Human Rights Commission, the Canadian Human Rights Tribunal, and REAL Women of Canada.

If you have an opening address, we'll begin with the Canadian Human Rights Commission.