Mr. Speaker, the bill we are discussing is entitled an act to amend the Canada Evidence Act and the Criminal Code in respect of persons with disabilities, to amend the Canadian Human Rights Act in respect of persons with disabilities and other matters and to make consequential amendments to other acts. Interestingly the bill was tabled by the government in the Senate.
The bill was originally tabled in the House by the former minister of justice in April 1997 as Bill C-98 and died with the dissolution of parliament in 1997.
Bill S-5 contains a number of provisions to remove barriers and to ensure the equality rights of persons with disabilities. It also includes some substantive changes to the federal human rights act.
I will highlight some of the contents of the bill as the substance is most worthy. It generally fits with the people agenda of average Canadians that Reformers promote. Reformers always look to expand the bounds of democracy, to help those who need a hand up and may not be able to fully help themselves. The bill largely says how the federal government will behave. It is a statement that extends goodwill and mainstream consideration to a larger group.
Three pieces of legislation will be amended by the bill. On disability issues there is some background worth mentioning. Today more than four million people in Canada, about 16% of the population, have some disability. Canadians with disabilities continue to experience some obstacles to daily living in areas such as employment, transportation and housing where most of us take full participation for granted.
Legislative reform has been advocated by the disability rights movement for almost two decades. At the parliamentary level the issue was raised when the former House of Commons Standing Committee on Human and the Status of Persons with Disabilities actively promoted the equality rights of persons with disabilities. The committee made specific recommendations for legislative reform requiring all federal departments, crown corporations and agencies to review and reform legislation to ensure the inclusion of persons with disabilities in federal programs.
In response to the report the government agreed to undertake a comprehensive review to identify the action required to eliminate these barriers to the social and economic integration of persons with disabilities.
The idea of an omnibus bill that would make simultaneous amendments to a number of pieces of federal legislation to address the concerns of Canadians with disabilities was promoted by the disability community as far back as the late eighties and early nineties.
Today we have that omnibus bill in Bill S-5. The goal was to bring federal laws in line with section 15 of the Canadian Charter of Rights and Freedoms which guarantees the right to equality for persons with mental and physical disabilities.
The Canadian Human Rights Act was enacted in 1977 to provide for an informal process for resolving cases of discrimination in areas of federal jurisdiction. Like most provincial anti-discrimination laws, the act establishes a specialized system of redress whereby discriminatory actions are discouraged by means of education and by ensuring that those who discriminate will bear the costs of compensating their victims. The act applies to all federal government departments, agencies and crown corporations as well as federally regulated businesses and industries such as banking, transportation and communications.
The human rights system essentially operates on a complaint basis. A complaint of discrimination must be lodged with the Canadian Human Rights Commission before the process can go forward. Moreover, the human rights system is self-contained in that there is no direct right to seek damages before the courts for acts of discrimination.
The Canadian Human Rights Commission is the administrative agency responsible for promoting an understanding of and compliance with the act. The adjudicative function under the legislation is carried out by human rights tribunals looking into complaints of discrimination. They have the power to fashion reasonable remedies to address the unique social problems underlying these complaints.
In the Speech from the Throne on October 1, 1986 the then government announced its intention to proceed with amendments to the Canadian Human Rights Act. On December 10, 1992 the former minister of justice, the Hon. Kim Campbell, tabled in the House of Commons Bill C-108, an act to amend the Canadian Human Rights Act. That bill died with the dissolution of that Parliament.
In June 1996 during the last session of the Parliament, one amendment to the human rights act was made, adding sexual orientation as a prohibited ground of discrimination.
This bill completes the long stated goals of inclusiveness that I mentioned. For example, the removal of barriers to facilitate equal access to the Canadian justice system. This has been a longstanding goal of those with disabilities who have been either labelled mentally handicapped or denied methods to assist them to communicate in a court of law.
It was concluded that unless statutory provisions excluding the evidence of these persons was improved, they would continue to be discounted. These could include the removal of barriers to receiving testimony from persons with disabilities; allowing witnesses to use the medium with which they are most comfortable in order to testify in court; allowing individuals with a disability to use alternative methods, such as the voice, to identify the accused; and eliminating discrimination against persons with a disability in the jury selection process. Certainly we have excluded many worthy jurors in the past.
