JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, April 1, 1998

• 1539

[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): All right, we're all set. We're on clause-by-clause consideration of Bill S-5, and I know we're all paying close attention here.

For clause 1, we have an amendment moved by Madame Dalphond-Guiral. It's amendment BQ-1.

(On clause 1)

[Translation]

Mrs. Madeleine Dalphond-Guiral (Laval Centre, BQ): I propose that we add, after the word "witness", the words "and the accused" in order to give any handicapped person accused of an offence the same rights as the one who is a witness.

[English]

The Chair: So the accused would have the same rights?

[Translation]

Ms. Madeleine Dalphond-Guiral): That's correct.

• 1540

[English]

The Chair: We have with us Yvan Roy from the justice department. It's nice to see you again.

Mr. Yvan Roy (Senior General Counsel, Criminal Law Policy Section, Department of Justice): Thank you.

The Chair: Would you like to respond to that?

[Translation]

Mr. Yvan Roy: Madam Chairman, if I clearly understand the amendment presented by the Bloc Québécois representatives, the intent is to ensure that the accused benefit from provisions that already exist under section 715.1 of the Criminal Code.

The provisions under discussion aim essentially to protect witnesses in cases before criminal courts. The provision aims at protecting victims and witnesses. At first blush, I'm not sure I understand the point of this amendment as it would apply to an accused, since the accused must testify before a jury and is also subject to cross-examination.

In my humble opinion, section 715.1 would not ensure the accused would also benefit from the same protection. But I may have misunderstood the point of the amendment. If that is the case, I apologize. Perhaps some explanations would help us to discuss the matter.

Mrs. Madeleine Dalphond-Guiral: So, I will simply ask my question, you have referred to a section that I am not as familiar with as you are, since I am not a member of the bar. It seems to me that if we agree to make unusual means of communication available to witnesses, we should perhaps provide the same recourse to the accused. Does the section that you referred to already provide the accused with the right to use unusual means of communication? If that is the case, I agree. But if that is not what is provided, then I think, in fact, that this addition should be made. We have a judicial system that aims at upholding the rights of the complainant as well of the accused. We have recently seen how some accused have been treated. Therefore I would like to make sure that this has already been provided for. I will believe you, but it is not obvious to me.

Mr. Yvan Roy: Allow me to give you a more precise explanation.

Ms. Madeleine Dalphond-Guiral: Thank you.

Mr. Yvan Roy: Section 715.2 is essentially intended to allow people with some sort of deficiency to give their version of the facts a short while after the offense was committed, so that the videotaped version could then subsequently be used before a tribunal.

In other words, let's suppose that I am a person with some sort of disability and I have been the victim of sexual assault. I could then, while the assault is still fresh in my mind, appear before a television camera and give my version, which would be recorded on videotape and could subsequently be presented in proceedings before a tribunal. So if I say what happened in giving evidence at a hearing, and if I support the version that I stated on the videotape recording, the tribunal will give it full weight.

The accused is in a different position. The Crown will have to prove that statements that were made to a person in a position of authority or other statements—for example, statements made to the police, were given freely and voluntarily. As for other statements that an accused might have made, they are admissible as evidence in a criminal procedure without having to go through this step, but they are used as evidence against the accused.

The clause under discussion here is intended to facilitate witnesses making a full statement, and not to facilitate statements by the accused, who will eventually have his version of the evidence before a tribunal. This is the reverse process. I fully agree with you that the rights of the accused must be protected, and they will continue to be protected.

The clause under discussion does not deal with the accused; it seeks rather to improve the situation of witnesses. In this context, I would suggest that it would be counter-indicated to include the accused in this provision. Please excuse the expression, but it is not a good "fit". This is not appropriate in this provision.

• 1545

Ms. Madeleine Dalphond-Guiral: All right. Thank you.

[English]

The Chair: Are there any comments, then, on this motion to amend?

Mr. Howard Hilstrom (Selkirk—Interlake, Ref.): I have just one quick question.

The initial recall of the witness is not necessarily precisely accurate, and cross-examination of that witness at a later trial. How would that work if this was a taped testimony right after the crime? Are you suggesting that this would be used in court as the truth, without any cross-examination to determine its truthfulness by a defence lawyer?

