Justice Committee on Oct. 27th, 2016

[Chris Bittle, Liberal, St. Catharines, ON]

I'd like to build on something that was commented on by Mr. Falk a few a months ago in The Catholic Register, in which he said that this legislation is forcing people to give up grounds in their personal right to share a bathroom with someone who may not identify with their biological sex.

Could you please comment on that? I believe it's troubling, personally, but I'm wondering if you could comment on those types of views.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

In terms of the concerns that some have expressed in accessing bathrooms or going into...?

I find it troubling as well. I think it's the very fact that questions are raised about concerns in terms of somebody who clearly identifies one way or the other There's a creation of fear of that person going into one bathroom or the other. The fact that we're having this conversation is the very reason that we need to have Bill C-16 in place. I hope, as a society, we will overcome these negative stereotypes and recognize that individuals should be free to be themselves and when they are free to be themselves, our society benefits.

[Chris Bittle, Liberal, St. Catharines, ON]

Thank you.

[The Chair, Liberal, Anthony Housefather]

You have a minute and a half, if you have another question.

[Chris Bittle, Liberal, St. Catharines, ON]

Do you have a question?

[The Chair, Liberal, Anthony Housefather]

Ms. Khalid.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

No, I'm okay, thank you.

[The Chair, Liberal, Anthony Housefather]

Okay.

We have Mr. Garrison then.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Mr. Chair, I am very pleased to be able to join the committee for this session, and I'm very pleased to be able to talk to the minister about this today.

I want to recognize the sense of urgency with which you've adopted your approach to this legislation. Mr. Falk has raised questions that are theoretical, for the future, on what may happen. To me, what is important about this bill is that it addresses what actually happens every day in our society. Mr. Bittle made reference to high levels of unemployment among the transgender community, despite very high education levels in general, and the very severe poverty suffered as a result of those levels of unemployment in the transgender community, plus very elevated levels of violence. So I applaud you for the sense of urgency in which you have brought the bill forward.

This has been before Parliament in one form or another for nearly 12 years, and it has already passed the House of Commons twice, only to die in the Senate—the unelected Senate, I should say. I really do applaud your sense of urgency and I hope we can keep this bill moving.

Today, your framing this in terms of access to justice is very important and perhaps something we neglected in the past. I particularly like your comments that everyone should not have to be an expert in legal interpretation to discover that this kind of discrimination is prohibited. I think that is key. If some of the arguments are made that this is already covered, that everybody already knows this, then I don't think we'd have these levels of discrimination that take place right now. I don't think everyone understands that this is covered by our various forms of legislation.

Also, there are gaps, as we have acknowledged. By forcing transgender people to go into the legal system and argue that they are like other people. but their discrimination is like something else, adds an unnecessary complication to their approach to the legal system. I think that's very important.

I do actually have a question, and I would like us to talk about what the bill will actually do instead of what it doesn't do. This bill doesn't do anything about bathrooms. This is really not about bathrooms.

There are some areas of federal jurisdiction where it will have an impact, such as discrimination in employment and things like banking where, I have to say, the TD Bank and Royal Bank have run well ahead of the government on this. They have very progressive employment relation policies in place. The unions in federal jurisdictions, like Unifor, have taken very progressive policies in helping come up with ways to transition in the workplace. There is one where there may not be as great an impact, just because people are already moving, and we'd be catching up.

In other areas, I would like to talk a bit about two things. One is corrections and immigration detention, where we have had problems with people being placed in dangerous positions as a result of policies. The other is on the question of air travel and the examination of gender at the gate in airports.

I wonder if you have a comment on either of those, and the kinds of changes we might see as a result of this legislation.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

First of all, to echo comments from other members around the table, Mr. Garrison, I commend you for your persistent advocacy in this regard, which is probably one of the main reasons we're sitting around this table.

I share your belief that this is something that needs to be done on an urgent basis, which is not to say that having Bill C-16 become law means that's the end of the work that we have to do. I have the same sense of urgency for the work we need to do after, I hope, this bill comes into place.

There are discussions that we're going to need to continue to have on that urgent basis around how we are going to deal with individual circumstances, whether that be travel for trans people, how we accommodate the identification on forms, or how we accommodate individuals in correctional facilities. These are ongoing discussions that I am committed to having, ensuring that we engage with the appropriate departmental officials and engage with stakeholders to get feedback.

Certainly, in particular cases, whether that be somebody who is in a correctional facility, it's going to depend on the particular circumstances of the individual case. But we need to have those conversations and find where those accommodations have taken place and how we can successfully do that more broadly.

I am committed to ensuring that I engage with my colleagues in government as well as looking to what has already started to happen in the area of identification, whether that be immigration, a border crossing, or otherwise.

[The Chair, Liberal, Anthony Housefather]

You have a little time left if you have another question, Mr. Garrison.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

I do.

My background's in criminal justice. I taught criminal justice 20 years before I came here. One of the gaps in regard to transgender people is actually the collection of good statistics about violence. I wonder if the minister or deputy minister could comment on that gap. We really don't keep hate crime statistics on transgender people in any form that's useful.