There is particular concern about the people with disabilities who are physically and sexually assaulted but who are unable to obtain the protection of the criminal justice system. The previous legislation I do not think went far enough and amendments in this bill are in response to that.
The bill also amends the Canada Evidence Act. Clause 1 would replace section 6 of the Canada Evidence Act which currently allows witnesses who are unable to speak to give evidence by any means that would make it intelligible. Clause 1 would extend this allowance to persons who have difficulty in communicating by reason of any disability. This change could require the use of sign language or oral interpreters, assistive learning devices or real time captioning.
According to clause 1, persons with mental disabilities who have been determined to have the capacity to give evidence and have difficulty in communicating because of a physical or mental disability could give evidence with appropriate help.
Clause 1 would also allow a witness to give evidence about the identity of an accused either visually or by using a sensory method of identification. This new section would permit the admission into court of voice and touch methods of identifying an accused person. In most cases victims visually identify the accused first in a line-up and then in the courtroom as part of the evidence. However, persons who are blind or who have low vision are often unable to identify an accused in this manner.
The bill also deals with the offence of sexual exploitation. The child sexual abuse provisions of the Criminal Code, section 153 I believe, make it an offence for a person in a position of trust or authority to sexually exploit a young person. They also make it an offence for a person to sexually exploit a young person with whom he or she is in a relationship of dependency.
Clause 2 of this bill would apply the same prohibitions in relation to persons with disabilities. Clause 2 would create a hybrid offence punishable upon summary conviction for a term of imprisonment not exceeding 18 months or upon indictment for a term not exceeding five years.
Clause 2 would also create a new offence, sexual exploitation of persons with disabilities, that would be separate from the general offence of sexual assault.
Part of the reason for creating a new offence separate from the general offence of sexual assault is that specific recognition of the various ways in which persons with disabilities can be sexually exploited would allow individuals to be held criminally accountable for a much broader range of damaging and sexually intrusive behaviour. This proposed offence would be easily recognizable on a criminal record as being one against persons with disabilities in vulnerable relationships as opposed to a generic charge of sexual assault.
The wording in subsections (5) and (6) removes the defence of mistaken belief in consent where that belief was based on the accused's self-induced intoxication or recklessness or wilful blindness. Subsection (6) requires the judge to instruct a jury presented with the defence of mistaken belief in consent to consider the presence or absence of reasonable grounds for that belief.
Clauses 4 through 7 of the bill are designed to facilitate the inclusion of persons with disabilities on juries. Clause 4 would permit a juror with a physical disability who is otherwise qualified to serve as a juror to be accommodated in order to carry out their duties.
Clause 6 of the bill pertains to challenges for cause by the prosecution or an accused. Currently section 638(1)(e) of the Criminal Code permits a juror to be challenged for elimination from the jury on the basis that they are physically unable to properly carry out their responsibilities. Clause 6 would amend this section to prevent disability in and of itself from being a barrier to jury service, particularly if the person with the disability had been accommodated and was able to carry out the role of a juror.
However, disability could be a cause for exclusion where, even with the aid of technical, personal, interpretive or support devices the person was still physically unable to properly perform the responsibilities of a juror. That makes sense. But this could happen for example in a case where a significant amount of visual evidence was involved and where the potential juror was blind. The caveat is reasonableness.
Clause 8 deals with videotaped evidence. The child sexual abuse provisions of the Criminal Code currently allow complainants under 18 to give evidence of a sexual offence by way of videotape so long as the tape has been made within a reasonable time after the offence was committed and provided that the complainant adopts the contents of the videotape during testimony. The intention behind this section is to preserve the evidence of children who might not otherwise recall events that took place months or even years before, and to remove the need for them to repeat their story many times both in and out of court.
Clause 8 of the bill would allow similar videotaped evidence by persons with disabilities who might have difficulty communicating due to that disability.
