House of Commons Hansard #96 of the 36th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was atlantic.
Marlene Catterall Liberal Ottawa West—Nepean, ON
Mr. Speaker, I think you will find consent in the House to further defer the vote until Tuesday next week at the end of Government Orders.
Coastal Fisheries Protection ActGovernment Orders
The Acting Speaker (Mr. McClelland)
Is that agreed?
The House proceeded to the consideration of Bill S-5, 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, as reported (with amendment) from the committee.
David Anderson Liberalfor the Minister of Justice
moved that the bill, as amended, be concurred in.
(Motion agreed to)
Canada Evidence ActGovernment Orders
The Acting Speaker (Mr. McClelland)
When shall the bill be read the third time? By leave, now?
David Anderson Liberalfor the Minister of Justice
moved that the bill be read the third time and passed.
Eleni Bakopanos LiberalParliamentary Secretary to Minister of Justice and Attorney General of Canada
Mr. Speaker, Bill S-5 deals with several issues of interest to persons with disabilities. This government fully recognizes that it has an important role to play in ensuring that Canadians with disabilities are treated as full and equal participants in the mainstream of our society.
In December 1995, the Standing Committee on Human Rights and the Status of Disabled Persons recommended that the legislation be reviewed to reduce the difficulties faced by persons with disabilities.
In October 1997 after conducting extensive consultations from coast to coast, the federal task force on disability issues headed by the hon. solicitor general called upon the federal government to present amendments to the criminal law and to human rights legislation as soon as possible. Bill S-5 honours this request.
The Canada Evidence Act would be amended to recognize in legislation that communication assistance should be provided to any witness who has a communication related disability, and that any sensory method could be used for the purpose of identifying the accused.
The Criminal Code would be amended through Bill S-5 to allow witnesses with communication disabilities to use videotaped evidence. The Criminal Code would also be amended to include a series of changes designed to encourage persons with disabilities to serve on juries.
The Criminal Code would also be amended to create a new offence, section 152.1, prohibiting the sexual exploitation of vulnerable disabled persons so that persons with disabilities will not be sexually exploited. The committee has made recommendations to improve the section. The point is well taken and Bill S-5 as amended responds to the concerns raised.
The other important part of this bill is the package of amendments to the Canadian Human Rights Act which provides protection against discrimination at the federal level. This bill will enhance those protections for all Canadians.
The key element is the addition of an express duty to accommodate to the act. This amendment will require employers and service providers to accommodate the needs of persons protected by the act except where it would cause undue hardship.
The duty to accommodate is of vital importance to persons with disabilities as well as to groups such as religious minorities. The law will help to ensure equal access to the workplace and to goods and services.
There are other important changes to the act. This bill will extend the substantive protections of the law. For example it will prohibit compound discrimination involving discrimination on more than one ground. The law will also allow complaints where there is a discrimination in the provision of goods and services but an individual victim has not stepped forward. This amendment will ensure that there is no discrimination without redress.
There are also important changes to the prescribed remedial actions to make the act more effective. For example, the maximum penalty for pain and suffering would increase to $20,000 from $5,000.
Finally, some of the changes proposed by this bill concern the institutions responsible for enforcing the act. The Canadian human rights commission will report directly to parliament on an annual basis, which will symbolically attest the independence of the commission.
The human rights tribunal will be reconstructed as a smaller permanent tribunal with members with experience and expertise in human rights matters. A small permanent tribunal will adjudicate cases with greater expertise and efficiency. This new tribunal will operate in conformity with the principles of independence and impartiality.
These are some of the highlights of the proposed changes to the Canadian Human Rights Act, the Canada Evidence Act and the Criminal Code. Together these amendments represent an important step forward in our efforts to ensure that every individual is an equal member of our society. That is the commitment of this government.
The amendments contained in this bill are aimed at breaking down the barriers so that persons with disabilities and other individuals and groups can participate as full citizens of our country.
Underlying this endeavour are values which are important to Canadians such as equality, fairness and justice. That is what we are committed to. These are important values and ones which I know all my colleagues support. I am therefore very pleased to commend this bill to members of the House.
Ken Epp Reform Elk Island, AB
Mr. Speaker, I appreciate the opportunity to speak in the debate on Bill S-5.
I cannot resist the temptation when we have a bill labelled S-5 instead of C something, to comment again on the erosion of democracy around here. It is still very offensive to me that instead of coming through the House of Commons which is the house of representational government, all members here having been elected by the people out there, instead of having a bill come from this House, it comes from the Senate.
I do not wish in any way to take two hours to talk about the Senate today. That has already been done. But I think it is appropriate at this occasion to draw attention to the fact once more that we have things turned around here. The Senate should be elected.
In this country we believe in democracy. We believe in representational government. We believe in, as this bill states, the worth of individual people. How is it then that there is a body of people in government that has such tremendous power over our well-being, over the way our rules are designed that govern us, that is not even elected? I find that particularly offensive. The people in my riding and certainly in my home province of Alberta do as well. That has to be changed.
