Bill C-16 (Historical)

An Act to amend the Canadian Human Rights Act and the Criminal Code

This enactment amends the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination.
The enactment also amends the Criminal Code to extend the protection against hate propaganda set out in that Act to any section of the public that is distinguished by gender identity or expression and to clearly set out that evidence that an offence was motivated by bias, prejudice or hate based on gender identity or expression constitutes an aggravating circumstance that a court must take into consideration when it imposes a sentence.

Canadian Human Rights Act

[Marjolaine Boutin-Sweet, NDP, Hochelaga, QC]

Madam Speaker, I think the fact that the leader of the Conservative Party, of all people, is planning to support the bill is a sign that people's thinking changes for the better over time. However, sometimes our way of thinking needs a little nudge in the right direction. We have to amend our laws to reflect shifts in thinking because laws are subject to interpretation. We have to protect people by making sure there is less room for interpretation, less subjectivity in our laws.

We also have to help the general population understand trans people's experience and the day-to-day hardships they face. As I said earlier, 90% of trans students have to deal with problems on a daily or weekly basis. That is a lot. We have to make sure people know what kind of problems trans people face.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Madam Speaker, I definitely support the need to eliminate discrimination against transgendered people. I also share the member's frustration with the Liberal government, and its tendency to talk a good story and then not take any actions.

I wonder if the member could say what actions she would like to see once Bill C-16 is enacted to make sure that it is most effective in eliminating this discrimination.

[Marjolaine Boutin-Sweet, NDP, Hochelaga, QC]

Madam Speaker, there are so many possibilities. Earlier, we talked about the poverty rate among trans people. It can be very difficult for a man who wants to become a woman or a woman who wants to become a man to pay for that kind of surgery. The government could help people cover the cost of medical services. That would make a big difference. Costs range from $7,000 to $20,000 and probably much more. How can anyone earning less than $30,000 per year afford to spend $20,000 on surgery?

That is one way the Canadian government can walk the talk, as my leader likes to say. The government has to make sure trans people have rights, but it also has to enable them to live their lives more easily.

[Brigitte Sansoucy, NDP, Saint-Hyacinthe—Bagot, QC]

Madam Speaker, I congratulate my colleague for the work he has done on this issue over the past few years. I find it deplorable that we must vote once again on this issue. However, as a new MP, I am honoured to vote in favour of the bill.

In his speech, my colleague from Hochelaga mentioned that the Liberal government could act quickly on this file. As I am a new MP, I would like her to clarify for me what a government could do to “act quickly” on such a bill.

[Marjolaine Boutin-Sweet, NDP, Hochelaga, QC]

Madam Speaker, we could send the bill to committee right away, where it could be studied very quickly. One day would probably suffice. We already have many studies and evidence from many witnesses. We do not need more. We know the facts.

Therefore, we should send the bill to committee, debate it here at third reading, vote quickly, send it to the Senate, and convince our Liberal and Conservative senators to do the same thing.

[Patty Hajdu, Liberal, Minister of Status of Women]

Madam Speaker, I will be splitting my time with the member for Edmonton Centre.

I am pleased to participate in the debate on Bill C-16, an act to amend the Canadian Human Rights Act and the Criminal Code.

The bill is designed to support and facilitate the inclusion of transgender and other gender diverse people in Canadian society. Diversity and inclusion are values that are important to us as Canadians, yet we have heard repeatedly from trans and gender diverse Canadians that they still do not feel safe or fully included in Canadian society. Social science research also shows that many transgender and other gender diverse Canadians are not yet able to fully participate in our society. They face negative stereotypes, harassment, discrimination, and sometimes violence.

We know that discrimination and violence have significant impacts on social participation and an individual's sense of safety in the public sphere. Research conducted by the Trans Pulse survey found that approximately two-thirds of trans people in Ontario had avoided public spaces or situations because they feared being harassed or being perceived or outed as trans. The survey also indicated that the majority of trans Ontarians had avoided public washrooms because of these fears. Trans Ontarians also avoided travelling abroad, going to the gym, shopping at the mall, and eating out in restaurants, all commonplace everyday activities and pleasures that many of us are able to enjoy comfortably. However, for many trans people, these activities can be fearful because of their previous experiences of harassment and discrimination.

The research also shows that transgender or other gender diverse people face significant obstacles in obtaining employment. This is not due to a lack of qualifications. The Trans Pulse survey results I mentioned earlier showed that 44% have a post-secondary degree, but trans people are significantly underemployed, with many having been fired or turned down for a job because they are trans. Others felt that they had to turn down a job that they were offered because of a lack of a trans-positive or safe work environment.

