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

Sponsor

Status

This bill has received Royal Assent and is, or will soon 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 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.

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

Oct. 18, 2016 Passed That the Bill be now read a second time and referred to the Standing Committee on Justice and Human Rights.

Canadian Human Rights ActGovernment Orders

November 18th, 2016 / 10:05 a.m.
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Liberal

Sean Casey Liberal Charlottetown, PE

Mr. Speaker, I thank my colleagues for that.

I would like to use some of my time to respond to a persistent criticism of the bill. That is that it is redundant, unnecessary, and merely symbolic. Members raised this issue during second reading debate. They have argued that the bill is not necessary, because our federal discrimination law already provides trans people with enough protection. I acknowledge the perspectives of my fellow parliamentarians, but I believe that these concerns can be answered and that the bill is indeed necessary.

It was pointed out that under the current Canadian Human Rights Act, commonly called the CHRA, trans people may bring discrimination complaints using the ground of sex.

It is true that the Canadian Human Rights Tribunal has interpreted the existing ground of sex to cover some complaints brought by trans individuals alleging discrimination, but a person must be quite familiar with the case law and the workings of the CHRA system to know that this protection is even available. Canadians should be able to turn to our laws and see their rights and obligations spelled out clearly. We cannot expect trans people who feel they have been discriminated against to become experts in statutory interpretation just to advocate for their basic rights.

The CHRA system was originally designed to be a user-friendly, inexpensive, and accessible system. We can further improve access to justice for Canadians by ensuring that rights and obligations are spelled out clearly in the CHRA.

What is more, employers and service providers must also be aware of their obligations under the law. They too should be able to look at the CHRA and understand what is required of them. They should be able to understand what kinds of workplace accommodations they must provide to their employees. This area of the law is just emerging. Bill C-16 would serve the important function of clarifying and codifying it.

These are practical results, not mere symbolism. When similar amendments were made in provincial human rights codes, human rights agencies received inquiries from the public creating new opportunities to inform people about their rights and obligations.

Ontario's Human Rights Legal Support Centre reported an increase in enquiries about gender identity and expression, and there are similar reports from other provinces. After gender identity and expression were added to the Ontario Human Rights Code, the Ontario Human Rights Commission reported a growing awareness that discriminating on these grounds is against the law. Commissions have confirmed that explicitly listing these grounds supports their mandate to inform the public of their rights and obligations.

We have also seen legal education respond to amendments such as these. Bulletins, newsletters, and textbooks are sent out and updated to account for statutory amendments. Training sessions and conferences are held to inform legal professionals and others of the new provisions.

That has been the experience elsewhere. We should expect the same when this bill is enacted. These are some of the tangible effects we hope to achieve with the bill. They are results, and parliamentarians have the ability and the responsibility to set them in motion.

I turn now to another reason for the bill: it would amend the Criminal Code to respond to the risk of violence and harm faced by trans individuals on an all too frequent basis.

For a better sense of these risks, I would refer the House to the Trans Pulse project, a research study of social determinants of health among trans people in the province of Ontario. Data for the Trans Pulse project came from focus groups conducted in three Ontario cities in 2006, with 85 trans community members and four family members, and from a survey in 2009-10 of 433 trans Ontarians age 16 and over.

According to this research, trans individuals are the targets of specifically directed violence. Twenty per cent had been physically or sexually assaulted for being trans, and another 34% had been verbally threatened or harassed but not assaulted. Many do not report these assaults to the police.

Let me now turn to the proposed Criminal Code amendments that are intended to address these risks and harms. First let us consider the aggravated sentencing provision that enables judges to properly recognize and denounce crimes motivated by bias, prejudice, or hate. This is found in section 718.2 of the code.

One of the important purposes of the aggravated sentencing provision is the condemnation of hate crimes. It is about recognizing that some people may be more vulnerable to crime simply because they are identifiable as members of a particular group. That can be because of race, religion, colour, or ethnic origin, to name just a few of the listed grounds. Bill C-16 would add explicit protection for members of the trans community.

We can see, again, that Bill C-16 is more than just a symbolic gesture. Adding the ground of gender identity or expression to the Criminal Code would explicitly condemn this type of hate crime. It would also clearly signal to police and prosecutors that they must be aware of the particular vulnerability of trans individuals.