The next section deals with human rights and the human rights system and clauses 9 and 10 amend the Canadian Human Rights Act. Clause 10 would limit the factors for assessing undue hardship for those of health, safety and cost in providing assistance in those special circumstances. Accommodating special needs is not an absolute right and may not be practical or it may be unreasonably costly in certain circumstances.
These are the same three factors set out in the Ontario Human Rights Code. It has been done in Ontario in this regard. Bill S-5 would allow the governor in council to make regulations prescribing standards for assessing undue hardship.
One or more of the contentious issues surrounding the duty to accommodate is what is meant by cost in determining instances of undue hardship. Some equality seeking groups would prefer not to have any cost factors taken into a consideration of undue hardship. They fear that doing so would create two classes of human rights claimants, those we could afford to treat equally and those we could not. Since cost is to be a relevant consideration in assessing undue hardship, they would like to see it limited to financial cost as is the case under the Ontario Human Rights Code. There is controversy there.
The equality seeking groups find the whole notion of accommodation itself offensive. In their view, notions of accommodation and undue hardship promote a second class version of rights. That is unacceptable to them. They suggest that the idea that the needs of disadvantaged people are special and must be reasonably accommodated presupposes that there is a norm to which people must conform or be considered different or abnormal; such a person's needs must be accommodated but only if they do not cause undue hardship to accommodate.
Moreover, the accommodation approach to achieving equality effectively leaves unchallenged the assumptions, institutions and relationships underlying discriminatory rules themselves. Accommodation permits an employer for example to avoid liability for what otherwise would be held to be a discriminatory practice.
While accommodation will reduce the effects of the same treatment approach to equality in individual situations, it will not alter the overall systemic impact of certain rules. It has been suggested that a better approach might be to hold employers and service providers under the federal human rights act to one standard of equality and then ask them to justify any deviation from that standard, rather than upholding discriminatory practices in attempting to fit people adversely affected by them into a general practice.
That has not been chosen in this bill and probably is too idealistic.
Clause 27 of the bill would restructure the existing ad hoc human rights tribunal panel under the Canadian Human Rights Act. The bill creates a permanent, smaller and expert Canadian Human Rights Tribunal composed of a maximum of 15 members, including a chairperson and a vice-chairperson. Temporary members could be appointed to meet workload requirements.
Appointments to the tribunal would be made on the basis of experience, expertise and interest in and sensitivity to human rights, as well as with regard to the need of regional representation. The chairperson, the vice-chairperson and at least two other members of the tribunal would be required to have certain legal qualifications.
The bill also would provide that the terms of office for both the chairperson and the vice-chairperson could extend during good behaviour for as long as seven years. Other members would continue to hold office during good behaviour for terms not exceeding five years.
Clause 27 contains provisions for remedial and also disciplinary measures which could be taken against any member of the tribunal. It is good to see some accountability measure built in.
Pursuant to clause 27, at any stage after a complaint of discrimination was filed, the Canadian Human Rights Commission could ask the chairperson of the Canadian Human Rights Tribunal to institute an inquiry into it if the commission is satisfied that such action is warranted. The chairperson would respond by assigning a member of the tribunal to hear the case. In instances of complex complaints, perhaps a three member panel could be assigned.
Clause 27 would allow the chairperson to make rules of procedure for tribunal hearings. These rules would cover such things as the summoning of witnesses, the production and service of documents, the introduction of evidence and time limits on hearings and decision making. They could also deal with the addition of parties and interested persons to the proceedings.
Finally, clause 27 would create a new section 52 of the act to allow tribunal members or panels to take measures to ensure the confidentiality of an inquiry where certain conditions existed.
Under section 53 of the current act, if at the conclusion of an inquiry a tribunal finds that the complaint has not been substantiated, it must dismiss the matter. Where however it is determined that the complaint has been substantiated, the tribunal may make an order against the person found to have engaged or to be engaging in the discriminatory practice. This situation would continue under the bill.
Section 57 of the act would also continue to allow any tribunal order, including those newly added to the bill, to be enforced as an order of the Federal Court of Canada.
The bill would repeal sections 55 and 56 thereby eliminating the current review of tribunal structure.