It would be really wonderful if the Senate were truly elected. Then when it came up with a bill labelled S-5, from the Senate of Canada, we would say fine, it is from a parliamentary body that is equal to this place. We would not have to feel that we were somehow being made second class citizens here because a body that has no accountability, at least technically it does not and practically it does not appear to have either, is lording it over us. I cannot help but talk about that.
Then there is a second thing which was so well illustrated here just a few days ago. Even in this House, where members are elected, they are not given the freedom to vote the way they believe their constituents would want them to vote, or the way their hearts and their conscience would demand. Now how do you say this and still stay friendly? We have trouble right here in river city, river city being the city of two rivers, Ottawa. That trouble is due to representational democracy where the reflection of the will of the people of Canada is vested in the power that is given to a very small group of individuals.
I for one am very happy and very proud to be in a party where I am required to represent my constituents. Not only am I permitted to do so, but I am out of step with my party if I fail to do so. That is very important.
I talk about the Senate lacking legitimacy. To a degree what has happened in this place over and over again in this parliament and previous parliaments under Liberal and Conservative governments is the party whips have these clones I guess we would call them. I do not want to refer to a barnyard animal so I will just call them clones. And we know the most famous clone happens to be one of those barnyard animals which makes a baa noise. I will not talk about that at all. It is really unfortunate that we do not have true democracy.
If we had true democracy we would end up with better rules. It is not right for me to say that I am always right. I know that is a surprise to you, Mr. Speaker, but I will confess and admit that. I have on occasion been wrong and I will be wrong again. The strength of society is that when I make an error those around me will point that out. They will say “Sir, you are wrong”. If enough of my trusted friends say that to me, I am quite likely to change my mind.
In fact I changed my mind very recently on an issue when talking with a friend. I believe very strongly in something, not a principle but a process that we were following. This individual told me the process was flawed and gave a reason why the process was flawed. After talking with him for half an hour I told him it pained me deeply to admit it but yes, he was right and I was wrong.
I have to admit that yesterday I made an error. One of my colleagues asked me what the area of a circle is if when one walked around it it was one kilometre in circumference. I computed it. My colleague said he did not think my computation was correct. I said I would check my arithmetic. We worked at it together. I am a math major and I taught math for 31 years. I have to hang my head in shame and say I made a mistake. I actually made a mathematical error and here I am right across the country now via the wonderful television channel CPAC confessing that I made a mathematical error and that my colleague corrected me. Having realized that I was wrong, I admitted that I had made a mistake.
To me that is a strength. When someone can show me evidence that something is wrong then I am really a fool if I do not change my mind. That is really the essence of it.
The real strength of democracy is that if we have true democracy, surely the best and most valuable legislation, that which is best for our society, best for our taxpayers and best for our children will bubble to the surface like cream rises to the top. Or at least it did in my day. Before everything was homogenized and pasteurized and everything the cream would go to the top. The best laws would bubble to the top if we allowed interaction where I would say to my colleagues “You have a vote and I have a vote. Let us discuss the issue. Let us debate it”.
Still on this topic of democratic accountability and true democracy in this country, yes, this bill came from the Senate, but what is going to happen to it here? Will the individual members be able to look at the items in the bill? Will any of them be able to say “This bill has a serious flaw or two and I would like to see it amended”? Will that happen?
I wish it could. I wish it would. There are indeed a few things in here which should be amended. There are some flaws, but the fact of the matter is that our observation and our experience has been that an amendment can be ever so fine but it is turned down.
Even if it is presented in committee it is turned down, not by those who have heard our reasoned arguments, but by the instructions that come down from the minister who says to the members of the committee “Don't approve that amendment”. That is wrong. There is a flaw in our process.
I know the parliamentary secretary is asking whether we proposed amendments to this bill. The answer is no, we did not. Why? I suppose there is perhaps a streak of cynicism setting in with some of our members who say “What's the use? It doesn't happen anyway”.
Maybe that is not what happened here, but it happens over and over again. It certainly has happened in the committees that I have served on. Members work their buns off trying to make good, reasoned amendments. More than once in committees I have convinced members, not only in opposition, but also government members, that an amendment should be adopted.
I taught for 31 years. I think I have a fair ability to judge body language. I know when people are with me or when they are agin me. When members say to me “That is a good amendment”, I know in their heart they would like to vote in favour of it.
When we consider a bill clause by clause in committee those same members say to me “It is a good idea. I agree with you”. They say that to me privately or even across the table in committee, but when it is time to vote they look at their instructions and oppose it.
That is a fundamental flaw in democracy. It results in laws being not as good as they could be or as they should be.
I want to talk a bit about justice. This bill will amend several acts. It will amend the Canada Evidence Act. It will amend the Criminal Code. It will also amend the Canadian Human Rights Act.
There is a lot in this bill that is really valuable and really worthwhile. There is a lot in this bill that is right and that is worthy of our support as representatives of the people who elected us. There are also, as I said, some flaws.