Bill C-16 would also add gender identity or expression to the hate propaganda offences in the Criminal Code. This is by no means redundant. This amendment would fill a gap in the law. In the criminal context, clarity and certainty is of great importance. Criminal offences are interpreted narrowly. The hate propaganda offences currently protect groups identifiable on the ground of sex and other grounds, but there is no mention of gender identity or expression. We cannot assume that these offences would be interpreted to cover gender identity or expression without the amendment of Bill C-16.

Finally, some members have expressed the view that the terms “gender identity” and “gender expression” are too vague and open-ended. It has been suggested that the addition of these grounds would lead to a flood of litigation.

I do not think this concern is warranted. Most provinces and territories now have explicit protection for trans and gender-diverse people in their anti-discrimination statutes. Ontario, Quebec, Alberta, British Columbia, Nova Scotia, Newfoundland and Labrador, and Prince Edward Island all have gender identity and gender expression as prohibited grounds in their human rights codes. The codes in Manitoba, Saskatchewan, and the Northwest Territories have the ground of gender identity. In fact, the Northwest Territories has had the ground of gender identity in its act for more than a decade. There has not been a flood of ligation in these provinces and territories.

I have also heard the suggestion that a definition should be added. Most of the prohibited grounds of discrimination in the CHRA do not have definitions. Commissions, tribunals, and courts elaborate the meaning of the grounds in a reasonable way. They clarify through the application of real-life examples, allowing the law to respond in line with its purpose. This does not mean that grounds are indeterminate. It does not mean that people can claim protection on a whim or for frivolous reasons. There are real limits to what any ground can mean, informed by the important purpose of the legislation and the social context in which it is being enacted.

It is time for Parliament to ensure that our laws provide clear and explicit protection where it is now much needed. I urge members to vote in favour of this bill.

Canadian Human Rights ActGovernment Orders

November 18th, 2016 / 10:05 a.m.
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Charlottetown P.E.I.

Liberal

Sean Casey LiberalParliamentary Secretary to the Minister of Justice and Attorney General of Canada

Mr. Speaker, I request consent to split my time with the member for St. Catharines.

I am rising to take the opportunity to speak about Bill C-16. I would like to use some of my time to respond—

Canadian Human Rights ActGovernment Orders

November 18th, 2016 / 10:05 a.m.
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Liberal

John McCallum Liberal Markham—Thornhill, ON

moved that Bill C-16, an act to amend the Canadian Human Rights Act and the Criminal Code, be read the third time and passed.

The House proceeded to the consideration of Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, as reported without amendment from the committee.

Business of the HouseOral Questions

November 17th, 2016 / 3:05 p.m.
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Waterloo Ontario

Liberal

Bardish Chagger LiberalLeader of the Government in the House of Commons and Minister of Small Business and Tourism

Mr. Speaker, this afternoon, we will continue our debate at second reading of Bill C-26 on the Canada pension plan.

Tomorrow, we will resume debate on Bill C-16 on gender identity. If time permits, we will also examine Bill C-25, the business framework bill.

On Monday, I will call Bill C-30, the CETA implementation legislation, for consideration at second reading. The bill will be on the agenda for Monday, Tuesday, and Wednesday. It is my hope that this bill will be referred to committee on Wednesday evening.

On Thursday, we will consider second reading of Bill C-23 respecting pre-clearance.

Next Friday, I will call Bill C-18, the Rouge national park legislation, for second reading debate.

November 17th, 2016 / 11:05 a.m.
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Deputy Director General and General Counsel, Human Rights Law Sector, Public Law and Legislative Services Sector, Department of Justice

Laurie Sargent

With respect to the Canadian Human Rights Act, the key piece will be that it's adding a new prohibited ground of discrimination to the CHRA: the ground of genetic characteristics. We were just been here on Bill C-16, which was also adding a new ground of gender identity and expression. This bill will provide explicit protection against discrimination on the basis of genetic characteristics.

From the Department of Justice's perspective, there already is some protection in the CHRA under the ground of disability for anyone who has a predisposition, as we would call it, to a disability that might be revealed through any number of means, including a genetic test. That has been established in the case law by the Supreme Court, in the case of Quebec v. Boisbriand (City) and Quebec v. Montreal (City). This is taking that, in a way, one step further to make it clear that discrimination is prohibited whenever someone has a genetic characteristic that may predispose them to particular abilities or not, or illness or not, and clear that this is obviously a prohibited basis on which employers and service providers who are regulated by the federal jurisdiction can make decisions.