Human rights tribunals may make such specialized orders as compensating the victim of discrimination for any lost wages, for the cost of obtaining alternative services or accommodations, or for injury to his or her feelings or self-respect.
The sections of the act also permit a tribunal to make a special order of compensation where a person is found to have wilfully or recklessly engaged in a discriminatory practice or still to be doing so.
Clause 27 of the bill would also continue to allow compensation for pain and suffering or for wilful or reckless discrimination. However it would increase the maximum penalty dollar amount to $20,000 from $5,000. The rationale is that some provincial human rights laws have no limits on how much money can be awarded to a complainant while others have limits ranging from $2,000 to $10,000. The raising of the limit under the Canadian Human Rights Act would ensure that tribunals had enough discretion to award an amount that was fair in the circumstances.
With respect to the issue of hate propaganda, section 13 of the Canadian Human Rights Act makes it a discriminatory practice to use the telephone or any telecommunications device undertaken to communicate messages which are likely to expose a person or persons to hatred or contempt because they belong to a group identifiable on the basis of a prohibited ground, such as race, national or ethnic origin.
Under section 54 of the act a tribunal is currently restricted to use cease and desist orders where it finds that a complaint has been substantiated.
Clause 28 would expand the order-making powers of tribunals in these cases. It would allow tribunals to compensate victims specifically identified in the discriminatory communication up to a maximum of $20,000 where the discriminatory practice was found to be or to have been engaged in wilfully or recklessly. The tribunal could also order the communicator to pay a penalty of up to $10,000. In considering whether to order a penalty payment the tribunal would be required to consider such factors as the nature and gravity of the practice and the wilfulness or the intent of the communicator. This would not be used lightly.
Clause 28 is a response to the rising incidence of hate crimes around the world. There seems to be a need to deter individuals and organizations from establishing hate telephone lines. Victims of such lines can apply for compensation and offenders can be subjected to a financial penalty to accomplish this deterrence.
Clause 32 of the bill would respond to these requests for accountability by requiring the commission to submit all reports of itself to Parliament through the Speakers of both Houses. The clause is significant in that it would require the new Canadian human rights tribunal to report annually to Parliament on its activities. This would provide some measure of transparency to the tribunal process and would serve to ensure the independence of the tribunal from the commission.
Other noteworthy amendments include the retaliation clause, clause 14, which would make complaint retaliation a discriminatory practice which would be dealt with under the act like any other case of discrimination. The idea seems to be that the anti-discrimination system created by the Canadian Human Rights Act would be better suited than criminal courts to deal with these types of cases.
The introduction of such long awaited amendments to the Canadian Human Rights Act has not been met with unanimous applause as one might expect. While many of the amendments are clearly perceived as positive, in particular those pertaining to the creation of an expert permanent tribunal, most attention seems to be focused on what is missing from the package. The same appears to be true of the reaction of the disabled community to the proposed amendments to the Canada Evidence Act and the Criminal Code.
With respect to the Canadian Human Rights Act, the bill does not deal with the issue of same sex benefits or with the mandatory retirement provisions in section 15(c) of the act. There are calls for amendments to expand the jurisdiction of the Canadian human rights commission to deal with dissemination of hate messages in any form, telephone mail or the Internet whether exported or imported. There are recommendations that the act be updated to respond to the transmission of hate messages and specifically that Holocaust denial be defined as constituting hate propaganda under the act.
We need to continue our evaluation of the existing federal human rights system's ability to promote and protect human rights into the future. There will always be controversy on these matters.
The passage of this legislation is helpful but it is not the whole answer. There is a cultural context of reasonableness, tolerance, common sense and goodwill on which these measures rest. The historical Judeo-Christian ethic of Canadian culture is operative here. Good people can make poor situations work if they want to. Where attitudes change and are adaptable, much can be accomplished beyond mere rules of legislation.
To help the disadvantaged we need an economic engine that will generate the wealth to pay for our desired social programs. The good samaritan of the Bible could not have helped very much if he did not have the money to put his concern into action. The samaritan had his own financial resources which were not someone else's taxes, unlike some of the others who passed by on the road that day.