Mr. Yvan Roy: No. What you have here in this section is the possibility for the disabled person to give their version so that it's going to be on tape. The crown prosecutor at trial will file the tape. As well, the person who has given the testimony on tape has to be there, has to testify, to the effect that, yes, what you have on the tape is my version. Then that person can and will be subjected to cross-examination.

Mr. Howard Hilstrom: Thank you, Madam Chairman.

(Amendment negatived—See Minutes of Proceedings)

(Clause 1 agreed to)

(On clause 2)

The Chair: Who moves the government motion on clause 2?

Mr. John Maloney (Erie—Lincoln, Lib.): I so move.

The Chair: Who would like to speak to it? Ms. Bakopanos.

Ms. Eleni Bakopanos (Ahuntsic, Lib.): Are we dealing still with proposed subsection 153.1(1)?

The Chair: No, we've just passed it.

Ms. Eleni Bakopanos: No. We've passed clause 1. We're now at clause 2, if I understand correctly.

The Chair: Yes. Sorry, Eleni.

Ms. Eleni Bakopanos: I don't want to speak before proposed subsection 153.1(2). So if we're still dealing with proposed subsection 153.1(1), then I'm not....

The Chair: Go ahead.

Ms. Eleni Bakopanos: There are no comments on the first one? Everybody's in agreement?

I have just given the clerk a version that's different from the one that's in the document everyone received on the amendments. The change we're proposing to the first amendment, G-1, would change “invites” to “incites”.

So we move to amend clause 2 by replacing lines 8 to 12 on page 3 with the following:

dependency and who, for a sexual purpose, counsels or incites that person to touch, without that person's consent, his or her own body, the body of the person who so counsels or incites, or the body of any other person, directly or indirectly, with a part of the body or with an object,

There was a lot of discussion around this by the handicapped and disadvantaged groups, who felt they needed this extra protection if ever they were in a situation where the caregiver or the person who was taking care of them had incited them to sexual touching. There was a little bit of a discussion around whether or not it was necessary to have this particular clause.

The groups who did come made testimony to that effect, so we're proposing as a government to amend that section in order to respond to the need that was seen by the handicapped or disadvantaged community.

I don't know if the officials want to add to that. I asked them also to give us specific examples of where this would apply.

The Chair: I take it that this also then responds to the concerns we have about the way in which this section was drafted. It clarifies it.

Ms. Eleni Bakopanos: We hope it does, yes.

The Chair: Did you have some additional comments?

Mr. Yvan Roy: Madam Chairperson, this amendment seeks to clarify two things that I think were raised on a number of occasions before your committee. They were raised so often that we looked again very carefully at the section and said, well, they're probably right; there's a problem with this section the way it is drafted.

What are we trying to clarify with the amendment? First, the issue of consent. In the proposed section, the way it is before you, before the amendment, you have the words, “without the consent of the person with the disability”.

• 1550

The question has been raised, to what does “consent” apply? Does it apply to the inviting, inciting or counselling, or does it apply to the touching? If it were to apply to the inciting, it is so circular that clearly this is not going to be an offence that can be prosecuted in any way, shape, or form. It was never the intent of the drafters for this to be the gravamen of the offence.

What the amendment makes clear is what we're talking about here—that is, consent applies to the touching, and the touching is done by the disabled person.

The second thing this thing makes clear is the issue of what is meant by inviting, counselling or inciting. It has always been the intent of the drafters that there be a form of urging on the part of the accused for that to be an offence. Otherwise, mere communication can be seen as being enough to commit the offence, which would not be, in our humble view, tolerable.

So by removing the word “invite”, which appears to have been the word that was causing most of the problems—it was seen as requiring basically very little—we feel that what was the intent in the first place is well served. It is the inciting, which, as you can well appreciate, means you have some urging on the part of the person.

This is what would be intolerable. We think the disabled community would be well protected with something like this being in the law, with the amendments as proposed.

Thank you, Madam Chairperson.

The Chair: Thank you.

Any other questions on that? Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): You've no doubt read the testimony of Mr. Irwin Koziebrocki, who basically trashed this. The issue at the conclusion of his testimony was that everything you wanted in proposed section 153.1 was covered by section 151. I'd be interested in your response to his analysis.

Mr. Yvan Roy: With pleasure.

The last thing I would want to do is imply that Mr. Koziebrocki, when he testified, was—how should I put it—making the case that this is something that cannot be done as a matter of principle, because quite frankly, his association, the association he was representing before this committee, was involved in the consultations and gave basically their blessing to what was being attempted on the part of the government when the consultations took place.

