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Evidence of meeting #53 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site.) The winning word was tribunal.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Ian Fine  Acting Secretary General, Secretary General's Office, Canadian Human Rights Commission
Susheel Gupta  Acting Chairperson and Chief Executive Officer, Canadian Human Rights Tribunal
Diane Watts  Researcher, REAL Women of Canada

4:40 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

Because we have about half an hour before the bells ring and so on, and I think there are about eight amendments, just in case we're not done by 5:15 p.m., I was presenting a motion that we continue next Tuesday, not this Thursday—just to finish the file and then it's done, because we're still stuck with the December 8 deadline to bring it back to the House. Thursday is the minister, but next Tuesday....

4:40 p.m.

Conservative

The Chair Conservative Dave MacKenzie

I think the clerk has indicated it's December 10.

4:40 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

December 10?

4:40 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Yes.

So hearing the motion—

4:40 p.m.

Conservative

Brent Rathgeber Conservative Edmonton—St. Albert, AB

I'm just curious, Mr. Chair, if we have something scheduled for next Tuesday or if this is something that should go to the steering committee.

4:40 p.m.

Conservative

The Chair Conservative Dave MacKenzie

We don't have anything scheduled for next Tuesday. Next Tuesday is still open.

4:40 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

It's just in case we're not done. We might be done and we might not be. I don't know.

4:40 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Those in favour of the motion?

(Motion agreed to)

Before we begin, we have one small piece of business: the budget that was circulated by the clerk.

All in favour?

4:40 p.m.

Some hon. members

Agreed.

4:40 p.m.

Conservative

The Chair Conservative Dave MacKenzie

The legislative clerk tells me that we have a few issues that Mr. Garrison has been made aware of. As he goes through his motions here, we should be able to clear it up or steer our way through.

(On clause 1)

I understand the NDP has amendment NDP-1?

4:40 p.m.

NDP

Randall Garrison NDP Esquimalt—Juan de Fuca, BC

Right. Thank you very much, Mr. Chair.

The package of amendments before you simply remove gender expression, add a definition for gender identity, and clear up a few other technical things in the bill. There is nothing other than that in these amendments.

The first amendment is that Bill C-279, in clause 1, be amended by replacing line 19 on page 1 with the following:

“identity, marital status,”

And then, because the legislation was amended after this was drafted, we have to add:

family status, disability, or conviction for an offence for which a pardon has been granted, or in respect of which a record suspension has been ordered.

So that second part is a technical correction of the amendment, because the statute was amended after this was drafted.

4:40 p.m.

Conservative

The Chair Conservative Dave MacKenzie

On NDP-1, Mr. Rathgeber and then Mr. Casey.

4:40 p.m.

Conservative

Brent Rathgeber Conservative Edmonton—St. Albert, AB

I'm curious as to why “gender expression” is being deleted from this bill. My first instinct is that this narrows the scope of the bill, and I guess my first instinct would be that this is a positive step. As I think the members know, I generally do not support this bill, only because I think it's redundant and not necessary.

But with respect to the specific amendment, removing “gender expression”, we heard quite emphatically from the witnesses here today—and I think it was the individual from the commission, Mr. Fine—that, strictly speaking, none of this is needed. All of this is to create sort of an awareness within, I suppose, not only the transgender community, but also the community at large, that this type of protection is to be afforded to people who are involved in that community and might be subject to discrimination.

We heard from the individuals from the commission and from the individual from the tribunal that from a legal perspective nothing changes as a result of these proposed provisions. So I put it to the sponsor. Maybe he doesn't agree with them—maybe he thinks there is a legal nuance that escapes me and that escapes the witnesses from the commission and from the tribunal—but if he accepts their legal positing that, strictly speaking, these amendments are not needed, and if all he's trying to do is create awareness and discourage discrimination, which I would support, and I certainly support the elimination and discouragement of discrimination against all groups, why isn't “gender expression” being left within the ambit of clause 2 of this bill to discourage discrimination in that community?

I think unless I hear something convincing from Mr. Garrison, I'll be voting against this amendment.

4:45 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Mr. Casey.

4:45 p.m.

Liberal

Sean Casey Liberal Charlottetown, PE

Thank you, Mr. Chairman.

I don't plan to speak to every amendment, but I want to put on the record that the Liberal Party was supportive of the bill in its original form. With respect to this amendment, to Mr. Rathgeber's point, the brief provided by the witnesses indicated that accessing health care, obtaining health identification, can be difficult.

