Evidence of meeting #34 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was senate.
A video is available from Parliament.
Senior Policy Advisor, Human Rights Promotion Branch, Canadian Human Rights Commission
Thank you. I can just add a bit more detail to that.
Since genetic characteristics are not an enumerated ground in our legislation, individuals do not file complaints on that basis alone. Therefore, the complaints and inquiries that have come to us are almost always linked to another ground because people recognize those other grounds on the face of the act and genetic characteristics then become a complementary piece for that. People are saying, “I have the genes for this race,” or, “It was discovered I have the genetic marker for this disease”. They have been connected to other grounds in our act, but I cannot say that there has been one that we have rejected specifically because it was only based on genetic characteristics. As the chief commissioner mentioned, if a complaint were to come to us that only cited that ground unrelated to any of the other grounds, we would have to reject it as the law stands today.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
Thank you, ladies and gentlemen, for coming in. I have two questions—basic ones, I hope.
The current Bill S-201 doesn't define what genetic discrimination is. It's my understanding that a previous version of the bill did define it and that the Human Rights Commission had recommended that the definition be removed and that it be left to the tribunal and to the courts to decide how to interpret it.
My question is, why is that? Secondly, would it be beneficial at all or would it be detrimental if parliamentarians were to set a baseline from which courts, tribunals, and in reality our provinces could work with respect to determining what genetic discrimination means?
Senior Policy Advisor, Human Rights Promotion Branch, Canadian Human Rights Commission
Overall, and through the period in which we have been asked to comment on our act, we have remained steadfast that we do not recommend that definitions be included in the Canadian Human Rights Act. One reason for this is that Canadian human rights legislation, like all human rights legislation, needs to be interpreted broadly in order to give effect to the underlying purpose of the act, and that definitions are often limited by the time in which they are prepared. Especially on a topic such as genetic characteristics, which is very rapidly evolving, that rationale becomes more important. We would not want to freeze a definition in time when the science and technology are developing.
Doing as suggested also allows judges to bring the judicial interpretive principle into play when individual cases arise. We very rarely—in fact, I can't recall a time—recommend that a definition be added, but that does not mean that we cannot offer guidance and clarity on the concepts that are covered under our act. In fact, in the legislation you have before you there has been a section that deems discrimination based on a genetic test to be discrimination based on genetic characteristics. Those kinds of clarifications can assist in interpreting our acts.
I hope that's helpful.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
Thank you.
Most forms of discrimination are protected within our Canadian Human Rights Act as well as within various other statutes. The courts have said that these various statutes are given quasi-constitutional status. This bill creates a specific act for a specific form of discrimination, with its own set of penalties.
Do you have any concerns about elevating one specific type of discrimination over others?
Senior Policy Advisor, Human Rights Promotion Branch, Canadian Human Rights Commission
We are not unfamiliar with legislation that has both criminal sanctions attached to it and similar protections under human rights law. For example, sexual harassment is an issue that can be complained about to the Canadian Human Rights Commission, but if the same incidents also make up a sexual assault, then a criminal action can be made on those same incidents. That kind of complementary legislation is not unfamiliar.
We're always concerned with hierarchy of grounds under the Canadian Human Rights Act. We don't want one ground under our act to be subject to different rules from those for any other ground, but because this legislation creates a separate process, under the Canadian Human Rights Act it may not have that same effect.
We are open to further examination of those issues and hope that the committee would look at them, as they do at other issues under the act. The very fact of there being a multiplicity of venues, including the Canadian Human Rights Act, is not unusual wherever Parliament has esteemed that a certain type of behaviour that is more precise needs to be raised to a level of protection of health, safety, or security of the person that provides a need for criminal sanctions.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
Thank you very much for that.
Mr. Oliphant, Senator Cowan, did some provinces or territories highlight the need to coordinate with federal efforts with respect to this specific type of discrimination?
Liberal
Rob Oliphant Liberal Don Valley West, ON
No.
I think we should promote its happening for complementary.... A member of provincial parliament in Ontario has his private member's bill, which he has said complements ours, but right now, that is accidental. We're hoping it isn't accidental, that we do it more intentionally, but right now, I think it is also to respect the provinces, that desire not to do it.
We can't have it both ways; we can't be doing something that some people say is provincial and then tell them to do something. This is a modelling exercise, since we hope to model good behaviour at the federal government level, and other provinces and territories might see it as something they can do as well.
