Mr. Speaker, I am honoured to rise in the House today to speak at second reading 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 has been chronicled, this bill has been adopted with one amendment from the Senate last December 1997. Before I delve into the whole objective of this particular legislation I would like to outline the principle of this amendment which was adopted in our neighbouring house, the Senate.
This amendment was tabled by Senator Kinsella and dealt specifically with clause 16 of the bill. Clause 16 of Bill S-5 would permit the information relating to the prohibited ground of discrimination to be collected provided that this was done as part of the adaptation of carrying out a special program, plan or arrangement pursuant to section 16 of the Canadian Human Rights Act.
It is an important distinction where special programs are recognized by section 16 to prevent or reduce disadvantages in employment or in the provision of goods and services that are being suffered by a group of individuals on the basis of a certain prohibited ground of discrimination. For one reason or another, this original legislation did not address all of the grounds of discrimination prohibited by section 2 of the Canadian Charter of Rights and Freedoms.
For that reason this amendment to section 16 of Bill S-5 I would suggest is a very positive motion brought forward by a senator in the neighbouring house. Senator Kinsella therefore presented this amendment to rectify the omission which was adopted by the Senate. I congratulate the senators for their participation in this legislation. As a result, section 16 of Bill S-5 which is before us today has been rectified and is consistent with all of the provisions of the federal Canadian human bill of rights.
I would like to move on to Bill S-5 as a whole. The preamble I would suggest sets out a very, very important principle and a philosophy that I am sure all members of the House would embrace. That is the attempt to remove all barriers, “the removal of barriers to their full participation in society” specifically referring to those with disabilities. Certainly accessibility is a noble goal and this legislation takes a giant step in that direction.
This bill, like all Canadian anti-discrimination statutes at the provincial, territorial and federal levels, has this preamble and sets out this principle.
The second paragraph of the preamble also brings our attention to the fact that for individuals and groups who are disadvantaged, identical treatment does not always lead to equality. Again this is a sometimes very difficult principle to understand, but certainly it is an important principle for identical treatment does not always lead to equality.
Many members of this House, and I would suggest unfortunately many of them in the official opposition, will have difficulties with this proposition because identical does not always mean equal. I am curious to see how this reaction will be taken by the members.
The Reform Party members are opposed to the principle of special treatment. They do not seem to understand that equal treatment does not always mean equal. They seem to have a hang-up with definitions, as we have seen with the definitions of “distinct” and “unique”. But surely all members must come to understand that persons with disabilities in the absence of special measures would not always enjoy equality. There is the rub.
This bill certainly is a good example of circumstances where the principle of identical treatment versus equality as embraced by the Reform Party simply will not work. If it does not work here, there is perhaps a larger situation in this country where it will not work as well, mainly the country of Canada.
The third preamble also speaks in a positive way of the necessity of removing discriminatory barriers to ensure equality. This again is in conformity with section 15 of the Canadian charter of rights which provides for the possibility of legislative assemblies to enact legislation to provide for affirmative action programs. May I say that I fully support this principle and I fully support this preamble in its entirety.
The Canada Evidence Act as addressed by Bill S-5 will provide for communication assistance for persons with special communication needs, whether it includes sign language, oral interpretation, apparatuses such as a Bliss board, assistive listening devices and the like. It also allows for persons to have individuals present to assist in their use of these devices when deemed necessary.
Witnesses with disabilities will then be permitted to identify an accused for example by using auditory or tactile methods. This is an important step forward and takes us again into the 21st century with respect to the use and application of technology in our criminal courts.
These aids were not always readily available. I would suggest it is implicitly good that this legislation makes provision for these devices. It will also of course increase the participation of those who are visually challenged in the courtroom. I believe this initiative to that extent speaks equitably to the needs of persons with disabilities and I fully support this.
I also support the principle of the proposals to the effect that they will assist persons in their ability to receive protection from discrimination. Again this is an important aspect of the bill. It stresses that those who may experience discrimination will not experience further discrimination as a result of taking actions to protect themselves. I would suggest that this is something we should all fully support and embrace in this House.
The bill looks at the issue of making our courtrooms more accessible and user friendly. That is a catch phrase that has taken on a life of its own, but I think it adequately sums up what this bill permits.
With respect to the amendments as they pertain to the Criminal Code, Bill S-5 again has a very good principle behind it. The summary that sets out these objectives will provide persons with disabilities greater ability to give testimony in a courtroom specifically by using videotapes. This is presently available for some but this will expand the parameters to allow persons suffering from disabilities to use this method of testimony.