The point is that right thinking about economics creates the economic engine to pay for the social programs and the very good things that need to be done. We need to have balance and reason. This is a lesson the NDP may never learn and the Liberals are so reluctant to admit.
Reformers care about people. We make every effort to be the voice of average Canadians as we bring the concerns of voters to Ottawa rather than bringing a central Canadian, top down Ottawa agenda back to the community.
Reformers are supporting this bill today. However, I need to comment on the number the bill has been assigned because it has an
S
in front of it. That means it went through the Senate first, which troubles me.
The contents of Bill S-5 are satisfactory as far as they go and we support the majority of amendments to the applicable acts. However, it is not the contents that concern me as much as the process through which this bill came to the House for debate.
Peter Hogg in the
Constitutional Law of Canada
writes:
Although the Constitution Act, 1867 gives to the Senate the same powers as the House of Commons (except that, by s. 53, money bills must originate in the House of Commons), it has to be (and usually is) accepted by opposition as well as government senators that the appointive nature of the Senate must necessarily make its role subordinate to the elective House.
Richard Van Loon and Michael Whittington in
The Canadian Political System
state:
The Senate is not permitted constitutionally to introduce money bills, and in practice it cannot amend or defeat money bills either. (There is still some question as to the constitutionality of Senate amendments of money bills, but in practical terms the Senate does not even attempt to amend them today). Because of the lack of government ministers in the Senate, virtually all government bills are by convention introduced in the House of Commons.
Bill S-7 was originally tabled in the House of Commons by the former justice minister and the current health minister in April 1997 as Bill C-98. The bill died on the order paper with the dissolution of the 35th Parliament.
The current minister could have easily introduced this bill at the outset of the 36th Parliament, as there was not a great amount of legislation for her to be responsible for at the time. Instead the government, for reasons unknown, decided to introduce the bill in the Senate.
We all know how the Senate is currently in a state of flux. Canadians from coast to coast are wondering how effective the Senate really is. Do senators truly understand the needs of average Canadians? Who are they accountable to if they do not represent a specific constituency?
Before I have senators calling me in an outrage at my office, I want to make one point very clear. There are senators who take their job very seriously, work hard for their province and region and who want to make Canada a better place in which to live. That is without dispute. We even have senators with commendable attendance records. Those senators would probably have a good chance of getting elected to that House and should have nothing to worry about by a triple E Senate concept.
Reformers are not upset with the handful of hard workers. We are upset with the majority who look at the Senate as a place to simply collect a paycheque and then proceed to do work unrelated to the Senate. It must be remembered that Reformers have not abandoned their hopes of solving the historical national problem of the Senate. It is unfinished business in nation building and Reformers are committed to Senate reform, not abolition.
As members of the House of Commons, we are here because the majority of our constituents want us to be here. If my constituents are frustrated with my performance they will have their chance to get rid of me. It is quite simple. However, look at how difficult it is to get rid of an unpopular senator, someone who has gone out of the bounds of rules. It is next to impossible.
Members of Parliament do not want to become rubber stamps. We do not want to rubber stamp Bill S-5. The House of Commons is an elected House and legislation should go from here to the other place. Senators who feel they too often rubber stamp bills from here should perhaps line up and support the Reformers who want an elected upper house.
The government House leader's office had indicated to me today that the reason Bill S-5 was not introduced first in the House was that the agenda in the fall was too busy. That stretches credibility. It said that it was essential to get the bill through as quickly as possible so it was started in the Senate.
The elected representatives of the Canadian people sit in the House of Commons, not in the Senate. Canadians do not want their elected representatives relegated to the house of sober second thought. They want government legislation to begin in the House of Commons and then proceed to the other place, not vice versa.
The issue here is the principle of democracy and of good government. I think there is a ring of Liberal arrogance with this move through the Senate with this bill.
I want to conclude that we are supportive of the components of this bill. It will clearly provide the necessary changes to enable persons with disabilities to play a more active role in the justice process, something the disabled community has long been calling for. It provides for ways of redress and is part of a larger quest of Reform to change and update our government institutions to better serve every Canadian.
I am glad to recommend this bill, whatever its shortcomings, to my own community.