I want to spend a few minutes, since I have lots of time in my intervention today, to speak on the priorities of this government. I find it incredible that the Minister of Justice finds this bill the one that should be brought in before we run out of time in June.
The House will probably break for the summer recess near the end of June. That is our present anticipation. When we look at the number of bills that have to be dealt with and the number of supply days that are left, with only May and June to go, time will go quickly.
I really wish that this government would take an occasion like this to bring forward some substantial bills that the people out there are crying for, that they are demanding and that we need so desperately.
I think, for example, of the misguided justice system in this country. It is not even a justice system any more. I am talking about this specifically because there is a question here about sexual assault. That is one of the things included in Bill S-5.
I am appalled to see conditional sentencing for people who physically and/or sexually attack a fellow citizen. Usually it is a man attacking a woman or an adult sexually assaulting a child. These are horrendous crimes. If I were to choose priorities, would I be talking about these little amendments, as important as they are? Yes, I would. I would spend about 12 seconds on this stuff, pass it and then go on to the important things.
Is it not terrible that in this country a man can actually rape a woman and not serve a single day?
Ken Epp Reform Elk Island, AB
“Unbelievable” my colleague says. Yes, it is unbelievable. It is unconscionable and wrong.
We have asked the Minister of Justice—
Eleni Bakopanos Liberal Ahuntsic, QC
Mr. Speaker, I rise on a point of order. I am sorry, but in all deference to the hon. member I would like to ask what the subject of conditional sentencing has to do with Bill S-5 that we are now in the process of debating.
Canada Evidence ActGovernment Orders
The Acting Speaker (Mr. McClelland)
The Chair was paying close attention to the hon. member and in the Chair's opinion the debate is relevant.
Ken Epp Reform Elk Island, AB
Thank you, Mr. Speaker. It is indeed relevant since this bill does address the question of sexual assault against disabled people. However, we are also talking about the whole justice system. This is part of the government's agenda and it is my job as a member of this Chamber, and as a member of the opposition, to point out not only the flaws in this legislation but also the fundamental flaws in all of the government's priorities with respect to these things.
Under the rules of conditional sentencing a judge may give a conditional sentence to a person convicted of the crime of rape and not even have that person spend a single day in jail. He gets sentenced, but it is a conditional sentence. It might be a sentence where he does some community work or something like that and does not go too far from his house. Those are the different conditions.
To have a law in place in this country where a person can commit such a heinous crime and serve no time is wrong. We have asked the Minister of Justice to amend the Young Offenders Act. We have asked the Minister of Justice to state explicitly that conditional sentencing should not apply to violent crimes.
That would not constitute a great deal of time of the House. I would think the Minister of Justice would be able to bring in an amendment. I would even be surprised if it filled one page in both official languages. The amendment would read that “conditional sentencing does not apply to the crimes of assault, murder and rape”. How many words did that take? That is an amendment about which our citizens are saying “It's about high time”. That is what our government should be doing because it is important and it is a priority.
Even though I am talking today about Bill S-5, which contains matters of sexual assault, I am saying that this government has it wrong. There are some very important things it could do. I am sick of the Minister of Justice saying “Oh, this is a very complex issue”. I am sorry, but it is not a complex issue to say that conditional sentencing does not apply to people convicted of rape. It is straightforward and simple. It should be done and it should be done fast. Our members would certainly support that.
I have some specific statements that I would like to make with respect to Bill S-5. The bill has a lot of good things in it. For example, there is a change to the Canada Evidence Act. The first part of this bill would change that act so that people with physical disabilities can still give evidence before the court. They are not prevented from doing that by virtue of their disability.
There cannot be anyone against that. Here is a person who was a witness to a crime, or perhaps a victim of the crime, and he or she is asked to come and give evidence. Perhaps that person cannot speak. Perhaps that person is blind. Perhaps there are other conditions that would physically make it difficult for that person to provide evidence to the court. This is overdue. This is one of the things that I would support strongly. It would enable people with various disabilities to provide evidence in court.
According to this amendment, it is now incumbent on the court to make sure that every accommodation is made to hear these people, even to the point that if a person is unable to speak certain gestures would be agreed upon that would indicate a yes or a no to questions that asked by counsel. We cannot be against that.
The bill indicates that the Criminal Code will be amended with respect to the protection of disabled people who are assaulted. This one deals particularly with sexual assaults. I wish it would have dealt with the subject more widely. However, in this particular case the bill will amend the Criminal Code with respect to sexual assaults.
Sometimes, by association, I am ashamed to be a man. So many men in our society do such horrendous things to our women and our children. I am not in any way saying that women do not commit these serious crimes. However, it is true that most of them are committed by men.
On the other hand, I am fully committed as a father, as a grandfather and as a husband to guarding and protecting my wife, my children and my grandchildren. My granddaughter Kayla will soon be two. I cannot imagine that anyone would assault her sexually. If I happened to be in the vicinity, they would have one bear to deal with. If grandpa was around I would be able to protect her, right then and there. But what if I am not there? How do we protect those who cannot protect themselves? We do it by our laws.