Persons with disabilities would also not be excluded from jury service. If by using assistance they can participate in our criminal justice system as jurors, I believe that this is an implicitly good principle and one which I again embrace fully.
There is also the issue of sexual exploitation of a person with a disability in a dependent relationship. This bill makes specific changes to identify this as a very important change to the Criminal Code.
The Canadian Human Rights Act would be affected with respect to Bill S-5 and adds to the human rights act the duty of accommodation as an obligation to address the needs of persons protected under the act, for example by ensuring that the workplace is wheelchair accessible. I use that simply as one example.
It also requires employers and the providers of services to make accommodations for persons with disabilities unless they demonstrate that this would cause undue hardship. I would suggest that this is a common sense approach to make allowances for persons perhaps in business who may have some reasonable explanation for their inability to accommodate. However, at least it opens the question and the avenue for both sides of the equation.
As a principle I believe this is a good thing in and of itself but there are some questions that this raises. For example, does the provider of the accommodation have the opportunity to establish that he or she has a reasonable justification for not being able to accommodate? Why would he or she have to wait until the complaint is tabled to try to defend this reason?
In essence it may create a reverse onus situation. I would suggest that this may be something that needs to be tempered or looked at at the committee level. The human rights commission would basically be the court of final analysis.
As previously mentioned in my introduction, the bill also amends the Canadian Human Rights Act to recognize that an individual may suffer from discrimination on a number of different grounds at once. These grounds of discrimination are listed at section 2 of the act.
It ensures that all incidents of discrimination will be taken into account by one tribunal and that each instance of discrimination would not necessarily have to be considered in isolation or separately. It would allow for one tribunal to hear a case that pertained to one individual in its entirety. I would suggest that this is a common sense approach.
Bill S-5 also provides for a number of administrative changes. Among these the Canadian Human Rights Commission will report directly to Parliament instead of to the Minister of Justice. Once more I think this is in and of itself a good thing and a great move toward accountability to the Canadian people through through Parliament.
The ceiling for the maximum limit of compensation for pain and suffering or for wilful or reckless discrimination has also been raised from $5,000 to $20,000 in keeping up with the economic climate of this country.
Bill S-5 also reformulates the Canadian Human Rights Tribunal. Like my colleague Senator Kinsella who raised this matter in the Senate, I have some concerns with section 27 of this bill, specifically as it pertains to sections 48 to 53 of the Canadian Human Rights Act.
These sections state that the tribunal will be appointed and there will be a number of members who must have experience, expertise, interest and sensitivity to human rights. This is indeed a welcome suggestion but my concern lies in the fact that the amendments will stipulate that members of the tribunal must or should be members of a bar of a province or the Chambre des notaires du Québec. I ask the question why.
We have seen many tribunals and governing boards. I even used the example of a disciplinary committee of most bars where there are lay persons who are participants and members of these tribunals. I as a lawyer myself question why a person would have to be a member of a bar to be on this tribunal. Surely there is enough cynicism out there about lawyers having make work programs for themselves. I see you, Mr. Speaker, may have some doubts about that.
I think this limitation should be studied again at the committee level. There are other administrative tribunals as I suggested that have members who are not members of provincial bars.
The amendment proposed to clause 14 of Bill S-5 modifies section 14 of the Canadian Human Rights Act. Specifically it adds an anti-retaliation clause, something that is unfortunately absent from the Canadian Human Rights Act in its present form. I would say that it constitutes a weakness. An anti-retaliation clause means that persons could be discriminated against if they have filed a complaint and therefore would be open to retaliation or threat of retaliation.
By a complainant not having protection from retaliation a person would certainly be hesitant to file a complaint in some circumstances. There may have to be some legislative fine tuning to define the parameters. That is not to say that this matter should not be approached very cautiously. There is always the concern of false complaints being filed against individuals. We want to be very careful before we tread into this area.
In conclusion, we in the Conservative Party are supportive of this legislation. It seems that the bill deals particularly with tribunals and with the provision of persons with protection from discrimination. It is good to have an opportunity to discuss the issue. Certainly the questions have to be studied at the committee level. We need to hear from witnesses to discuss some of the specifics of the application of the bill, the process it will follow. Generally the criminal justice system and the legislation the bill touches upon will benefit from this initiative.
It further promotes the expansion of access, which is a very important cornerstone of our criminal justice system. It promotes access to the courts, which in many cases can be very intimidating for both victims and members of the public as it pertains to the jury system. It expands human rights which have to be viewed as an implicit good in and of themselves.
For these reasons and the reasons I have stated throughout my remarks, I am as supportive of the bill as I am sure all members of the House will be.