It is clear that too many transgender and gender diverse people are being deprived of the opportunity to contribute to and flourish in our society. This is important not just for trans people but for us all. When a person loses an opportunity to work or is too fearful to go out shopping or eat in a restaurant, we all lose a potential contribution to the workplace, to the economy, and to our collective social life. Discrimination is a matter of concern to us all. It both undermines the freedom of those individuals to make the life they are able and wish to have, and it deprives us all of their participation in our society.

The bill would be just the beginning but is an important beginning. It is another step toward greater acceptance and inclusion. By adding the grounds of gender identity and gender expression to the prohibited grounds of discrimination listed in sections 2 and 3 of the Canadian Human Rights Act, we would protect the freedom to live openly.

The amendments proposed by the bill would make it clear that discrimination in employment against trans people is unacceptable and a violation of the Canadian Human Rights Act. An employer cannot refuse to hire or promote a qualified individual simply because that person is trans or gender diverse. These amendments will make it clear that federally regulated employers and service providers will need to provide accommodation for transgender and other gender diverse individuals when required and treat them in a manner that corresponds with their lived gender. Explicit recognition will also serve to promote understanding and awareness about trans people and their rights.

I now want to address one of the amendments that the bill proposes to make to the Criminal Code, which is to expand the hate propaganda offences in the Criminal Code to protect those who are targeted because of their gender identity or gender expression. To put this proposal in context, it is useful to give some of the history of these offences.

There are three crimes of hate propaganda. They were created in 1970. These are now found in sections 318 and 319 of the Criminal Code. These offences are advocating or promoting genocide against an identifiable group, inciting hatred against an identifiable group in a public place that is likely to lead to a breach of the peace, and willfully promoting hatred, other than in private conversation, against an identifiable group.

As we can see, a key element for all of these offences is the term “identifiable group”. When the hate propaganda offences were first created and for many years afterward, the definition of identifiable group was very limited in scope. It was defined in the Criminal Code to mean a section of the public that was identifiable on the basis of race, colour, religion, and ethnic origin.

In 2001, the then member of Parliament for Burnaby—Douglas introduced in the House Bill C-415, later reinstated as Bill C-250, and entitled “An Act to amend the Criminal Code (hate propaganda)”. This bill proposed to add sexual orientation to the definition of identifiable group in the Criminal Code. The member quoted in support of his bill a statement made by the Supreme Court of Canada in the 1990 case of R. v. Keegstra, which upheld the constitutionality of the hate propaganda offence of wilfully promoting hatred against an identifiable group. The Supreme Court said:

The harms caused by [hate propaganda] run directly counter to the values central to a free and democratic society, and in restricting the promotion of hatred Parliament is therefore seeking to bolster the notion of mutual respect necessary in a nation which venerates the equality of all persons.

In 2004, Bill C-250 became law. As a result, the definition of identifiable group was expanded to include sexual orientation as an identifiable group for the crimes of hate propaganda.

I will now fast-track to 2014, when Bill C-13, the Protecting Canadians from Online Crime Act, received royal assent. One section of that bill amended the definition of identifiable group for the hate propaganda offences by adding more groups to that definition, specifically the criteria of national origin, sex, age, and mental or physical disability. As we have seen, the definition of identifiable group has been expanded considerably since 1970. This expansion reflects a commitment to equality and the desire of Canadians to protect more and more vulnerable groups in our society from the serious harms to human dignity that flow from the type of vicious hate speech prohibited by these Criminal Code provisions.

Bill C-16 proposes to add two new terms to the definition of identifiable group: gender identity and gender expression. Such an expansion is eminently justifiable on two grounds.

First, this expansion would extend to those in our society who are identifiable on the basis of gender identity and gender expression the same protections already afforded to other groups in Canadian society, such as those identifiable on the basis of their sex and sexual orientation. This would help to promote equality before the law and throughout Canadian society for trans people.

Second, this expansion would explicitly recognize that those who are identifiable on the basis of their gender identity and gender expression are in need of protection by the criminal law. For example, the Trans Pulse survey I mentioned earlier indicates that trans people are the targets of specifically directed violence; 20% had been physically or sexually assaulted for being trans, and another 34% had been verbally threatened or harassed but not assaulted.

Here in Canada, we criminalize hate propaganda, in part because it undermines the dignity and respect of the targeted group. It undermines their sense of belonging and inclusion in society. Adding gender identity and gender expression to the list would send a clear message that hate propaganda against trans and other gender diverse individuals is not acceptable.