Liberal
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Thank you, Mr. Chair.
Thank you to the witnesses. In particular it's great to see Mr. Oliphant and Senator Cowan. We spent so much time on Bill C-14.
I want to commend you, Senator Cowan and Mr. Oliphant, for putting forward this legislation. It is a fact that Canada is the only jurisdiction in the G7 without legislation to protect individuals against genetic discrimination. Certainly this will go a long way to closing that gap.
I would like to follow up on Mr. Falk's question. Looking at the Canadian Human Rights Act, I am a little unclear as to whether cases have been have been dismissed. I know, for example, if you look at the Canadian Human Rights Act one of the prohibitive grounds of discrimination is disability. Has disability been interpreted in the context of genetic discrimination, and if so, what have the outcomes of those cases been?
Fiona Keith Counsel, Human Rights Protection Branch, Canadian Human Rights Commission
No cases have been decided on this issue under the Canadian Human Rights Act. A case originating in Quebec went to the Supreme Court of Canada where an issue related to genetic characteristics was recognized by the court and linked to discrimination on the basis of disability, so that has been recognized in the jurisprudence.
To go back to your initial question, which was whether or not the commission has dismissed a complaint or decided not to deal with a complaint on the basis of genetic characteristics, as my colleagues explained earlier, the act currently does not list genetic characteristics as a prohibited ground of discrimination. We do not collect statistics on that particular form of discrimination.
If a complaint comes to us and names a ground of discrimination that's already in the legislation, for example, disability, we would deal with it on that basis. But if a complaint comes to us solely on the basis of genetic characteristics we would not deal with it and we would not report it.
Liberal
Rob Oliphant Liberal Don Valley West, ON
Could I add to that?
Because I have a very low level of experience of working in an office with human rights complaints, what typically happened in the Yukon was that a phone call would come in and the receptionist started doing triage and screening. It might get to an investigator but if it wasn't on the list of prohibited grounds it got logged as a call but it didn't get analyzed, so we don't have that data. We would like to have it but that's the way the human rights system....
Because I have very low level experience and they have a high level of experience, I even know what it's like to answer the phone.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
The case that you're referring to, Ms. Keith, was on the basis of the Quebec charter. Is that correct?
Counsel, Human Rights Protection Branch, Canadian Human Rights Commission
That's correct.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
I think the Quebec charter and the court ruled on the basis of a handicap.
Counsel, Human Rights Protection Branch, Canadian Human Rights Commission
I believe that's the language in that legislation.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Yes.
One of the things that is troubling is that in Canada today people are penalized for proactively undertaking testing that could be very beneficial to them over the long term.
Mr. Oliphant, you had referred to the fact that not only are people being penalized, but in many cases they are frankly afraid of seeking this testing for fear of discrimination. I think you referred to something at SickKids hospital in Toronto. Would you care to elaborate a little?
And Ms. Landry, you might want to add to it because I know you alluded to that.
Liberal
The Chair Liberal Anthony Housefather
I have to ask for a brief answer from Mr. Oliphant because we have to get to Mr. MacGregor. We're going to be kicked out of the room shortly.
If it's okay with you, Mr. Cooper, I'd like Mr. Oliphant to answer.
Liberal
Liberal
Rob Oliphant Liberal Don Valley West, ON
I think so, and I think you'll get a better answer from Dr. Cohn than from me because he'll have exact.... I've met with him now five or six times about this issue, and I think he can give you exact scenarios of the way that plays out in both his research work, where people don't even want to get into research projects for drug tests because it now involves those kinds of tests.
We won't have new drugs coming onto the market because people don't want to do that. Then we have a physician in a clinical practice who is arguing with parents to ask them to get the tests so he can do his job, and they step back.
I want to get on the record that the other thing in Canada is that not only is this about the health of Canadians—and that's my primary thing—but biotech industries are emerging that Canada can be a leader in.
I talked to people from two companies. One is Sequence Bio in Newfoundland, which is a world leader on biotech information, and they're going to do a survey of 100,000 Canadians. They are desperate to have this information so they can do that testing. They feel they won't get a sample size big enough if they don't do it. In Quebec BiogeniQ is another company. These are jobs, and these are important issues that we also need to address.
Liberal