[William F. Pentney]

Thank you for the question. I would say it's a subset, but an important subset, of a much bigger question. So much of the criminal justice administration right now that is done provincially, done locally by city police forces, provincial police forces, or the RCMP, is not capturing a lot of data about the way the system is working. We've seen efforts to address that in terms of racialized policing, certainly, and a variety of efforts to gather better data and try to understand what that data tells us about the lived experience of people.

I think this will be another situation where, as it's clarified in law, there's a whole variety of tools and practices that then will have to adapt. The minister mentioned identity documents. There's work federally and work with provinces and territories. We're confident the Canadian Human Rights Commission will take efforts to educate, to work through practical examples, to do more in terms of outreach, and then work with our provincial and territorial colleagues around data on hate crime, on sentencing provisions. You mentioned hate crimes. As you know, on sentencing, as well, much of the work of sentencing judges is not captured in any systematic way. That's not a criticism; it's just the way the system has worked.

The minister was just at a meeting with her provincial and territorial colleagues, and one of the elements of consensus, I think I can say among all ministers, is the need to understand more about what happens in a day-to-day way in the system, and we would include this among others. It's a very important element, but it will flow from clarification in the law, as well.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you, Mr. Garrison.

It is now over to Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you, Mr. Chair.

Thank you both very much for being here today.

Minister, I want to say thank you for bringing this important bill forward and the excellent work on this, and doing so in an expeditious manner. I also recognize Mr. Garrison for the good work he has done. I think this is another step forward in our country's history of doing what we can to make sure that people are not discriminated against.

I want to ask a question. I fully support the bill, there's no doubt about that, but there has been some criticism, some opposition, mentioned that gender identity and gender expression are not commonly understood and they're not defined. Some people have suggested in the past that maybe adding these terms would add vagueness to the law. I don't agree with that, but I would like to hear your thoughts on it.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Thank you for the question. In terms of the definitions for gender identity and gender expression, we haven't, as I said, included definitions in terms of the Human Rights Act. Most of the prohibited grounds do not have definitions save and except disability, and I believe around pardons. There's definition applied around those. But it is to ensure that the protections in terms of discrimination are as inclusive as possible. As the deputy indicated, the Canadian Human Rights Commission potentially will consider providing, in addition to what it already has, a frame around these terms, gender identity and gender expression. But the reality is that discrimination in these areas could take many different forms, and things change, and individual circumstances that need to be taken into account in terms of the discrimination are different. But some guidance potentially could be provided by the Canadian Human Rights Commission.

[William F. Pentney]

May I just add one additional element? Canada is blessed to have a quite remarkable legal search tool called CanLII, which gathers cases from all across the country. This morning I took it upon myself to enter the search term “gender identity” in CanLII, and what I found was 4,091 hits: decisions from Ontario, from courts, from workplace compensation tribunals from the Northwest Territories, and others. I entered the search terms “gender identity and expression” this morning and came back with 2,266 hits.

There is ample jurisprudence working through specific cases and practical examples from human rights tribunals, from courts, from other related bodies. These aren't academic articles and otherwise that are being cited; these are all decisions of one form or another, labour arbitrators or others. So there is an ample body of jurisprudence around what those terms mean that has been worked out case by case in particular circumstances.

That's how human rights law has generally evolved in Canada since 1960 when the first comprehensive law was adopted in Ontario.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much for that. I'm very familiar with CanLII and it's important to get that on the record.

Minister, with regard to gender identity and the definition of gender identity and gender expression, it's not the same as sexual orientation. I just want to be clear on that. I hope you can comment on that difference and the importance of putting it in the list of enumerated factors in the code.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

You want a comment on the definition of gender identity and gender expression and the difference—

[Colin Fraser, Liberal, West Nova, NS]

I would like you to comment on their not being the same as sexual orientation and why it's important to actually enumerate this and not just leave it to a non-exhaustive list, than try to put it somewhere else, maybe under sexual orientation, which some people may think is the same thing.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Well, yes, they are different.

In terms of definitions, gender identity, I know individuals who probably define this better than I can. The definition that we have and we have been speaking to is that gender identity is each person's internal and individual experience with respect to gender. This is their sense of being a woman, a man, both, neither, or somewhere along the gender spectrum.

In terms of gender expression, this is the outward expression of how an individual publicly presents themselves, whether that be in terms of their hair, their body language, their voice, or their makeup.

[Colin Fraser, Liberal, West Nova, NS]

With regard to the search of decisions, and perhaps the deputy minister may be better placed to answer this, do we know of any cases or what body of case law there might be with taking gender identity or gender expression into account as an aggravating factor on sentencing? Do we know if there have been examples of that?

[William F. Pentney]

No, I'm not aware of any specific examples of that, but we can certainly undertake to confirm that. I would hesitate to say we can be comprehensive because of the way in which these matters unfold, but I'm not aware of any cases.

[Colin Fraser, Liberal, West Nova, NS]

I think you're correct, though, in suggesting that there have been many cases that have been reported and are on CanLII. It would be true, as well, that other decisions that weren't reported, perhaps at lower levels, may also include determinations based on gender identity or gender expression. I agree with the point that it's very important to clearly express it, so that lower court judges have that word there that they can use as an aggravating factor on sentencing still.

Thank you very much for your presentation.