Justice Committee on Dec. 6th, 2012

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

It's already out.

[The Chair, Conservative, Dave MacKenzie]

Right.

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

Can you confirm for me that Mr. Seeback's proposed amendment, which is CPC-7, was deemed non-votable when this committee passed NDP-1?

[The Chair, Conservative, Dave MacKenzie]

Yes, because it's the same line, and the same line can't be amended twice.

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

I'm a little confused; well, actually, I'm a lot confused. I'm a little confused that Mr. Garrison is actually proposing his amendment, only because I understand there was some suggestion that perhaps some of the alternate definitions of gender identity were actually superior to the definition proposed in this amendment by the sponsor of the bill.

Since we have to deal with this proposed amendment before we deal with the other ones, I'm perplexed as to why the sponsor of the bill would include the qualifier “deeply felt”. It occurs to me, first of all, that from a legal perspective it ambiguous as to what that means. I don't know how an administrator sitting on the Human Rights Tribunal could possibly evaluate whether or not a person's claim to discrimination under the proposed grounds of gender identity is “deeply felt”.

That aside, I would think that the individuals who are advocating for this type of legislation would also want to remove the words “deeply felt”, because “deeply felt” creates a bar that you have to climb over. It's a gatekeeper level that you have to get over before you can claim the protection of the statute, as opposed to CPC-8, which removes the words “deeply felt”.

Then it's only an individual's inherent feeling of gender, as opposed to a “deeply felt” feeling of gender, which I think satisfies both. My concern is that you cannot assess what is and what isn't “deeply felt”. It would also address the concern of those who are promoting this type of legislation by not forcing applicants to establish the bar of “deeply felt”.

I'd like to put my name back on the bottom of the list. I would like Mr. Garrison to comment on some of the proposed amendments and whether or not he might think there might be some merit to CPC-8 or CPC-9 as opposed to NDP-2.

[The Chair, Conservative, Dave MacKenzie]

You may if you wish.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

I answered your question. The definition is based on international law, so it's not my personal opinion about “deeply felt”.

We had a number of discussions away from the table with people about trying to reach a compromise. At that time, I said I was willing to consider your amendments. As people on the other side of the table were not willing to reach an agreement, then whether I like or dislike the amendments is really a moot point.

Again, this is based on international law and based on some precedents in other areas of Canadian law. I'm not just making it up.

[The Chair, Conservative, Dave MacKenzie]

Go ahead, Mr. Anderson.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

Thank you, Mr. Chair.

Mr. Garrison says that he's not making it up, and I guess it shows up in some places.

I'd like to come back to Mr. Casey's original question, which is important here, because when we start talking about the element of subjectivity, that apparently is not found in the other definitions.

There are two elements of subjectivity in this. One is the person who is involved and the other is the public. If this passes, what is the public's responsibility? What is the public's knowledge in terms of how to determine a person's identity? What will be the factors they will be obligated to use, when this law is passed, to refrain from discriminating against someone?

If the definitions are as subjective as they seem to be, or as this one seems to be, we're going to have a very hard time answering that question.

[Laura Stone]

First, it's really important to remind everyone of the coverage of this act. It's in the federal jurisdiction. It covers employment and service providers in the federal jurisdiction. It is the federal government, obviously, and banks, airlines, and so on, so in terms of the public, it's a relatively narrow public.

Your question is exactly how employers and service providers will interpret this term. You mean how they will know whether they have discriminated against an employee or a person seeking service. Is that it?

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

Sure. If we're not going to go to the general public, what is their obligation? How will they know what their obligations are, with definitions that are so vague?

I ask this because I think there is something else going on here, to some extent. Mr. Garrison has said in the past that once this is in the Canadian Human Rights Act, the courts and the human rights commissions themselves will define those terms. I'm just asking if there is enough definition here so that employers will know what their obligations are, or is that going to have to be defined, as it has been in the past—and I assume from what Mr. Garrison would like to see, as it will be in the future—by human rights commissions and the courts?