I do believe there is some value over and above the symbolic value in the fact that awareness will be raised by virtue of the passage of this bill. I think in an ideal world, both “gender identity” and “gender expression” should remain. It's my hope that the protections we seek to afford trans people will survive this amendment.

I want to congratulate Mr. Garrison for bringing this forward.

Thank you.

4:45 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Thank you.

Mr. Seeback.

4:45 p.m.

Conservative

Kyle Seeback Conservative Brampton West, ON

I think what we have seen here now is an example of areas in which I'm confused and have concerns.

What we are talking about is removing “gender expression”. Mr. Garrison talked about it when he first made his presentation, saying that he had told a number of people that he would remove gender expression because that's the area in which some people thought there was a problem—maybe I'm paraphrasing—with the bill. To make it a little more palatable for some people, he said he was going to take that out.

I'm certainly appreciative of that. I contrast it with what I heard at committee. I heard the representative from Egale say, and again I am paraphrasing, they have a solid legal opinion that gender identity will include—clearly, in a subset—gender expression. As much as he wanted it to stay in, he was content with its actually coming out because he thought it was still in.

Now I'm hearing from Mr. Casey—and again, Mr. Casey, I am paraphrasing—that they really want it in, and I hope that by virtue of taking it out that it's not gone.

I sit here and am quite confused, as a member of the committee. We certainly haven't heard from anybody from the Department of Justice who could shed some light on whether this would be included in the legislation as it is drafted or whether it needs to be there separately.

That, of course, raises the question in my mind: if it's in there anyway, regardless of its being taken out, should this committee not look at defining gender expression? I'm not saying that I agree or disagree with some of the testimony we heard from the witness today, but we certainly heard that when something is put into a piece of legislation and is not defined, other people are then free to define that phrase.

If we're looking at amending the Canadian Human Rights Act, we as parliamentarians have a responsibility to make sure we're not sending something out that could end up being defined in a way that we had explicitly said we aren't going to define because it is being removed.

These are my concerns with the way we're drafting this legislation. I don't know whether or not Mr. Garrison is going to comment and alleviate my concerns at all, but this to me creates a problem.

Quite frankly, I think this committee should be hearing from other witnesses to decide whether or not this is unequivocally going to be the case.

If it is the case, then I think we have to look at coming up with a definition. I don't think we should be passing legislation whose effects we don't foresee. I think it's our job as this committee to make sure we understand the implications of our legislation.

As far as I'm concerned, at this point that has not happened—certainly not to my satisfaction; I don't know whether anybody else feels that it has been answered satisfactorily. At this point, Mr. Chair, I have to say that unless I have some clarification, I don't want to accept this amendment.

I also think we have to look at further study on this and come up with a definition we can all agree on, to make sure we're not going down the road of unintended consequences.

4:50 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Thank you.

I have Ms. Findlay.

November 27th, 2012 / 4:50 p.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

Thank you, Mr. Chair.

We did hear today from both the Human Rights Commission and the Human Rights Tribunal. Those are the two entities in our system that have dealt the most with complaints from those in the transgendered community.

I sat as an administrative law judge or tribunal member on the Canadian Human Rights Tribunal for five years. I was an appointee of this government in that role. I dealt with at least one case with a transgendered complainant, which we were able to mediate through the course of about a 16-hour day. Obviously, if it was settled, it was dealt with to the satisfaction of both sides on that.

So there is no doubt that this jurisdiction is there and it is used in the present form of the Canadian Human Rights Act. However, I have to disagree with my colleague, Mr. Seeback, that we haven't heard enough about this. I think those two witnesses who deal with these matters on a continuing basis were very clear in their evidence. The commission representative said more than once that it would be a clarification of the law to have the term explicit in the law, as opposed to searching within the present grounds to make it fit.

Also, the acting chair of the tribunal made the point that in the cases the tribunal has heard to this date, where they were actually at a hearing as opposed to a mediation, the issue as to whether the transgendered complainant would fit within a category was not contentious. However, I know from having been a tribunal member that just because a tribunal has already applied a case to a certain ground, it does not make it definitive.

I would give the example of the Johnstone case, on which I was the tribunal member, and I won't get into the details because it's still before the courts, ever being appealed. However, the point I'm making is that in that case, the ground that was at issue was family status. And even though there had been many tribunal decisions defining “family status” because it didn't have a definition within the act, it kept coming up over and over again, both before the tribunal and the courts, as to whether family status in fact included, in that case, a young mother with young children, as opposed to your association with another in a family. These are some of the vagaries, of course, of common law, and those who practise in the civil code sometimes will say, well, that's why we codify things.