Basically, what is the government trying to do with this? It's trying to say that someone who is sexually exploited should be protected when that person is as vulnerable as a person who has a disability. That's the purpose of this. These associations, these groups, have told us repeatedly that, on the other hand, they don't want to be treated like children; that although children cannot give their consent to this type of sexual activity, they were adults, and they should be able to do that.

So it's the balancing of those two aspects that we're trying to do with the provision before you.

Mr. Koziebrocki is basically saying that what we are covering here is sexual assault. With all due respect, I would have to disagree with my friend Irwin on this. Sexual abuse is a general category. Sexual assault is obviously a subcategory of sexual abuse. Every sexual abuse is sexual assault, but every sexual assault is certainly not sexual abuse. It's the same thing here with sexual exploitation. The behaviour prohibited here is different from the behaviour of someone who is committing a sexual assault.

Let me use an example to illustrate what I'm trying to tell you, according to the section the way it is now.

I am the caregiver. Mr. Berlin is the disabled person. You're a third party. If, as the caregiver, I am urging Mark to touch you sexually for your sexual gratification, which is what this is covering here, I fail to see where the sexual assault is being committed. Because Mark is not assaulted. He is the assaulting party, to that extent. Since you are consenting to this, you're okay, because the basic notion of sexual assault implies that you're not giving the consent to being assaulted, by definition.

• 1555

Suppose Mark Berlin is disabled and, as opposed to me, is vulnerable and needing a caregiver. The section that we have here is saying that if I am going to Mark Berlin and I'm urging him to do a sexual act on you, but he does not want to touch you, then I have committed an offence. That's an important feature in this, because that is not a sexual assault on his part.

As another example that is again covered by the section, I am urging Mark to touch himself. He is certainly not committing a sexual assault against himself. There is no such thing. But if I'm urging him to do something that he doesn't want to do in order that he is going to get the care he needs from me, I am committing an offence when I do that.

Sexual assault occurs when someone is touching someone else for sexual gratification and that person being touched is not consenting to the sexual touching. If I am fondling a woman who does not want to be fondled, I am committing a sexual assault.

What this is doing here is saying that by inciting him to touch you I am committing an offence. He doesn't want to do that. He's doing that only because I am the caregiver and he does not want to displease me. This is not a sexual assault.

Mr. John McKay: Then why make it limited to people who are “in positions of trust and authority”? Why that qualification? Using that example again, why is it that you are committing a Criminal Code offence only by virtue of your relationship, which is one of trust and authority, as opposed to being a third or fourth party who is dispassionate and is getting him worked up to do that by virtue of his disability? Why the limitation to people who are in trust and authority?

Mr. Yvan Roy: The reason is that from a policy perspective, Parliament would be saying that people who suffer from a disability are deserving of that kind of protection under the criminal law because by definition they are vulnerable with respect to their caregivers.

Mr. John McKay: We are not arguing about the issue of his vulnerability or the absence of vulnerability. We are arguing about the quality of the relationship between the two people. Why is that relationship dependent upon trust and authority? Why can it not be simply a relationship, period, end of sentence?

Let me just go through your examples.

Mr. Yvan Roy: Yes, please.

Mr. John McKay: In A, B and C, the last two are exactly the same. For A as it relates to B, however, you have a limitation in here that says the person is in a position of trust and authority. I understand your policy reason for that, but why can't we use Eleni, who has absolutely no relationship to the dependent or vulnerable person? If she does exactly the same thing you do, you're in the soup but she's not, because she has no relationship of trust or authority in the dependent person's life.

Mr. Yvan Roy: It's precisely because the vulnerability comes from the fact that I'm the caregiver and can therefore exercise power over that person. The vulnerability does not simply come because he is disabled; it comes because the person in the relationship with him can exercise power or can for some reason decide to cause problems for him by withholding care, whether that be medication or something else. That's where the vulnerability really comes into play.

Mr. John McKay: But you're wandering into a legal absurdity here, in that the individual who has trust and authority is subject to being charged, but the person without trust and authority cannot be charged for doing exactly the same behaviour.

Mr. Yvan Roy: Absolutely. I agree with your qualification in the sense that one will be charged and the other will not be charged. That is crystal clear. What I would respectfully disagree with is the qualification that this is a legal impossibility or that it should not be so.