I encourage all members of the House to support this bill.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Madam Speaker, I thank the hon. minister for her very important work on the elimination of violence against women and against transgendered people. In our status of women committee, we have heard a lot of testimony about how, even where adequate laws exist, they do not eliminate violence alone. What additional steps does the member believe the government needs to take to eliminate violence against transgendered people?

[Patty Hajdu, Liberal, Thunder Bay—Superior North, ON]

Madam Speaker, it is an excellent question. I think that legislation is the leadership we need to demonstrate to our country that these rights are inalienable and that people have the right to live safely in their communities.

However, the hon. member makes a very good point. Leadership is the first step. The next step is to bring Canadians along with us to create a culture where we understand that diversity is our strength, that we are stronger because of our diversity not in spite of it, and that when people have an opportunity to thrive and live in their communities and contribute to their economies in fact all of Canada is stronger.

[Brigitte Sansoucy, NDP, Saint-Hyacinthe—Bagot, QC]

Madam Speaker, I would like to thank my colleague for her speech.

As we heard earlier in this debate, the House has examined this issue for several years now. Witnesses have appeared before a committee.

Considering that this is the third time around for this bill, does my colleague not believe that the liberal government should expedite the committee's study to ensure that it is completed in one day and the bill returns to the House quickly, and then do what needs to be done for it to be passed by the Senate, which rejected it the last two times? This will ensure that rights are finally respected.

[Patty Hajdu, Liberal, Thunder Bay—Superior North, ON]

Madam Speaker, I think we all want to see this legislation move forward quickly so that people, trans people, people of different gender identity and expression, have the same protections that other Canadians do.

I cannot speak to the committee's schedule, but what I can say is that it is this government's sincere desire to see this become law as soon as possible.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Madam Speaker, one of things I think we should try to pick up on is the importance of Ottawa playing a strong national leadership role on this whole issue. We know the provinces also have a role to play. By Ottawa taking action such as this, we are once again not only reinforcing a strong international leadership on such an important file, but we are also providing, I believe, the opportunity for provinces to look in terms of what is happening, because not all provinces are in fact the same. It is, in good part, a leadership issue also.

I ask if the minister would further comment on that.

[Patty Hajdu, Liberal, Thunder Bay—Superior North, ON]

Madam Speaker, in fact, this is an important signal of leadership. When elected officials gather together and determine that a group of people deserves the same protections as all other Canadians, that is a strong indication of leadership. However, we are joining provinces that have made movement in this regard as well and are taking steps to ensure that those of us who are the most vulnerable, including people who have a different gender identity, have the right and the opportunity to live, contribute, and participate in their communities in fulsome ways. I think we are joining that work.

Absolutely, the question of leadership is an integral one. That is why we are so proud to be working on this issue today.

[Bradley Trost, Conservative, Saskatoon—University, SK]

Madam Speaker, let me give a specific illustration in my question of why I will not be supporting the bill.

There was a rape counselling group in the Vancouver area that was hauled into the legal system because it refused to take, as a counsellor, a gentlemen who had transformed into a lady. The organization said it violated its principles. It only wanted someone to be a rape crisis counsellor whose entire life was as a woman.

Why should organizations like rape counselling organizations be discriminated against under legislation such as the government is proposing?

[Patty Hajdu, Liberal, Thunder Bay—Superior North, ON]

Madam Speaker, I think the premise of the question is wrong. I think it instills the kind of fear that this bill is trying to combat. We have a role to play in showing and demonstrating to organizations across this country that this can be done, that this can be done well. It is happening in my province of Ontario. I am so proud of a province that has taken steps to mandate this in its provincial organizations; I am proud that accommodation is provided and that people are supported through their journey.

I reject the premise of the question.

[Randy Boissonnault, Liberal, Parliamentary Secretary to the Minister of Canadian Heritage]

Madam Speaker, Tuesday May 17 was an important day. It was the International Day Against Homophobia and Transphobia. It was a day to recognize the efforts of everyone who has fought for equality, freedom, and respect for gay, lesbian, bisexual, transgender, intersex, non-binary, and two-spirited persons. It was a day to celebrate the achievements of advocates and their friends and supporters in making Canada a more inclusive place in which to live. It was a day to look forward to a time when all societies embrace their diversity and draw strength and vibrancy from it.

May 17 was also the day on which the Minister of Justice introduced Bill C-16 to the House of Commons. The legislation proposes to amend the Canadian Human Rights Act to add two prohibited grounds of discrimination, gender identity and gender expression. As a result of this amendment, it would be a discriminatory practice in matters of employment and the provision of goods, services, facilities, and accommodation, in the federal jurisdiction, to disadvantage people because of their gender identity or expression.