I would like to see extremely severe penalties for adults and people in positions of power and authority who physically use that power to overcome a weaker person, to assault them, whether it is sexually or in any other way. I do not have much time for those people. I would be very severe with them. The message I am getting from people is: Why are we coddling these guys?
Our first responsibility must be to protect. This bill does not deal specifically with the protection of children. It deals with the protection of people who have physical disabilities. As I have said in the House before, I have a disabled sister. She is not able to speak. She has cerebral palsy and she sits in a wheelchair. This bill deals specifically with my sister and with the place where she lives.
I am totally confident that staff members where my sister lives are loving and caring. I have been very impressed when I have been there. They care for her very lovingly. I am not in any way implicating the staff members where my sister stays. I am simply saying I trust them explicitly. But if there were in such a place a person on staff or otherwise who would attack and assault a person like my sister, confined to her wheelchair, unable to defend herself, not even able to cry for help, are we going to be very easy with that person? No.
This bill, and I am supporting this part of the bill, strengthens that. If a person has not given consent, and obviously my sister would not be able to give consent, there is in this bill a strengthening of the power of the courts to properly convict the attacker on evidence and put them in jail for a term not exceeding five years. Five years for that. It would be longer if I had my way.
That of course is the problem. We deal with these huge numbers and not with individual people. This bill discusses these things and even goes so far as to say that if a person believes the other person has given consent but if that consent has been given because of being inebriated or because of drug use or whatever, then consent is deemed not to have been given and the responsibility lies with the attacker.
Sometimes I despair in our society. I do not know where we ever came from. I sometimes think it all started with cotton pickin' Hugh. He did it to us. He opened up the flood gates to say that our sexual behaviour did not matter. I am here to say it matters and it matters a lot. A person who cannot control his or her sexual behaviour is dangerous and we need to make sure innocent people, people who are disabled, are protected from such people.
It is certainly unfortunate in our society that we have come to the point where we think we can do anything we want. We have even reached the point where there are some in our society who think they can sexually attack the disabled. That is horrendous and I am appalled by it.
I support the part of this motion that states we are going to strengthen our laws in that area.
I need to talk about the amendments proposed to the Canadian Human Rights Act. I am going to be as careful as I can because I want to send out the right message. I would like to read this because this is what this act would put into place in the Canadian Human Rights Act: record.
The purpose of this act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated consistent with their duties and obligations as members of society without being hindered in or prevented from doing so by discriminatory practices based on—
And then there is the list.
What I have read so far we cannot argue with. Certainly in this wonderful country of ours we would promote the equal opportunity of people to do what I have just read, to provide for themselves this life, a life they are able to and wish to have.
That has limitations. This is where it gets a little dicey because I am now going to read the list. These are the bases for discriminatory practices that are prohibited. We cannot discriminate based on race. We cannot discriminate based on national or ethnic origin, on colour, on religion, on age or on sex. I wish they would say gender because sex does imply the behaviour of sex as opposed to gender, which is talking about our maleness or femaleness. We cannot discriminate against people based on sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.
It says the purpose of this act is to extend the laws in Canada which will provide for these people all to basically live their lives to the fullest. There is a problem here. This is not the purpose of the act. We already had Bill C-33 which amended and inserted the words sexual orientation into this. Frankly, there are a couple of categories, and sexual orientation is one of them, that do not fit into this.
The fact is we are talking here about sexual behaviour and it is an imposition of one person's sexual behaviour on another person's interpretation of that.
When we go on to read the bill there are all sorts of rules and regulations that are brought in by the governor in council, the minister and his officials, in order to enforce these rules. I can certainly see where it would be valid for us to say that a person must do, and this bills talks about it, everything possible to accommodate the needs of a person who is disabled.
I have worked with disabled people in the workplace. I have worked with people who are blind. I do not know if members remember, but there was a person working here in the House of Commons as a translator, Mr. Conway, who was blind, a wonderful person and very competent. A person with no eyesight usually develops an exceptionally fine sense of hearing and he did a wonderful job. I had occasion to speak to him.
Yes, it is correct for us to do whatever we can to accommodate a person with physical disabilities in the workplace. I agree also we ought not to be saying to a person they cannot work here because they are the wrong colour or the wrong race. That is unconscionable. We need to ask people if they are capable of doing the job. I agree even to the point of saying we should make some special effort to accommodate those who have disabilities which we need to work together on.
When someone applies for a job as an accountant who happens to be in a wheelchair, I think it is totally appropriate for us to go that extra mile and make sure that office has wheelchair accessibility to all rooms.
If a person is hearing disabled, let us go that extra mile. Let us provide a hearing device or perhaps a teletype unit. That is old age now. It was 25 years ago that we provided teletype devices for people with hearing disabilities.
