Mr. Speaker, I am happy to have this opportunity to contribute to the debate on Bill C-389, presented by the hon. member for Burnaby—Douglas, which is before us today.
Let me begin by stating that this government is deeply committed to upholding the principles of respect for diversity and equality that are enshrined in Canadian law and are part of the very fabric of our nation.
Our government believes, as demonstrated by our tough-on-crime agenda, that all law-abiding Canadians should be protected from crime in this country. However Bill C-389, which seeks to protect people from various harms based on their gender identity and gender expression, contains provisions that raise concerns as to their technical interpretation and legal necessity.
Let me now proceed to the substance of this bill. This bill proposes amendments to the Canadian Human Rights Act and the Criminal Code. Specifically, it proposes that the undefined terms “gender identity” and “gender expression” may be added to the definition of “identifiable group” in the crimes of hate propaganda, to the deemed list of aggravating factors that can be used to increase the sentence for any crime where motivated by bias, hatred or prejudice and to the grounds of discrimination found in the Canadian Human Rights Act.
In order to inform members further on this issue, I wish to raise certain aspects of this bill that I think merit consideration by all members. While the bill proposes adding gender identity and gender expression, it does not define these terms. This leads to the question of what these terms mean. The bill does not say.
I am not aware of any other country in the world that has used the term “gender expression” by itself in any of its criminal or anti-discrimination laws. I will point out at least three examples: Scotland has hate crime legislation that uses the term “transgender identity”, which is defined; federal U.S. hate crime legislation uses the term “gender identity”, which is defined; and the State of Hawaii, in its hate crimes legislation, uses the term “gender identity or expression”, which is defined in one definition, not two separate ones.
In considering this bill, I believe it also useful to know to what extent our current laws already protect transgender persons so that we may consider to what extent this proposed bill is necessary. In this regard, the Canadian Human Rights Act has already been successfully used to protect transsexuals from discrimination on the grounds of sex.
Both federal and provincial human rights tribunals have already protected transsexuals from discrimination in employment and services, using the current human rights acts. This protection of transsexuals from discrimination using the existing prohibited ground of sex has been upheld by the courts.
I next wish to address the bill's proposal to amend the sentencing provision of the Criminal Code that the bill proposes to amend. Section 718.2(a)(i) of the code begins with the general wording:
(a) a sentence should be increased...to account for any relevant aggravating...circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing...