Evidence of meeting #55 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site.) The winning word was chair.
A recording is available from Parliament.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
To your knowledge, there would be no financial assistance from a federal instance?
Counsel, Human Rights Law Section, Department of Justice
No, there is no financial assistance from the government to complainants before the tribunal.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Would there at least be some sort of a database of experts that could be called or could be made available to a complainant? If something is available, would that assistance be rendered to a complainant?
Counsel, Human Rights Law Section, Department of Justice
Do you mean a government database of experts?
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Yes, of people who would have the type of expertise who could possibly cast some light on this.
Counsel, Human Rights Law Section, Department of Justice
I am not aware of any such database, no. I believe individuals find their own experts.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
But you would agree that it's at great cost.
Counsel, Human Rights Law Section, Department of Justice
You mean to the complainant.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Has a tribunal ever, in extreme circumstances, awarded any kind of funding, or has any department ever funded money for expertise, not even in this kind of a case, to your knowledge?
Counsel, Human Rights Law Section, Department of Justice
Not to my knowledge, no.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Well, quite frankly, what we're doing, Mr. Chair, is taking a situation where the law is clear and the issue is covered and potentially injecting into it a state of confusion that may be detrimental to those we are trying to serve. For this reason, I can't see why at all we would pass the act, never mind any one of a number of amendments. I'll leave it at that.
Conservative
Conservative
Kyle Seeback Conservative Brampton West, ON
Thank you, Mr. Chair.
I've been desperately trying to find the case that we referred to during committee earlier. I think I have it, but of course, I can't find the section that I want when I want it. I'm going to start from the general premise and see if we're on the same page.
My understanding is that as the law currently exists, both gender identity and gender expression are covered under a subset of sex in the code. Is that correct? Do you agree with that position?
Counsel, Human Rights Law Section, Department of Justice
My understanding, based on the tribunal decisions to date, is that complaints brought by transsexuals have been understood to be discrimination under the ground of sex. On the tribunal, both federal and provincial, I have not seen a tribunal decision that has used the term “gender identity” or the term “gender expression”.
You could say there is some expressive element that has been covered in the sense that in both the Montreuil case, which I think was mentioned earlier, and also in the Kavanagh case, those individuals were in the process of transitioning towards their target gender. They were presenting themselves in their target gender, so there is some expressive content in the sense of their dress and so on. That expressive content has been understood by the tribunal as covered under the ground of sex.
Conservative
Kyle Seeback Conservative Brampton West, ON
In this legislation, what we do, in effect, is we have an amendment now to define “gender identity” and to put that definition into the code. My understanding—I don't know if you know or not—is that there has also been an amendment. I don't know if it's being proceeded upon today or not. I'm now thoroughly confused on all of the amendments—like many of us, I'm sure—but there is, or there was, an amendment that would take out gender expression. If expressive elements have already been deemed to be covered by the tribunal, does taking it out really make a difference? Isn't it already there?
I think that's the way I look at it.
Counsel, Human Rights Law Section, Department of Justice
Again, I would just repeat that I can't make predictions as to how the tribunal would interpret a particular term. It's an emerging area of the law.
As you know, provincial governments—in Ontario, for example—have added the terms “gender identity” and “gender expression”. In Manitoba, “gender identity” has been added. Those provincial tribunals will no doubt develop case law.
The other legal point to make is that with respect to all of the other grounds in the bill, the word “expression” is not actually mentioned. With religion, for example, one may express one's religion through the wearing of a veil or some other religious emblem, and that expressive content is understood to be covered under the ground, but again I cannot make a prediction about what the tribunal will or will not cover in a particular situation.
Conservative
Kyle Seeback Conservative Brampton West, ON
But, if, for example, as in the cases we've talked about, expressive elements of gender identity have been determined by a commission to be covered, putting in a definition of “gender identity” and not putting anything in about expression is certainly not going to have the tribunal think that Parliament has said gender expression or expressive elements of gender identity should no longer be covered. I don't think there would be any sort of statutory interpretation that would lead a tribunal to that conclusion.
Deputy Director General and General Counsel, Human Rights Law Section, Department of Justice
Sorry—is it because expression has been omitted that Parliament did not intend to include it? Is that it?
Conservative
Kyle Seeback Conservative Brampton West, ON
That's my question. I don't think it does, but I'm not an expert on statutory interpretation, and I don't know if you are either.
Deputy Director General and General Counsel, Human Rights Law Section, Department of Justice
Without entering too far into the realm of speculation, I think that's correct. The fact that Parliament has chosen not to include it would not be interpreted to mean that expression is not covered.
To get back to your earlier question, obviously it's up to Parliament to decide what it chooses to do, because, as Ms. Stone has mentioned, expressive elements for other grounds are covered without being expressly mentioned. From the perspective of consistency in drafting, to add a specific reference to gender expression when that is not there for the other grounds could create an apparent inconsistency in the way that the grounds are treated in the act, but again, it would always be a matter for the tribunal, and eventually for the courts, to interpret the significance of any such discrepancy.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Thank you, Chair.
I just need some clarification here. If this committee is to adopt NDP-2, you've told me that CPC-8 becomes non-votable. Does the same apply to CPC-9 and CPC-10?
Conservative
The Chair Conservative Dave MacKenzie
It's a little bit confusing, but CPC-8 cannot be carried if NDP-2 is carried. CPC-8 can't be put, nor can CPC-9 if NDP-2 or CPC-8 are carried.
Conservative
Conservative
The Chair Conservative Dave MacKenzie
CPC-10 is consequential to CPC-2 or CPC-5 and CPC-6. Because they have not been carried, it can't be brought forward.