Justice Committee on Dec. 10th, 2020

[The Chair, Liberal, Iqra Khalid]

Thanks, Mr. Moore.

We'll just go to—

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

I have a point of order, Madam Chair.

[The Chair, Liberal, Iqra Khalid]

Yes, Mr. Garrison.

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

There's just a little untruth in what's being said here.

NDP-2 and NDP-3, which were in the amendment package, both propose adding “gender expression”, so the topic we're talking about here was included in the package, and members should have been prepared to deal with it.

We heard testimony on that numerous times in the debate on this bill, so, no, there was no collusion away from the table. I did not see the text of this amendment, but what I did do was continue to advocate for the most disadvantaged, the most discriminated elements of our population, who are transgender and non-binary Canadians. The government said they would listen, and they did listen, but this topic has been in the amendment package from the very beginning.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Garrison.

I'm not sure if that was a point of order, though, so we'll just quickly go to the department to comment on Mr. Moore's question. Then we have Mr. Cooper next on the list, and then Mr. Garrison.

Go ahead.

[Nathalie Levman]

Thank you, Madam Chair.

I would just note that the charter issues or considerations that are raised by the bill are outlined in the charter statement that is available on the department's website.

We do know, based on what the minister has said and even on what some witnesses have said before your committee, that the bill does attempt to strike a balance between the equality and dignity of LGBTQ people on the one hand, and the rights and freedoms of individuals who may choose to receive or provide conversion therapy on the other.

We have to remember that a court's analysis is going to be very much shaped by its interpretation of these provisions. I can't stress enough how important it is that criminal legislation be read narrowly—that is a fundamental principle of statutory interpretation—and with respect to its overall objectives. The overall objective that this bill is trying to achieve is to stop certain types of interventions that we know cause harm—we have evidence of it—and those interventions are designed to change who a person is, their identity, to match societal norms. I anticipate that the legislation's provisions will be interpreted according to those rules.

The fine balance that the legislation seeks to achieve, I would also note, is not just in the actual definition but also in the nature of the offences themselves. I know you're going to turn to that shortly, and I'm sure you'll have a good discussion on the scope of those offences.

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you very much.

Mr. Cooper, I have you next, and then Mr. Garrison, Mr. Virani and Madame Findlay.

Go ahead, Mr. Cooper.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Madam Chair. I'll be brief.

I wish to echo my dissatisfaction of having this dropped upon us at the very last minute, in the middle of clause-by-clause, an amendment that fundamentally changes the bill in terms of the definition, a definition that I believe, based upon quite a bit of evidence before our committee, is already vague and overly broad in its scope. Certainly Criminal Code sections that are vague and overly broad cannot stand. They're contrary to fundamental justice.

Monsieur Fortin, I think, rightfully raised questions about who's going to be captured by this. What circumstances might arise in which this section of the code is going to come down upon them and they're suddenly charged with an offence?

The Supreme Court of Canada, in the Mabior decision, was clear that one has the right to know whether or not the act they're engaging in constitutes a crime, and I don't even know, frankly, at this point, what we're voting on or not voting on, because we have such a change to the language of the definition, a definition that I reiterate is problematic, without the benefit of hearing from witnesses to press them in a substantive way on this substantive change.

On that basis, I won't be able to support the amendment.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Cooper.

We'll now go to Mr. Garrison.

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

Thank you very much, Madam Chair.

I just want to state again that I have certainly been asking questions during all the hearings on this about adding gender expression to this bill, and it was part of this amendment package.

In terms of the—I'm trying to choose my words carefully—objections about not knowing what gender expression means, gender expression was put into the Criminal Code of Canada, in the hate crimes section. It was put into the Canadian Human Rights Act more than five years ago. It is well established in law what these terms mean. We know what they mean.

I guess I'm trying not to use the word “petulant” but that's the word that comes to mind. When you see what's going on in the community with regard to transgender people and non-binary people, this debate is somewhat shameful, I think, and if you doubt that, I'll share some of the—

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

That is ridiculous.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

That is a ridiculous statement.

[The Chair, Liberal, Iqra Khalid]

Hold on, Madame Findlay and Mr. Cooper.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

That is most disrespectful of everyone here. I'm really shocked.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

That's absolutely shameful.

[The Chair, Liberal, Iqra Khalid]

Mr. Cooper, thank you.

Mr. Garrison, I advise you to please choose your words a little bit more carefully.

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

I would like to continue.