How do we provide to overcome the disability of a sexual orientation? We all have one. It is an undefined term. It does not mean a thing. So I simply reflect on the fact that the Parliament of Canada, having inserted the words sexual orientation in here without a definition, makes it totally meaningless.
It really does not say to an employer that a person has to be helped because of his or her sexual orientation. We all have one. Like I said, it is meaningless.
There is something else in this legislation that frightens me. The governor in council may make regulations prescribing standards for assessing undue hardship. The parliamentary secretary already said the employer or the landowner must make accommodation to help the person overcome this undue hardship.
This is the regulatory part of government, the part that is not debated in this House. In the next section it says that when these standards are prescribed they shall be published in the Canada Gazette . In the next paragraph it says when such a proposed regulation has been published in the Canada Gazette then there is a time for consultation. If someone has a problem with these new regulations they will have an opportunity to appear before the committee, or before the commission, and to make a presentation and perhaps the regulations and the standards can be altered based on an input from someone else.
Here is the most bizarre thing, and again this is a little flawed. We have not been able to put in a meaningful amendment and get this changed. It says a proposed regulation need not be published more than once whether or not it has been amended as a result of any representations.
This is a serious flaw because people, a lot of employers around the country, read the Canada Gazette . That is their reference book. That is how they guide themselves. That is how they know which laws the government has passed and here it says that we publish the law in its first form and then it may or may not be amended but there is no obligation to publish the amended version. That is wrong. That is an error because basically we could end up changing the law or even rescinding it and not properly inform the people. I have an objection to that.
It says this section applies in respect of a practice regardless of whether it results in direct discrimination or adverse effect discrimination. That is a bit of a technical term but it has to do with the fact that sometimes we can give certain conditions, say for job employment, that would disqualify certain people.
If someone wants to hire a person to drive a bus, implicitly that does eliminate anybody who cannot see or hear. So it is a discrimination in that sense against the disabled person but I do not think anyone in this country, including the people who are not able to see or hear, would object to that. And so that is a matter of interpretation. Where do we actually put it? Where is the line drawn?
It says here that it is not a discriminatory practice for a person to adopt or carry out a special program in order to help those whose disadvantages are in here. I really have a problem with that. This is under the amendment to the Canadian Human Rights Act. I have a great problem with that.
There are those among us, and the Liberals are in this group, who think discrimination is solved by discriminating against somebody else. That is a totally false premise. They are saying that in order to reduce discrimination against, say, a group of a certain race, a quota is established that means those people must be hired and exclude everyone else. I really believe that is, first of all, an insult to these people.
I have been responsible for hiring both as a private entrepreneur and also in my job as a supervisor at the college where I worked. I have hired people. I tried my utmost to hire based on skills and ability to do the job. When I hired a person to work on our dairy farm I wanted that person to have strong hands and strong arms because there is a lot of heavy work involved feeding the cows and lugging the pails of milk and water and all these things. That was very important. I look for the capability to do the job.
When I hired a mathematics instructor I looked at the qualifications of that person. Can that person communicate? Is he or she able to teach? I did not ask their race, gender or any other thing. We have a false premise that says we can correct these wrongs by simply discriminating against those who are in the majority. That is a false premise.
I had a guy in my constituency office who said “All my life I wanted to be in the RCMP. My dad was in the RCMP, my grandfather was. It is something I have really wanted to do as long as I can remember”. Lo and behold he came to my office. Why? He was told do not bother to apply, they are not hiring any of his kind right now. What kind was he? He happened to be a white adult male, intelligent, sharp, physically fit, an excellent quality person to work in our very highly esteemed Royal Canadian Mounted Police. They said “Do not even bother to apply because you have the wrong colour skin and you have the wrong gender”, both of which he could do nothing about. He was discriminated against. There are some who think by doing that they correct other discriminations. Wrong.
The way we correct discriminations is by giving everyone an equal opportunity to become educated, trained, to work, to get to the place where they are the best of the class. They are the ones who will move up and get the jobs they want. Under those conditions this young man would have had the job.
I regret my time is up because I got only half way through what I wanted to say.
Rahim Jaffer Reform Edmonton Strathcona, AB
Mr. Speaker, I do not believe we have quorum and I think it would be in the interests of democracy to have quorum in the House.
Canada Evidence ActGovernment Orders
The Acting Speaker (Mr. McClelland)
Call in the members.
And the bells having rung:
Canada Evidence ActGovernment Orders
The Acting Speaker (Mr. McClelland)
We have quorum.
It is my duty, pursuant to Standing Order 38, to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Etobicoke North, Training for young people; the hon. member for Lévis, Rail transport; the hon. member for Tobique-Mactaquac, Hepatitis C.
Richard Marceau Bloc Charlesbourg, QC
Mr. Speaker, I would like to begin by indicating that I am disappointed about two things. One is, of course, the small number of MPs present across the way. It is very disappointing, especially since this bill is so important to so many of our fellow citizens. During part of the debate, there was only one Liberal present. That is really disappointing.