Justice and Human RightsCommittees of the HouseRoutine Proceedings

November 4th, 2016 / 12:10 p.m.
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Liberal

Anthony Housefather Liberal Mount Royal, QC

Mr. Speaker, I have the honour to present, in both official languages, the sixth report of the Standing Committee on Justice and Human Rights in relation to Bill C-16, an act to amend the Canadian Human Rights Act and the Criminal Code.

The committee has studied the bill and has agreed to report the bill back to the House without amendment.

Business of the HouseOral Questions

November 3rd, 2016 / 3:05 p.m.
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Waterloo Ontario

Liberal

Bardish Chagger LiberalLeader of the Government in the House of Commons and Minister of Small Business and Tourism

Mr. Speaker, this afternoon we will continue to debate the Conservative Party motion.

Tomorrow, we will resume debate on Bill C-26, on the Canada pension plan.

Next week, as the hon. member said, we will be working hard in our constituencies and attending Remembrance Day ceremonies on Friday to collectively stand in honour of all who have fallen in the service of Canada.

When we return on Monday, November 14, the House will then have the fifth day of second reading debate on Bill C-26, the CPP enhancement bill. On Tuesday, the House will also have the fifth day of second reading debate on Bill C-29, the second budget implementation bill.

On Wednesday, the House will consider Bill C-16, the gender identity bill, at report stage, and hopefully at third reading. On Thursday, the House will debate Bill C-25, the business framework bill, at second reading.

November 3rd, 2016 / 11:15 a.m.
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Liberal

The Chair Liberal Anthony Housefather

We don't need to order a reprint of the bill because there were no amendments. So that ends the discussion on Bill C-16.

Mr. Clerk, will you be able to get that to me to report back tomorrow?

Thank you very much.

We'll now go to an in-camera session. We'll take a five-minute break while everybody else leaves the room.

[Proceedings continue in camera]

November 3rd, 2016 / 11 a.m.
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Conservative

Ted Falk Conservative Provencher, MB

Thank you, Mr. Chair.

Before we begin, I thought it was important that I express some of my thoughts on the decision of this committee to move directly into clause-by-clause. In my three years as a member of Parliament—it's not that long—I don't recall any precedent of a bill moving directly to clause-by-clause when it has been referred to committee.

I respect all members of this committee, and I hope that each of you has felt that as we have worked together on various bills. We've always been able to work constructively and had good discussions and honest dialogue, even on issues that invoked a lot of passion on both sides of the table here. It's precisely because of my respect and appreciation for members of this committee that I'd like to make a few comments.

I believe that as a committee, we've failed to do what we need to do. I believe that Canadians expect us to conduct a thorough study every time a bill comes to committee, to examine it, and to improve it where possible, and then to send it back to the House for third reading before it moves to the Senate. And I think collectively, as a committee, we have failed to do that; we have failed to discharge our duties. Our job as a parliamentary committee is to give due consideration and thorough study to all bills that are referred to us. We don't do that just to fill the time allotted to us here by our caucus, but we do it because it's a responsibility and a trust that has been given to us by our caucus, by our fellow Canadians, and also by our constituents.

The mandate of our committee states that we will review proposed amendments to federal legislation relating to certain aspects of criminal law, family law, human rights law, and the administration of justice, with respect to—among other statutes—both the Criminal Code and the Canadian Human Rights Act.

As you're all aware, both of these statutes are set for amendment in Bill C-16, but I could just as easily have been speaking about any legislation referred to this committee.

I believe we all support initiatives that protect individuals from hate speech. We all believe that individuals deserve equal treatment under the law. Every one of us here condemns bullying or violence of any kind, but it really comes down to this: how do we know what we don't know? There has been much discussion in the media lately concerning the matter of free speech and the state of free speech here in Canada. Do we really know if this bill will have an impact on free speech? No, we don't.

Concerns have been raised about the impact on our immigrant and religious groups who have some deeply held convictions with respect to human sexuality. Have we explored whether there's a need for explicit safeguards to protect these groups? No, we haven't. And can we assure them that the concerns they may have have been studied thoroughly and that they have nothing to worry about? I don't believe we can.