The legislation also proposes to amend the Criminal Code. It would expand the list of identifiable groups that are protected from hate propaganda by adding gender identity or expression to that list. Finally, it would make it explicit that hatred on the basis of gender identity or expression should be considered an aggravating factor in sentencing for a criminal offence. These are very important amendments.

The Canadian Human Rights Act advances the principle that all individuals should have an equal opportunity to make for themselves the lives that they are able and wish to have, without being hindered by discrimination. All Canadians should be able to turn to the act and see their rights and obligations spelled out clearly. However, it is not evident from the current words of the act that trans and gender diverse persons have a right to equal treatment.

It is true that the Canadian Human Rights Tribunal has interpreted the act to prohibit discrimination against trans persons in some cases, but these interpretations are not easily accessible to the trans community, employers, or service providers who need to know whom the act protects. Moreover, these decisions concern particular individuals in particular situations. The full scope of protection for trans and gender diverse persons is not clear, particularly in relation to gender expression.

Gender expression refers to the ways in which people express their gender through choices such as clothing, personal appearance, name, use of pronouns, and other forms of expression. Adding this ground to the Canadian Human Rights Act would offer clear protection against discrimination by employers and service providers who would deny Canadians their dignity simply because they express their gender differently.

Trans people who have been discriminated against should not have to become expert in statutory interpretation or criminal law to advocate for their basic rights. It is not enough to hope that employers and service providers will look beyond the words of the act. As the bill proposes, Parliament should add these grounds to the Canadian Human Rights Act, as well as the Criminal Code, so they would be in the statute book for all to see.

Make no mistake, there is no doubt that trans or gender diverse persons face an elevated risk of violence at the hands of others. The Trans Pulse project studied the experiences of approximately 500 transgendered Ontarians. That study concluded the following:

Trans people are the targets of specifically directed violence; 20% had been physically or sexually assaulted for being trans, and another 34% had been verbally threatened or harassed....

In 2011, a study by Egale Canada indicated very high levels of verbal, physical, and sexual harassment against transgendered persons.

Transgendered Canadians are often discriminated against by their own family members. No group of people should be exposed to that kind of daily threat. Given the high levels of violence and threats of violence against trans people, it is clear that our laws require measures to specifically denounce the violence and discrimination inflicted on the individuals because of hatred of their gender identity or gender expression.

Our duty as parliamentarians goes beyond simply maintaining the good order set out in legislation. Canadians expect us to speak on their behalf, recognize their qualities and vulnerabilities, as well as affirm and protect their basic rights and their dignity.

This bill is not only an opportunity for us to reinforce our support for transgendered Canadians, but also an opportunity for the House to send a clear message to all Canadians that they can now feel safe and free to be themselves.

On May 17, when I stood beside the Minister of Justice to announce this legislation, we were joined by people who were well aware of the need for this bill.

They, and we, saw in this bill a real sign of acceptance and unity. This bill says to every transgender and gender-diverse person that they do not need to choose between being safe and being who they are. This bill says to young people in all parts of this country who are struggling to understand themselves, who are realizing that they are a bit different from their peers, that it is okay to be different and that they are special, that they are unique, and that they belong.

This bill sends a clear signal to our transgender and gender-diverse community members that the government will not stand for discrimination and that we stand with them, shoulder to shoulder. For any members of this House who may be considering voting no on this important legislation, I must ask why. This bill is about equality. It is about respect for diversity. Even if they cannot fully understand the lives of our transgender community, surely they can understand that no group of people should live under such threat of violence in our country.

I appeal to each and every one of my colleagues in the House to support this important issue.

I stand with all trans and gender-diverse persons, and I call on this House to affirm their equal status in Canada, and I will fight every day to ensure they are protected and free to live their lives safely and free from fear. I do so as a member of this House who is a proud, openly gay man. I was able to earn a place in this House because of the hard work of those who went before me who stood to be counted, people who stood up to discrimination, who fought for individual rights, who stood for inclusivity and acceptance, who were bullied, and against whom the laws discriminated in the past.

Today, I and we stand shoulder to shoulder with the trans community to say, “No more”, and that we will continue to fight and stand up for those who still need our protection.

To conclude, the proposed changes to the Canadian Human Rights Act and the Criminal Code's sentencing provisions would help to create a better and safer Canada that is inclusive of all forms of diversity. I urge all members of this House to support the passage of this important bill.