• 1600

You have many examples in the law to the effect that people in situations of vulnerability are to be protected from people who can prey on them—i.e., people who are in a position of affecting their lives through the notion of people—

Mr. John McKay: I understand where you're going. What I'm challenging you on, I suppose, is why is there the limitation? There doesn't seem to be a logical reason for the limitation, because a stranger third party inciting, inducing, or inviting counsel is doing exactly the same behaviour as the person who has a relationship of trust and authority, but one attracts a Criminal Code offence and the other doesn't.

Mr. Yvan Roy: I agree with you completely that on the one hand the person who's not in the position of trust or authority will not be captured by clause 153.1. You have the very same situation with section 153 of the code. It's already there. We are trying to say that people who are in that position should not be using that position in order to get people to do things they don't want to do.

If the disabled person is urged or incited by someone other than the caregiver, that person is in the better position to say “Sorry, I'm not going to do it because you cannot do anything to me”. If I'm someone on the street who's meeting that person and inciting them to do this, why would they do it? They have nothing to gain or fear from me. On the contrary, persons in the position of trust or authority, the caregivers, are in a position to hurt these individuals and the vulnerability is coming from that.

That's why we have this here and that's why you have that in section 153 with respect to children. There is a famous Supreme Court of Canada case, the case of Audet. The person was a gym teacher, and something happened with a child under the age of 14. The Supreme Court of Canada had no problem whatsoever in ruling it was appropriate to charge a person under section 153 and to find him or her guilty.

This person was in a position of power over that child. The child, if it is done with someone else, is in a better position to say “Sorry, I'm not interested”. When you have power or authority over someone, that puts you in a real position of vulnerability. This section is trying to protect these people who are already vulnerable from being preyed on by people who have some power over them.

Mr. John McKay: I understand the policy issue. That's not the issue. What you're setting up is the first round of defence, though, for our friend Berlin. The first round of defence for our friend Berlin is establishing the relationship. On a public policy basis, I understand that you're trying to give a higher duty to those who have authority. But why give him that defence?

Mr. Yvan Roy: That defence being...?

Mr. John McKay: The defence of establishing the relationship in the first place. In a round one of the defence, the defence position is every person who's in a position of trust and authority toward a person. That's where the first argument will come from. The accused is going to say “I'm not in that relationship”.

Mr. Yvan Roy: Very true. But would we want to tell those in the disabled community they cannot be incited by anyone who does not have any power over them from getting into this kind of sexual behaviour? This is not what the disabled community is asking for. It's saying “Protect us from the people who have power over us. Otherwise, we are regular Canadians and we should be treated as such.”

That is why the whole notion of consent was added, which is not present in section 153, with respect to children. Children cannot consent to these things.

In this particular case, the disabled community is saying “No, no, we need to be in a position to consent”.

Mr. John McKay: I understand where you're going.

The second question.... I'm running on here.

The Chair: I have the gavel in my hand.

Mr. John McKay: Okay. Just don't hit me with it.

The Chair: No, I'm just holding it. It makes me feel more secure.

• 1605

Mr. John McKay: On the issue of mental and physical disability, all people with mental and physical disabilities are not created equal. What's curious to me is why you haven't qualified that by some phrasing to the effect, “which impairs their ability to give consent, or to understand what they're being asked to do”. In some respects it treats all people with disabilities the same way, although a disability may be everything from a missing limb right through to....

Mr. Yvan Roy: Not true. That goes to the heart of what this section really is all about, and it is what I'll call that power imbalance between the caregiver and the person with the disability.

Going back to my example, Mark is perfectly aware of what is going on. His disability has nothing to do with a mental disability of some sort. He can give his consent all he wants, and that will never be attacked by anyone. His disability, however, is physical, and I have power over him. I can withdraw his medication. I can decide that I'm not going to clean him when he has a problem later on. Mark, because of that, is not in a position really to say no to me when I am inciting him to do something to you.

In other words, the issue here is not mental disability; it is disability as it produces some vulnerability with respect to people who have power over the person. That is what we're after here. Whether the disability is physical in the sense of someone having an arm missing or something or whether it is mental does not matter. It is the power imbalance that has to be the issue here, and that's what the government and hopefully Parliament will want to protect these people from.

Mr. John McKay: So the argument is based upon the quality of the relationship rather than the quality of the disability.