The point I'm making here is that just because the law as it is now has been applied to transgendered complainants does not mean that further clarity or explicitness would not be helpful, and it does not mean that we should ignore the opportunity to make it more explicit. As far as definitions go, we haven't got there yet, but there is another amendment that will be brought forward before us, which does define “gender identity”, and that is the point.

In my first speech on this matter in the House, I said I could not support the bill in the form it was originally brought, for two reasons.

One, “gender identity” and “gender expression” were both there, and I felt that “gender expression” was less understood by the Canadian public and it was open to further and other interpretations far more than “gender identity”.

Secondly, being a lawyer, I like the idea of having legislation be clear, and a definition was needed. Those amendments have been brought forward. They meet those concerns I had at the beginning. Therefore, I will be supporting this amendment and any others that are before us, because I've read through them and I think they achieve the goal that my concerns addressed.

4:55 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Thank you, Ms. Findlay.

Mr. Garrison.

4:55 p.m.

NDP

Randall Garrison NDP Esquimalt—Juan de Fuca, BC

Thank you very much.

My goal in bringing forward the bill was to address a problem for a community much discriminated against within Canada. When I met with some objections over the term “gender expression”, as Ms. Findlay has just said, not being as well understood or defined, I agreed that it could be removed from the bill and we would still make progress. In the best of all possible worlds for me, as for the Liberals, it would still be there, but I'm seeking the maximum support for this bill. As I've said to Mr. Rathgeber privately...not just a majority, but I'd like to see as many parliamentarians on side as possible, because it makes a very strong statement to the Canadian public.

For that reason I'm suggesting we narrow the scope of the bill; we take out the more contentious.... We deal with “gender identity”, which has a clear definition, as you'll see in law, that's more clearly recognized. If we as a group try to write the definition of “gender expression”, we'll be breaking new ground in Canadian law, in international law. We'll be doing something that no one else has really done. At this point, I think I am prepared to say we really can't do that in this committee, so let's take the term out.

4:55 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Mr. Bruinooge.

4:55 p.m.

Conservative

Rod Bruinooge Conservative Winnipeg South, MB

Thank you, Mr. Chair.

I have just a couple of questions on this motion to amend. I think Mr. Garrison has answered some of this.

Going back to some of the comments earlier in relation to the testimony from Mr. Fine, I know it was suggested that he express some clarity on their position. Just going back to my questions to Mr. Fine, I felt there wasn't a lot of clarity in relation to duty to consult and things of that nature.

My question on this particular motion to amend is again going back to how first nations communities will implement this measure. I know there are a number of systems within first nations communities that I'm not sure have been fully considered yet by this committee. I'm thinking in particular of a practice by the Iroquois to appoint clan mothers and having their input on their processes—processes that have lasted for thousands of years right into modernity.

I think there's probably some value in getting more input on how these changes will impact those communities. I think it's probably incumbent on us as parliamentarians to consider that as we move forward on measures like this. I think it's important; even though there isn't a specific process that Parliament has identified for movers of bills that have demonstrated impact on first nations communities, I think there is some general consensus that there should be some outreach in relation to changes that will impact first nations communities.

I know when I was working on the section 67 repeal back in 2007, which actually extended the Canadian Human Rights Act to first nations people for the first time, it was a process that lasted some 30 years. If it in fact would have started right after the bill was first brought in, introduced, and passed...and really a process of 30 years was in play for being able to consult with those communities and bring them into a place where they began to absorb the changes and the impacts those changes would have.

Am I suggesting that we need to look at that type of a timeframe in relation to this? Probably not. Clearly in the past, though, I think there has been that acknowledgement in relation to these important changes that we're seeing.

Mr. Chair, perhaps this is a question also to you in terms of your process. I know we're currently dealing with this first motion to amend by Mr. Garrison, but what kind of process are you going to be looking at for amendments to other sections? If I were to put something on the table, let's say in relation to a transition period, how would you envision that occurring here today or at future committees?

5 p.m.

Conservative

The Chair Conservative Dave MacKenzie

The committee is its own boss. They decide. So that would be up to the committee.

5 p.m.

Conservative

Rod Bruinooge Conservative Winnipeg South, MB

Perhaps after we address Mr. Garrison's first motion, or second—I'm not sure how many he has—there will be an opportunity for other suggestions to be brought to the table, such as an exemption for first nations people or something along those lines?