The second disappointment is about this government's practice of introducing bills in the Senate rather than the House of Commons. The government's legislative measures should be introduced and debated in the House of Commons, where the elected representatives are found, not in a House of unelected members, who are therefore not representative.
As for Bill S-5, I will start right off by saying that the Bloc Quebecois supports this bill at third reading. Its purpose is to enhance the equality rights of the disabled and to amend the Canadian Human Rights Act.
One of the three main objectives of the bill is to amend the Canada Evidence Act and the Criminal Code. The amendments to the Canada Evidence Act will make it possible to use whatever means are necessary to enable a witness who has difficulty giving testimony to do so. This would, for instance, include the use of sign language interpreters for hearing impaired people called on to testify.
There are also certain amendments to the Criminal Code. Clause 2 of the bill creates a new offence, sexual exploitation of a person with disability. This is distinct from the general offence of sexual assault, and is in response to demands from a number of groups representing the disabled, many of whom we met with.
One might wonder, however, and I think this is a very legitimate point, why the sentence is less severe, being a maximum of five years, than in the case of the general offence of sexual assault as set out in section 271 of the Criminal Code. We will see how the case law evolves with respect to this new offence, or whether charges of sexually assaulting disabled individuals will still be tried under the already existing general provision.
Other provisions will finally make it easier for persons with disabilities to serve on a jury. The disabled are full-fledged citizens and wish to share fully in the rights and responsibilities of any citizen. Serving on a jury is a good example.
We are therefore in favour of these amendments, because they will improve access to the criminal justice system for persons with disabilities, and because they are a response to long-standing demands from groups representing the disabled.
Let us now turn to the Canadian Human Rights Act. With respect to the requirement to accommodate needs, this aspect of the bill is the one that has understandably received the most attention, both from persons with disabilities and from federal employers. We will see how existing case law incorporates this new provision.
We hope that the obligation to accommodate needs will lead to better integration of persons with disabilities in federally regulated businesses. This is what many groups of disabled persons that we met with are hoping for and it is a hope shared by the Bloc Quebecois.
We also hope that interested groups and individuals will become actively involved in formulating regulations on the criteria for evaluating undue hardship. No one is in a better position than persons with disabilities and employers—rather than technocrats in their federal government ivory towers—to establish regulations following the passing of this bill.
Finally, and I will be very brief, because I do not want to go on like my colleague before me, I want to speak of the Canadian Human Rights Tribunal.
At second reading and during consideration in committee, we expressed certain reservations about the independence of the Canadian Human Rights Tribunal proposed in the bill.
It is noteworthy that, on February 23, in the matter between Bell Canada and the Canadian Telephone Employees Association, the federal court found the existing human rights tribunal to be unconstitutional because of its lack of independence from the Minister of Justice and the Canadian Human Rights Commission.
We believe Bill S-5 would ensure the tribunal's independence by drawing on the provisions governing Quebec's human rights tribunal. Quebec, I would point out, sets the example in this area.
That said, the proposed tribunal responds to a number of the questions raised by the federal court, and we believe it would have greater independence than the existing tribunal. It would be up to the courts and case law to determine whether this is so.
Therefore, the Bloc Quebecois will support this bill at third reading. I now give the floor over to other members.
Wendy Lill NDP Dartmouth, NS
Mr. Speaker, I rise today to speak to the third reading of Bill S-5. I am pleased to say that the New Democratic Party supports this bill in its third reading.
Bill S-5 is 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.
As the critic for persons with disabilities for the New Democrats I am committed to a legislative process to extend equal treatment for the disabled and I see Bill S-5 as a step in the right direction.
Under Bill S-5 the amendments recommended to the Canada Evidence Act will allow persons with disabilities to participate more fully in the justice process. For example, in a case where a person with a mental disability has the capacity to give evidence in court but has difficulty communicating by reason of a disability, under Bill S-5 the court may order that the witness be permitted to give evidence by a means that enables the evidence to be intelligible. This is an important gain for the disabled.
The court would also be compelled to provide whatever resources necessary to assist the person to give evidence, whether it be a speech therapist, interpreter or mechanical devices for communications purposes.
Under the amendments for a witness who is sight impaired there will be also the opportunity to identify the accused by methods other than sight. For example, when asked in court whether the witness can identify the accused in the court room, a sight impaired witness would be able to use methods other than sight such as voice recognition and scent, and I think these are positive additions to the Canada Evidence Act.
In terms of the proposed amendments to the Criminal Code I endorse the changes which will extend the protection afforded to young people in the courts to persons with disabilities. Although I concur with my colleague from the Bloc, I have concerns about the lesser penalties for sexual assault for persons with disabilities as opposed to non-disabled and this is obviously a concern which remains to be dealt with.
I endorse the amendment which provides support for jurors with physical disabilities and I support the amendments to the Canadian Human Rights Act under Bill S-5 which will work to prevent discrimination against persons with disabilities within the federal sphere.
A key amendment adds a provision that requires employers and service providers to accommodate the needs of persons who are protected under the act.