Can any of us answer the questions raised about whether there's room for abuse because of this legislation? For example, when it comes to something as simple as women's athletic scholarships, do we know if a male who identifies or expresses his gender as something other than male would insist on applying this new law so he could qualify for a scholarship expressly intended for a female athlete? No, we don't know that. Had we properly studied this bill, maybe there would have been some recognition that this bill needs to include certain safeguards. We're in no position to answer any of these questions because we just haven't done our job; we haven't had a chance to study and to get feedback from stakeholders.

I believe we have a duty and an obligation to listen to Canadians, not only informally as persons, or through messages by text or email, but formally before this committee, whether they are individuals who support the bill unequivocally, or those who want to see adjustments made, or those who see the bill as fundamentally flawed, we owe it to Canadians to listen, to make informed decisions based on the testimony we hear.

Mr. Chairman, I think that's what Canadians expect of us, and I'm sad to say that we've failed in this duty. For that reason, among others, I will be voting against the bill.

Those are my comments.

November 3rd, 2016 / 11 a.m.
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Liberal

The Chair Liberal Anthony Housefather

Hello, everyone.

I would like to call to order this meeting of the Standing Committee on Justice and Human Rights.

Of course, since this will be our last meeting before Remembrance Day, I know that every member of this committee would like to salute our veterans, and all the members of the Canadian Armed Forces, on this very solemn occasion.

Today we're going to start our agenda with a clause-by-clause review of Bill C-16, and afterwards the committee will go in camera for other discussions.

Mr. Falk.

October 27th, 2016 / 12:10 p.m.
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Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

I appreciate the question.

I certainly recognize the thoughtfulness of the questions that were asked around this table and the expression of support that was reflected in the House of Commons' vote at second reading. I hope it moves very quickly through the House of Commons into the Senate.

I have confidence in the honourable senators to have dialogue and debate around Bill C-16, as they have done on other pieces of legislation. I do hope there is a recognition of the need to have this legislation in place in terms of gender identity and gender expression.

As the Minister of Justice, I am very open, as I have been on previous pieces of legislation, to engage at committee or individually with the honourable senators to answer any questions they may have and to provide any background evidence and studies they would require in making their determination. I very much look forward to the swift passage of Bill C-16 into law.

October 27th, 2016 / 12:05 p.m.
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Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

One of the purposes of bringing this legislation forward is to show Canadians, individuals among the trans population, that their rights are protected in law. Many of those individuals feel that they do not have the ability or that there isn't a safe place for them to freely express themselves. We need to move beyond that.

In terms of the significance of Bill C-16, I certainly would point to the many individuals I've met, including a very young lady by the name of Charlie who was present when we introduced this legislation. My interaction with her was incredibly emotional. She feels incredibly empowered that the Government of Canada has recognized that there is discrimination, and that the government is seeking in Parliament, I hope, to do everything we can to eliminate that discrimination so she can be proud of who she is and feel that her views and the way she feels about herself are welcomed, and that we can provide the space for her to be as successful as she wants to be.

That is where the substantive nature of this piece of legislation is reflected, in the eyes and the mouths of the individuals—

October 27th, 2016 / 12:05 p.m.
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Conservative

Ted Falk Conservative Provencher, MB

Okay, I accept that.

You indicated in your interview on Power & Politics that you really didn't think there would be a significant change. I'm wondering whether you are aware of any particular cases, and whether you can cite any, that were unable to be prosecuted because of our existing laws but would have seen successful prosecution had Bill C-16 been enacted.

October 27th, 2016 / noon
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Liberal

Jody Wilson-Raybould Liberal Vancouver Granville, BC

I've had the benefit of meeting with a myriad of stakeholders, advocates in terms of the trans population, in one-on-one conversations, which I take incredibly seriously, and reference the situation that the member speaks about in terms of discrimination of the individual in the law firm.

I've heard many stories in that regard. I've read testimony in the blues around previous iterations of this piece of legislation, and I've heard from the advocates who presented on behalf of the legislation, whether it be around committee tables like this one or in the House. There is a substantive body of testimony, of personal reflections and factual circumstances that, without equivocation, lends itself to ensuring that we pass Bill C-16 as fast as we can.