Mr. Yvan Roy: Yes, that's exactly it.

The Chair: Thanks, Mr. McKay. Mr. Telegdi.

Mr. Andrew Telegdi (Kitchener—Waterloo, Lib.): Let me understand this section. If somebody is working in the hospital in the back ward, if somebody was developmentally handicapped, is consent truly an issue?

Mr. Yvan Roy: Consent to what?

Mr. Andrew Telegdi: To...well....

Mr. Yvan Roy: Well, the consent part of the section here concerns the touching. The touching is done, according to this section, by the disabled. That's where the consent comes into play here.

In other words, there is incitement on the part of the caregiver for someone to do something that they would not want to do.

Mr. Andrew Telegdi: But that's where the problem is. If you're working in a back ward, and you're a developmentally handicapped person, and your deaf person consents, is that person capable of consent?

Mr. Yvan Roy: That takes us to the definition of consent that you have, which is proposed subsection (3). Depending on the condition of the person you're talking about, it may very well be that they cannot give consent. The complainant is incapable of consenting to the activity. That is proposed paragraph 153.1(3)(b), at page four.

So when Mr. McKay was asking me questions, I think I clearly indicated that what we're after is the power imbalance. However, there is certainly a distinction to be made on the ability of some people to give consent or not, and that's what proposed subsection (3) is all about. That person you're talking about cannot give consent in any way, shape, or form. It would be completely unjust for that person to be subjected to this kind of treatment and then be claiming that person has given consent. That cannot be.

The Chair: Thanks, Mr. Telegdi. Mr. Hilstrom.

Mr. Howard Hilstrom: The Criminal Code deals with counselling an offence. In your example, the person over there would have to be kind of working with you a bit, because he's not just going to be a stranger sitting there. So you in effect are counselling a sexual assault against that disabled person. Because as soon as that disabled person touches that other person, even though he doesn't want to, that's a criminal offence against that disabled person.

Mr. Yvan Roy: Well, that's a very good question.

Mr. Howard Hilstrom: My understanding of sexual assault is that any touching is an offence, where there's no consent.

• 1610

Mr. Yvan Roy: It's not clear to me whether, using the example that we were using earlier—I'm the caregiver and I'm counselling or inciting Mr. Berlin to touch you, for instance—

Mr. Howard Hilstrom: Okay, but now we have to clear one thing here.

Mr. Yvan Roy: You're a third person here.

Mr. Howard Hilstrom: But I am willing to be touched.

Mr. Yvan Roy: Exactly. It is not the—

Mr. Howard Hilstrom: I want to be touched, and you and I are working together to get that disabled person to touch me. As soon as that happens, under the Criminal Code that will be a sexual assault against that disabled person because he doesn't want to touch me.

Mr. Yvan Roy: I am certainly not sure that it is. We have had that debate among ourselves. I think the weight is going in favour of no, there is no sexual assault. Why? Because the notion of sexual assault implies that the person who is receiving the “benefit” of this does not want to. Mark is only touching you. He's not the one who is being touched. I mean, by definition, you have a sexual assault when someone is being touched without wanting to be touched. He is touching; he is not being touched.

Mr. Howard Hilstrom: Okay, I appreciate your testimony. I disagree, but....

Mr. Yvan Roy: Well, there are others with you.

Mr. Howard Hilstrom: I thank you, Madam Chair.

The Chair: Shall amendment G-1 carry?

Ms. Eleni Bakopanos: Amended amendment G-1, right?

The Chair: No, why don't we call it amendment G-1(a)?

Some hon. members: Yes.

Ms. Eleni Bakopanos: Okay, let's be clear.

The Chair: So we have a new amendment G-1 that is now called amendment G-1(a). Amendment G-1 is withdrawn.

(Amendment agreed to—[See Minutes of Proceedings])

(Clause 2 as amended agreed to)

(Clauses 3 to 7 inclusive agreed to)

(On clause 8)

The Chair: Next we have clause 8 and amendment BQ-2. I think this is similar to your original one.

[Translation]

Ms. Madeleine Dalphond-Guiral: Yes.

[English]

The Chair: Did you have any further comment on that?

[Translation]

Ms. Madeleine Dalphond-Guiral: I withdraw it following our expert's learned comments.

[English]

The Chair: Amendment BQ-2 is withdrawn.

