Evidence of meeting #70 for Public Safety and National Security in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was clause.
A recording is available from Parliament.
Liberal
The Chair Liberal Rob Oliphant
Ms. Wherrett, this obviously would not offend the agreement, or would it?
Acting Assistant Deputy Minister, Portfolio Affairs and Communications Branch, Department of Public Safety and Emergency Preparedness
No, I don't believe it would be contrary to the agreement. Again, the choice of language was to be consistent with the language in the Customs Act, where the term “sex” is used, but interpreted in a manner that is intended to recognize and respect gender identity. We do recognize that the law is evolving in this area and language usage is evolving in this area, but the decision from a drafting perspective was to be consistent with existing language.
Liberal
The Chair Liberal Rob Oliphant
Then I will ask someone from Justice whether this has to be consistent with other legislation or are we in a time when it could be inconsistent.
That might be Mr. Nesbitt.
Counsel, Department of Justice
He did pass the buck.
We see that the term “gender” has not been used frequently in the legislative corpus to date and particularly not in the analogous context. Again, that's why the language of “sex” from the Customs Act was relied on here.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
Despite the fact that it hasn't been used, as Mr. Clement very rightly pointed out, we've now passed a bill, which is now in the Senate, that is going to require us to use it a lot more.
Is there any reason we can't change that, other than it's consistent with the Customs Act? I'll be honest with you, I thought it had to do with a decision that was made by the Supreme Court 20 years ago regarding what sex of officer could do the search. That's something separate.
So the only thing is being consistent with an act that's likely going to have to be changed under Bill C-16?
Counsel, Department of Justice
In terms of the Customs Act authority—and at some point I'll turn to CBSA to describe their transgender search practices—is the point that it does have to be interpreted in a manner consistent with respect for gender identity and expression.
In terms of same sex, perhaps I could turn to CBSA and they could describe their practices.
Sébastien Aubertin-Giguère Director General, Traveller Program Directorate, Canada Border Services Agency
Should a situation arise in which a strip search is required on a transgender or intersex person, the CBSA will provide the individual with the option to choose the gender of the border services officer who would conduct the personal search. The following options are available to the traveller: male officer only, female officer only, or a two-stage strip search for a transgender or intersex person.
Liberal
The Chair Liberal Rob Oliphant
If any caucus wanted to suspend for a moment to discuss this, I would entertain that. I think we'll suspend for just a couple of moments while the caucuses work.
Liberal
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
I have a question and a comment because we've had a lot of talk about when Bill C-16 comes into effect and legislation needing to be changed. Obviously that's new legislation. I guess I have a two-part question. At this point, is gender defined in law? The second question I have—and I'll go back and give you another opportunity to comment on this because I did have a conversation offline on it—is whether “sex” is defined, and whether the courts have spoken to what is defined by “sex”.
Counsel, Department of Justice
Thank you.
With respect to “gender” being defined in law to date, I would just repeat my earlier comment that there are not a lot of examples of the use of “gender” in the statute books to date.
Counsel, Department of Justice
There are not many. There are a few, and to some extent they're used interchangeably, “sex” and “gender”. One example may be the Corrections and Conditional Release Act that speaks both to “gender” and “sex”, and they tend to be used interchangeably.
The fact that there aren't a lot of examples of “gender” on the statute book means that there is some uncertainty in terms of how that will be interpreted and applied. Here, particularly in the analogous context, that's closely akin to the Customs Act where we do rely on “sex” as the language, but again it's interpreted in a purposive manner.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
Is “sex” defined by the courts? Is there a definition of “sex”? If you have someone who is transgender coming to the border, how are you deciding?
Counsel, Department of Justice
Exactly. That's in terms of CBSA's operational practices. “Sex”, in terms of the Customs Act, is interpreted and applied purposively and contextually, not simply in a biological or limited manner. For CBSA, with respect to transgender searches, they provide a choice of officers in terms of the sex or gender of the officers who would be conducting the search of the person, or they would provide a split search option where officers of different sexes would search the person dependingly.
Please correct me, CBSA, if I've misstated anything.
That's an excellent example of where “sex” is used in the legislation and the authority to conduct the search, but in its practice it's applied in a manner that respects gender identity and expression. The intent is the same here, really, with the reference.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
What does it say in the agreement? What term is used in the agreement that we have?
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
I'm fully supportive and cognizant of the issues and concerns that transgender people have when they cross the border, but by the same token, I'm a little worried about making changes here without the opportunity to get a definition of “gender” put into the.... I think we're stepping a little outside of what we want to be doing here in terms of the legislation.
Also, if sex is used in the agreement, the last thing I want would be to give a reason to go back and have to get the agreement renegotiated over changing a term that we're going to have to change when Bill C-16 is passed anyway. There'll be a complete review of all of this legislation so it will be changed when C-16 is passed. Is that correct?
