Justice Committee on Nov. 27th, 2012

[Ian Fine]

For the purposes of that bill and for the purposes of the repeal of section 67, we did support that transition period, yes.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Would you support a transition period for a bill like this?

[Ian Fine]

I really can't say. I really can't speculate on whether we would or we wouldn't support that.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

I'm just going back to the topic of consultation. I have spoken with the Assembly of First Nations. They haven't yet had a chance to think about this bill.

Perhaps the mover could speak to it as well. I know he's not in the hot seat today. Nonetheless, in my conversations with the Assembly of First Nations, they hadn't yet heard from the mover and were unaware of the context of the bill in terms of the effect it would have on their communities.

Should this pass, do you think it would be something your organization would engage in, consulting with them to get a better sense of how their communities would interact with this legislation?

[Ian Fine]

Given that it is not our bill—it's a member of Parliament's bill—I don't know whether we would engage in that unless called upon by Parliament to do so.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

My thanks to our guests for being here.

I almost got a feeling of déjà-vu with Ms. Watts. I do not think that anyone else here was at the meetings of the special committee on same-sex marriage, but I had the great pleasure to be part of that committee in 2005. I heard those kinds of remarks a lot, and I will not go back over Mr. Casey's comments because they were quite clear.

That said, I appreciate your questions, Mr. Bruinooge.

My questions go more to the Canadian Human Rights Commission and the Canadian Human Rights Tribunal.

If I am not mistaken, the intent of this bill is to add an expression to the Canadian Human Rights Act and to amend a few little sections of the Criminal Code. Do you see it the same way as I do?

[Ian Fine]

I am sorry, I do not understand the question. Could you repeat it?

[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?

[Ian Fine]

To add two new grounds to the list of prohibited grounds in the Canadian Human Rights Act.

[Françoise Boivin, NDP, Gatineau, QC]

Two grounds or new grounds, in writing, that we've been told in both your briefs you're already applying.

[Ian Fine]

That's right.

[Françoise Boivin, NDP, Gatineau, QC]

So we're not coming out of the sky with something, or the earth is going to open and something brand new is here.

I just want to reflect a little on this idea of going to consult various groups. We are not talking about a government bill, after all, but a private member's bill. Everyone understands that. The principles are not necessarily the same. Perhaps those comments are more for my colleagues. We agree on that.

Mr. Gupta, you were asked the question specifically, but you did not really answer it, I feel, on the basis that your tribunal is quasi-judicial and therefore you should not express an opinion on certain things. But your text does; it says:

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 the statutory framework of prohibited grounds, in particular under the grounds of sex and disability. However, as I will explain, 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 it is believed that this is a recognized right—and I am not asking you to express an opinion on that—is it not better for the tribunal to have something in writing rather than to have to make a legal interpretation? Would it not be preferable to have something written down in black and white?

I'll address this to Mr. Gupta, since you tried to avoid answering this.

[Susheel Gupta]

I didn't try to avoid it. The tribunal's role is really to apply the law as Parliament has written it and according to instructions received from the courts. We really don't take a position on whether including the definition would assist the tribunal. I stated as fact in my opening remarks that transgender issues have been found to be discrimination-based on either a combination of sex and/or disability.

[Françoise Boivin, NDP, Gatineau, QC]

I'll give you an example. This justice committee had to review another bill, a private member's bill, which was to remove

section 13 of the Canadian Human Rights Act which prohibited hate speech. On the government side, they said that taking it out would be great because the matter was already dealt with in the Criminal Code. But the hate speech under the Canadian Human Rights Act also dealt with discrimination on the grounds of sex. And if you look at the offences described in sections 318 and 319 of the Criminal Code, you see that they no longer refer to sex.

When something is not written down, it becomes open to interpretation. I cannot believe that having an expression written down on paper does not help a tribunal, its officers or commissioners to understand things clearly.

[The Chair, Conservative, Dave MacKenzie]

Thank you. We're quite a ways over time.

Thank you, Madame Boivin.

Mr. Rathgeber.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair, and thank you to all the witnesses.

Mr. Fine, you said you had three points, and I certainly agree with the first two.

Discrimination and harassment experienced by people who are transgendered is hostile and violent. I absolutely agree.

The commission and the tribunal view gender identity and gender expression as protected by the Human Rights Act. I absolutely agree.

Your third point is that if this bill is passed it would make the human rights protection explicit. I don't know what that means. I will tell you why I don't know what that means. It's because the tribunal has made it perfectly clear, in the most emphatic of words—and these are their words, not mine—in Montreuil v. the Canadian Forces in 2009, that there's no longer any doubt that discrimination based on transexualism is discrimination based on sex or gender as well as discrimination based on disability. I don't know what could be more explicit than that.

What do you mean in your third point that this bill makes that protection more explicit?

[Ian Fine]

Thank you for your question.

It's more around the debate. It is true that the Canadian Human Rights Tribunal certainly has held that these matters fall within the existing prohibited grounds. There's no doubt about that. Other courts and tribunals across the land have done so. As I have said, we receive complaints on transgender issues under the ground of sex and sometimes disability.

But the reality is that even though the courts have accepted that and we accept that, parties still go before those tribunals and courts and raise arguments about whether or not they are included. So clearly there are some Canadians who aren't in agreement with that notion, who are still fighting about it, who feel that the protection is not explicit or shouldn't be covered by one of the other grounds.

We're simply suggesting to add these grounds to provide more clarity to all Canadians, to make it explicit, and then there's no doubt.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

You want to educate Canadians that if this type of dispute occurs in a workplace, in a bank, in an airline—some place that's under federal jurisdiction—this is the likely outcome.

[Ian Fine]

At least everyone will know that these issues are covered by the act. There won't be any discussion about it.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you.

Mr. Gupta I have some questions for you.

The three cases that I am familiar with from your tribunal are Montreuil v. Canadian Forces, Montreuil v. National Bank, and Kavanaugh v. Canada.

Have any of those been appealed to the Federal Court?

[Susheel Gupta]

If you give me one moment....

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I think there's a fourth that I don't know about. You've adjudicated a fourth time. I was only able to find three.

[Susheel Gupta]

There are three Montreuil cases and the Kavanaugh, which you cited.

I believe Kavanaugh was upheld on judicial review by the Federal Court.

Montreuil v. Canadian Forces Grievance Board, 2007, was also upheld on judicial review by the Federal Court.

The other two I believe were not judicially reviewed, not appealed.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Your dictum in Montreuil v. Canadian Forces—that there's no longer any doubt—is good law in Canada.