The duty to accommodate is a concept viewed by persons with disabilities as being essential to their integration and inclusion in society. The concept has been recognized and adapted legislatively through all provincial human rights jurisdictions.
Duty to accommodate affects how we work, travel and communicate. It affects basically all of the fundamental aspects of social, political and economic life for persons with disabilities.
For the past 12 years disabled people have been fighting for a law that provides duty to accommodate in our federal human rights act. It has taken a long time because government agendas have taken precedence over the quality of life of persons with disabilities.
The present bill represents the perspective of the disabled. It provides for a positive duty to accommodate those with disabilities subject to a standard of undue hardship.
Undue hardship is defined with respect to health, safety and cost. It is important that undue hardship be defined. It is important to have a human rights policy base for limitations of undue hardship that will ensure a meaningful duty to accommodate people with disabilities.
This bill is, however, by no means perfect. The bill needs to include the assurance that the human rights system at the federal level is effectively working by ensuring that the training of investigators at the commission level happens.
A further review of the human rights act and the human rights commission system is also needed. The process at the present time is driven by an individual complaint system and that is problematic. Accessibility complaints usually take two years for resolution. Usually resolution comes in the form of one person's complaint being answered. It does not, however, address the same complaint that many others may have across the country. In other words, the bill does not deal with systemic problems. It is a complaint driven process.
In conclusion, Bill S-5 and its gains for persons with disabilities has been a long time coming. There is still a great distance to go in closing the equality gap for the disabled in this country. Bill S-5 is a start and I urge that we move quickly to pass the bill into legislation.
It is our duty to accommodate the dreams and the plans of our disabled citizens. They have as much, if not more, to contribute to this country as anyone. For that reason, I am in support of this first step.
Peter MacKay Progressive Conservative Pictou—Antigonish—Guysborough, NS
Mr. Speaker, I am honoured to follow my colleague from the province of Nova Scotia. I am equally pleased to rise today to participate in the debate on Bill S-5.
This bill, as has been previously mentioned by a number of my colleagues, will amend the Canada Evidence Act and the Canadian Criminal Code with respect to persons with disabilities. It will also amend the Canadian Human Rights Act with respect to persons with disabilities and it will make consequential amendments to a number of acts.
Let me say at the outset that like my colleagues in the Progressive Conservative Party, and I am sure all members of the House, I support this legislation. This is a classic example of non-partisan legislation of which we can be proud. It reflects a spirit that we do not often see in this House.
This bill was adopted by the Senate in December 1997 with one major amendment. That amendment was indeed very important since it dealt with the grounds of discrimination prohibited by section 2 of the Canadian Charter of Rights and Freedoms.
For one reason or another, the original legislation as tabled in the Senate did not address all of the grounds of discrimination prohibited by the charter. The Senate's amendment to correct that situation was very important.
I would suggest that this amendment which was passed by our colleagues in the neighbouring House was a very positive one and I congratulate them for their efforts. It shows that the Senate can, in fact, constructively participate in this process.
As a result, Bill S-5 came before us rectified and consistent with all the provisions of the charter of rights and freedoms.
Finally, my last comment on this subject is that the Senate was very helpful in passing this bill in an expeditious way. It helped to speed the process that is very important to having this piece of legislation in place.
I will move to my comments with respect to Bill S-5 as a whole.
The bill sets out a very important principle and one which we embrace, that is, the attempt to remove the barriers to those who want to participate fully in society, and I am specifically referring to those with disabilities.
This bill is a good example of circumstances where the principle of identical treatment versus equality simply does not always work. For those individuals and groups who are disadvantaged, identical treatment does not always lead to equality. This bill addresses that problem and rectifies it by removing discriminatory barriers to ensure equality. I fully support this principle and the bill in its entirety. In general, it is a very good piece of legislation.
I will first deal with the amendments to the Canada Evidence Act. Clause 1 of the bill will make two amendments to this act. First it provides for the use of any different means necessary to allow a witness who has difficulty communicating by reason of a physical disability to give evidence in a court. For example, the use of a sign translator to help a hearing impaired person testify is a concrete example of how this section will help improve participation for those with disabilities.
Certain problems might arise. With respect to translation, there is the question of who would choose the translator. Would they be chosen by the court or would the person suffering the hearing disability be permitted to provide a translator? In the context of a criminal trial, I suggest this is very important and should be given some specific attention.
The second part of clause 1 will add section 6(1) to the Canada Evidence Act. This new section would allow witnesses to use any sensory means, for example their sense of hearing or smell, to identify an accused person. This would allow a person who is visually impaired to participate fully as a witness or potentially, and sadly, as a victim in a criminal trial. It would allow them to identify the accused.
I have had personal experience in a trial where the victim suffered head injuries and subsequently lost their sight. The accused was not apprehended until 12 years later, at which time the victim was called upon to testify. In that case there was other evidence to consider and there were other witnesses. However, that gives a concrete example of how this new amendment could effectively improve the current situation.