I'll volunteer to share the more than 200 personal attacks on me in social media, including threats that I've received this week, for defending the rights of transgender and non-binary Canadians. If any of you think this is not a serious matter in our society, I'll be happy to share those with you. I—

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

I'm sure it's not from anyone on this committee, Madam Chair.

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

Madam Chair, I did not interrupt anyone else here.

[The Chair, Liberal, Iqra Khalid]

Mr. Garrison, the floor is yours.

I'll remind members that there are ways they can get the floor: by raising their hands or raising points of order.

Right now, the floor is Mr. Garrison's. Go ahead, sir.

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

I have no problem with having substantive debate on this, and I accept that there will be differences of opinion, but to say that we don't know what we're talking about, that we don't know what these terms mean.... That's what I'm referring to.

These are well-established terms in law. These are well-established principles that we've established in the Canadian Human Rights Act and in the hate crimes section of the Criminal Code. Therefore, when some members say this makes it more likely not to survive a charter challenge, that's patently false, as these things are already part of rights in Canada and have been for some time.

Thank you, Madam Chair.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Garrison.

I have Mr. Virani and then Madame Findlay.

Go ahead, Mr. Virani.

[Arif Virani, Liberal, Parkdale—High Park, ON]

Madam Chair, I have a couple of points.

The language “gender expression” was injected into Canadian statutes in Bill C-16 in the last Parliament, of which Mr. Cooper, among others, was a member. Again, to purport that people aren't familiar with the term “gender expression” or what it denotes or defines is completely and patently inaccurate.

I reiterate that “gender expression” is used in the actual motion that we're debating right now, which is NDP-2 and my suggested changes to NDP-2. It's also used in NDP-3 and in the final amendment to the preamble. Again, to purport that there is somehow some element of surprise here is patently inaccurate in terms of the documents that are before the committee.

The third point is that somehow it has been imputed that having discussions with other members of Parliament and other parties is somehow untoward. I would put it as a bit of a straightforward fact that in a minority Parliament there are always discussions, as there should be, with other members of Parliament and other parties with respect to where consensus can be achieved.

What has transpired here is that we, as government members—my Liberal colleagues and I—saw an amendment, NDP-2, that referenced “gender expression” but also went beyond that. What we tried to do was find some common ground as to how to ensure that gender expression and the protections that follow therefrom are entrenched in this important piece of legislation, but all the time maintaining the careful balance that this legislation seeks to strike.

If there are those in this committee who have trouble with that sort of approach, I would put it to them that this violates the spirit of co-operative parliamentary functioning in a minority Parliament. Second, the bottom line is—and I hope that all of us believe this—that the rights of trans and non-binary Canadians are as important as those of all the other groups we seek to protect through this bill. That's the motivation behind proposing the amendment.

Thank you, Madam Chair.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Virani.

Madame Findlay, I have you next on the list.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

Thank you, Madam Chair.

I have absolutely no objection, particularly in a minority Parliament, with members of this committee or any committee having discussions with members from parties other than their own. That is the spirit of co-operation and I think that's good. My problem is with selecting those you speak to and leaving others out of the equation, so that they are surprised by what is coming before them. That is a problem. Out of respect for all of us trying to grapple with a difficult piece of legislation, we should all be included in those kinds of discussions, or at least be given some notice, as opposed to a select person or persons being given notice and the rest of us being left to figure it out.

On that note, yes, I am aware that the term “gender expression” is in Bill C-16. What I was trying to understand—and this is probably a question for the Department of Justice officials—is that I don't believe the term “gender expression” is, in fact, defined anywhere in the Criminal Code of Canada. It is used in Bill C-16, but I see no definition there. In fact, I believe it was expressed at the time that it should be left to courts and tribunals to define it.

My question is whether or not the term “gender expression” is defined in the Criminal Code of Canada. Is the term “practice” defined in the Criminal Code of Canada? If they are defined already, that gives us something to go on. If they are not already defined in the legislation, then I have a problem with inclusion in this bill when, in the testimony we have heard from many witnesses.... We all heard the same testimony. Some people wanted it included specifically. Others didn't want it included specifically because they weren't sure what it means.

We are not talking about just any legislation. We're talking about amendments to the Criminal Code of Canada that carry with them criminal sanctions. That is the whole point of contention in this bill. I don't even think it's the overall idea of the bill. It's the fact that we are dealing with criminal sanction against certain behaviours that are in this bill without sufficient definition.

My question is for the Department of Justice officials. Where in the Criminal Code of Canada is “gender expression” defined? Where is the term “practice” defined? I would appreciate those definitions being pointed out to me.

Thank you.