Justice Committee on Nov. 17th, 2016

[Laurie Wright]

I'm not going to be able to go into that level of detail. I do understand, for example, that Professor Ryder testified in the other place with respect to his views on how to support the constitutionality of the bill, so I could refer you to that.

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

Okay, can you please?

That's it.

[The Chair, Liberal, Anthony Housefather]

He will be here on Tuesday, so he can speak to us as well.

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

Thank you.

[The Chair, Liberal, Anthony Housefather]

Are there any other questions, Ms. Khalid? You have another half minute.

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

I think I'm just going to say thank you, and that's it.

I think Mr. Bittle has a question.

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

I'll try to approach it in a different way, as we're all coming at this.

Based on your knowledge, has the Department of Justice heard from any province or territory expressing concerns about the constitutionality of this bill?

[Laurie Sargent]

On that point, obviously Senator Cowan and others have reached out, and the responses received to date have not indicated any significant concerns on their part.

Officials at the Department of Justice reached out in September to start discussions with them with respect to Bill S-201 and its various elements in a little bit more detail. We have not yet received responses.

I want to note, however, that it was clear from discussion that provinces and territories were very interested in the legislation. They could see that it had potential implications for their own human rights legislation, for their own regulation of the insurance industries, and of course for health care. While we weren't necessarily talking about concerns at that time, it seems very important that we speak with officials and ministers to ensure that everyone fully understands some of the implications of this legislation.

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

Here is just a quick—

[The Chair, Liberal, Anthony Housefather]

Maybe do that in the next segment, if it's okay, because we're seven minutes in. I'll start the next Liberal segment with you.

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

Thank you.

[The Chair, Liberal, Anthony Housefather]

Mr. MacGregor.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you, Mr. Chair. I really appreciate the appearance of both witnesses today. I will try to keep this as technical as possible.

I want to go on to the subject of federal criminal law power. We know that criminal law's main purpose is to look at a supposed evil, which may be directed at any kind of form, against any person or organization. If we enact legislation with the purpose of protecting vital public interests, an argument could be made that doing so falls within the jurisdiction of criminal law power.

If we look technically at the bill before us, Bill S-201, and examine the relevant clauses, are you able to tell this committee how federal criminal law power could technically fit within the direct prohibitions that exist in these clauses? It seems to me that a behaviour is being targeted and not really a direct contract. A contract could exist in any kind of business, but this seems to me to be the action and not the end result.

[Laurie Wright]

I think we're probably straying into the realm of more detailed legal advice, as much as you have tried to structure it as a technical question.

What I can say is that throughout the history of the jurisprudence on the criminal law, the Supreme Court has been quite clear that it's a power that needs to be circumscribed in order that it not spill over and start to take up too much of an area of provincial jurisdiction. You therefore have examples of such cases as the reference on the Assisted Human Reproduction Act, which struck out several provisions from that legislation because they were overly concerned with matters to do with regulation of a profession and a business in a province.

[The Chair, Liberal, Anthony Housefather]

Okay. But the provisions leaving it criminal remained in the act. Those were not struck down.

[Laurie Wright]

The provisions that were struck down were the ones that were geared towards putting certain restrictions on how the medical profession carried out its business in the area.

[The Chair, Liberal, Anthony Housefather]

Yes. I just wanted to clarify that.

Go ahead, Mr. MacGregor.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Suppose Bill S-201 is passed in its present form—and we've already had some indications from the provinces that they seem at most ambivalent about it—if you were tasked by the Department of Justice, by the federal government, to defend this bill against a provincial challenge, how would the Department of Justice defend the specific provisions in the first clauses?

[Laurie Wright]

I think again we're probably getting into the realm of something that's more specific than what I am here for, which is to talk about the substance of the bill in technical terms. It would certainly be at the discretion of the minister and Attorney General of Canada to determine the way forward in consultation with her cabinet colleagues.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Then I'll move to the later clauses of the bill, the ones that specifically deal with the changes to the Canadian Human Rights Act.

Does the department feel that the clauses within this part of the bill are enough to give people who may have concerns peace of mind that they will not be discriminated against? Looking at those clauses—because we've heard about a three-legged stool—do you feel that if we're going to remove the other two and just leave this one, technically those protections specified in this bill will stand up against a challenge? Will people still be discriminated against? I want to know whether technically it will stand up against discrimination.

[Laurie Sargent]

Thanks.

Of course, we're not able to express an opinion on that particular topic. I would say that, within the realm of what the Canadian Human Rights Act regulates, which is employment within the federal public service and also within the federally regulated sector—banks, aviation, etc.—this will provide explicit protections. This will provide protections against discrimination in employment in relation to any person who feels they have an allegation and a claim that their employer has either asked them to undergo a genetic test and/or made a decision, a hiring decision, or some other decision, in a discriminatory fashion based on the results of a genetic test.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Does this final section of the bill place the onus on the individual who feels they have been discriminated against to then take action?

[Laurie Sargent]

Within the human rights system that's generally how things work in terms of an actual individual complaints process. The Human Rights Act itself sets out norms that employers and service providers must be aware of, so it also has a role to play in regulating the conduct of businesses and employers. However, you're absolutely right that when an individual seeks to bring a complaint, they have to do so. They come before the commission. The commission has its own powers and abilities to investigate the alleged discrimination. It's a relatively informal process, but again, the burden, as with all discrimination complaints, would rest on the individual bringing it forward in the event they felt that discrimination had occurred.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you.

[The Chair, Liberal, Anthony Housefather]

The floor is yours, Mr. Bittle.