As a whole, these two amendments to the Canada Evidence Act represent a step forward with respect to the use and application of technology in our courtrooms. They remove physical barriers that are present for some people and encourage full participation in our criminal justice system. The justice system and the criminal courtroom itself can often be an intimidating environment, and these are positive changes.
Clauses 2 and 8 of Bill S-5 will amend the Criminal Code of Canada. The most important of these clauses will create a new criminal offence. This provision, which will create section 153.1 of the Criminal Code, recognizes that any person in a position of trust or authority who sexually abuses a vulnerable, disabled person will be guilty of an indictable offence, punishable and liable in prison for a term not exceeding five years or guilty of an offence punishable by summary conviction.
A parallel can be drawn between this new section 153.1 and the section relating to sexual violence against children, the current section 153, which also constitutes an offence. In essence, it is designed to protect a specific and more vulnerable segment of our society.
At first, although I had some reservations that this new section was not strong enough because it results in an offence punishable by a maximum of only five years, it is important to identify specifically the need to protect those with physical and mental disabilities. Such an offence is a morally reprehensible act. The Criminal Code should reflect society's revulsion of such an act. That is why I had the initial reservations with respect to the maximum sentence being only five years.
However, the new section sends an excellent message to those in the population who engage in such horrific activities. It creates a new specific criminal offence to address that.
I want to also indicate that I was pleased to see that the government decided to remove the word “invite” from the description of the offences and replace it by the stronger words “counsels” or “incites”. This I believe is intellectually sound and it makes the offence a much more precise one.
I would like to indicate that I support this new section and the changes to the Criminal Code. I hope it is not going to be used frequently. As a former crown prosecutor, I think what I would tend to suggest is that the current section 271, which refers to sexual assault for anyone, is much broader and calls for a stronger sentence of ten years as opposed to five. The crown attorneys of the land are going to have to make those individual decisions.
Clauses 4 to 7 of the bill also modify the Criminal Code and make it easier for a person with a disability to serve on a jury. Accommodation must be made to enable a disabled person to then be selected as a juror to fulfil their important civic responsibility, although I must say in my experience that I have seen many Canadians who, sadly, reflected an indication that they did not want to be on a jury. But this at least opens that door for those with disabilities who want full participation in our justice system. Again it sends an important message.
Clause 8 authorizes video testimony for disabled individuals who have difficulty communicating directly during a proceeding.
These changes in the Criminal Code I believe are designed specifically for those with disabilities. The changes will enable them to have full access to our justice system, which is something that organizations for the disabled have been long calling for.
My final remarks will address the changes to the Canadian Human Rights Tribunal which Bill S-5 in essence creates by virtue of the legislation. The creation of a tribunal specializing in human rights is certainly welcome and one that has invoked great response and is embraced by members of the House.
The Canadian human rights area is an increasingly complex one and one that has certainly been very litigious over the years.
I would like to raise some concerns, however, about this tribunal, and previous members have spoken of these concerns. For example, the Minister of Justice under the legislation will have a great deal of discretionary power and measures to allow them to intervene or to invoke disciplinary measures on members of the tribunal. The fact that the minister can be so directly involved certainly might raise some concerns about the independence of the tribunal.
Section 485 also brings forward a concern and that is with respect to the necessity that full time members of the tribunal reside in the national capital region. This, on its face, appears to be some form of regional discrimination. Certainly there are people throughout the land who are competent to sit on the tribunal. There are competent individuals throughout Canada and I would suggest this is again something that might be re-thought.
I also regret that the motion put forward by my colleague in the Bloc did not pass at the committee level. That motion proposed that it be mandatory for a member of a tribunal who is coming to the end of his or her appointed term to continue to the end of a particular hearing. That is to say, if they were scheduled to depart and a tribunal hearing had begun, they would be permitted to finish the tribunal hearing. I believe this is something again which could be modified.
Finally, I will refer specifically to the Canadian Human Rights Act and note that clause 14 of the bill, which will modify section 14 of the Canadian Human Right Act, specifically adds an anti-retaliation clause to the act. I believe this is something that is extremely important which did not exist previous to this legislation. An anti-retaliation clause means, in essence, that a person who files a complaint cannot then be open to retaliation or threat of retaliation by a defendant. This again is an improvement over the current legislation.
We in the Progressive Conservative Party of Canada support this legislation. We have always been generally supportive of changes to the criminal justice system for persons with disabilities and I believe that persons with disabilities in Canada will embrace the legislation and benefit greatly from it. It promotes the expansion of access to our justice system and it promotes and expands access to the courts which in many cases can be very intimidating for both victims and members of the public generally. The jury system will benefit from this and the criminal justice system generally will benefit. It also clearly expands human rights in Canada.
For all the reasons I have stated throughout my remarks I support this bill and I am sure all members of this House will do likewise.
Canada Evidence ActGovernment Orders
The Speaker
The question is on the motion. Is it the pleasure of the House to adopt the motion?