If that's the case, then the definition is too vague.

[Stephen Zaluski]

It's a good question. I think that we always have to start from the perspective that it is up to a complainant to demonstrate that they have been discriminated against on a ground that's contained in the act, even for other grounds.

For example, family status right now is a ground in the act whose interpretation is not yet established, and there are different views—legal views, academic views—about what this ground means. With this ground, as with any ground, it would be up to a potential claimant to indicate to their employer, their landlord, the service provider—the potential respondent—that they believe they are being discriminated against by that person on this particular ground.

In that sense, this is something that regularly occurs: the complainant has to take some steps to notify the person they believe is discriminating against them that they believe they are being targeted on the basis of a prohibited ground.

It is true that different grounds have differing degrees of established meaning. I don't want to take the hate speech analogy too far, but it is an example of a situation in which, when the test that the Supreme Court has come up with—in 1990, in the Taylor decision—is one of whether the victim feels attacked on the basis of deeply felt feelings of vilification or calumny, there is a subjective component to it. It's true that tribunals and courts have struggled with a definition that is more a subjective than an objective one, but I would suggest that it's a difference of degree in many cases, as opposed to a difference of kind.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

There's an argument to be made that it is a large degree when you talk about it as a basis for prohibited grounds, but it has little meaning beyond a kind of internal understanding of something that has happened. I think that's one of the reasons my constituents are concerned about the legislation and one of the reasons we need to take another look at this bill and this definition. It does not seem to address adequately what Canadians would like to see in their legislation.

I understand that Mr. Garrison would like to see this pass, but I'm concerned when I read that his interest is in getting it passed so that the tribunals and the courts themselves can define it. I think that's the job of Parliament, and if we're not able to adequately define this, we shouldn't be passing the legislation, because we're not doing the job we need to do here.

I'm a bit concerned because it comes down to the point that unless someone is willingly and openly making a statement, nobody has an idea whether they have determined what their gender identity is. We certainly see that there are going to be some problems with that.

Many of the definitions we hear are being made up by those who lobby on this; they're not definitions in law and they're not found in legal documents. I have some concerns about creating expressions as we go that don't have definition and then trying to get the courts and the human rights tribunals or commissions to put definitions to them.

I don't know whether anyone else has anything to speak to on this issue.

[The Chair, Conservative, Dave MacKenzie]

Go ahead, Mr. Rathgeber.

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

I don't want to ignore Mr. Casey's question as to where my proposed definitions came from.

The definition that has been ruled non-votable in amendment CPC-9 comes out of DSM-IV, the Diagnostic and Statistical Manual of Mental Disorders. The other two come from psychological websites, and I'm having trouble finding them, but I didn't make the definitions up. I think one was from the American Psychiatric Association journal. The most formal one has already been ruled non-votable, and it's from DSM-IV.

I fully understand why the sponsor of the bill—

[The Chair, Conservative, Dave MacKenzie]

Mr. Rathgeber, this is for clarification. I think you said that amendment CPC-9 cannot be put.

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

Yes, I did say that, and I meant to say amendment CPC-10.

[The Chair, Conservative, Dave MacKenzie]

Okay, it's amendment CPC-10.

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

CPC-10 was the definition that came out of the DSM-IV. Amendments CPC-9 and CPC-8 I found on—

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Chair, I have a point of order. Could you clarify exactly where we are, and what's out and what isn't? I think there's some confusion.

[The Chair, Conservative, Dave MacKenzie]

We're on NDP-2, on page 10.

NDP-1 carried. Everything down to NDP-1.1 is out.

We're now at NDP-2.

[Kyle Seeback, Conservative, Brampton West, ON]

Mr. Chair, could you list the ones that are out, so that we can just go through and cross them out?

[The Chair, Conservative, Dave MacKenzie]

Absolutely.

CPC-2 is out.

[Kyle Seeback, Conservative, Brampton West, ON]

Yes.

[The Chair, Conservative, Dave MacKenzie]

CPC-3 is out.