(Clauses 8 and 9 agreed to)

(On clause 10)

The Chair: Next is clause 10, on which we have amendment BQ-3.

[Translation]

Ms. Madeleine Dalphond-Guiral: We propose adding the word "including" after "accommodate those needs", at line 13 on page 7.

Some witnesses have obviously told us that they would like to see the reference to costs dropped. On the other hand, many experts told us that the case law did in effect refer to other elements to assess the needs, including the needs related to equipment and facilities. I think that by adding the word "including" we would be consistent with the present case law. That's it.

[English]

The Chair: Are there any comments?

Mr. Stephen Sharzer (Senior Counsel, Human Rights Law Section, Department of Justice): I do have some comments on this. These are issues that we looked at very carefully. They are issues that were raised earlier, both here and in the Senate proceedings as well.

Our feeling, after looking at the jurisprudence, after looking at the Ontario Human Rights Code, where there is a similar provision with a limited list of factors, is that the list of factors we have there addresses the key issues, and that we have tried to strike a balance with the concern we've had.

The concern is, if you include a provision that allows, as I think this provision would, any number of factors to be read in that, it will dilute the duty of accommodation. I think that is the perspective that has been brought forward by the constituencies who would be served by this particular revision, disability groups and others. So that is the concern.

But from our perspective, the main point is that we think what we have there addresses the key issues, that the factors we have will allow the necessary flexibility to employers to deal with questions of accommodation.

Those are my comments, Madam Chairperson.

The Chair: Thank you.

• 1615

Are there any comments? Mr. McKay.

Mr. John McKay: I'm pretty sure that you've read the testimony. In direct response to a question of the CLC representative, she basically adopted the Canadian bankers' position, which was probably close to an historical event in and of itself. It had to with adding in the phrase “reasonable” and it had to do with such other relevant considerations.

Since these are the two groups that are going to be the most burdened—that's a poor choice of words, but “burdened” is the only thing I could think of offhand—in the duty to accommodate, what is the argument from the department's standpoint that this is phrasing that is unacceptable, given that reason is read into all jurisprudence, regardless of what you say? Why not say it?

Mr. Stephen Sharzer: With respect to the word “reasonable”, I think our view is that it is already in the law. If I could read a quote from the Supreme Court of Canada in the case of Chambly, this is the direct quote:

It is important to remember that the duty to accommodate is limited by the words “reasonable” and “short of undue hardship”. These words do not constitute independent criteria. Rather they are alternate methods of expressing the same concept.

From our perspective, I think the expression that we've chosen implicitly includes the other. In terms, again, of looking at the sorts of submissions that you've heard on this, obviously the disability and equality groups have been saying to go with the provision the way it is. A number of other organizations, representatives of employers, have said perhaps we could add “reasonable” in.

From our perspective, we have a delicate balance that we've achieved between the groups pressing from each side, and if our feeling is that “reasonable” is in the provision, given the kind of balance, given the concerns from either side, why not go with something that addresses those concerns? Reasonableness is in there and essentially takes care of the concerns that have been expressed from the employer and from the labour side of things as well.

Mr. John McKay: So it's your view then that the concerns of the Canadian Bankers Association and the CLC are in fact accommodated by this particular phrasing.

Mr. Stephen Sharzer: Yes.

Mr. Paul DeVillers (Simcoe North, Lib.): On that point, I think if the word “reasonable” were included, it would still be subject to judicial interpretation, which is where we're at now. I think either way it's the same difference.

(Amendment negatived)

(Clauses 10 to 15 inclusive agreed to)

(On clause 16)

The Chair: On clause 16, we're at motion G-2. Mr. Maloney moves G-2. Ms. Bakopanos, do you want to speak to that for us?

Ms. Eleni Bakopanos: It's just replacing the line “objectives for the program, plan or the arrangement”.

The Chair: Oh, it's a typo.

Ms. Eleni Bakopanos: Yes, if I'm not mistaken there.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 16 as amended agreed to)

(Clauses 17 to 19 inclusive agreed to)

(On clause 20)

The Chair: We're at clause 20 and we have government motion number 3. It was moved by the very efficient Mr. Maloney and Ms. Bakopanos will speak to it.

Ms. Eleni Bakopanos: In fact, the officials will. Go ahead.

• 1620

Mr. Stephen Sharzer: This is something we took a look at recently. It's an amendment that seems to make good policy sense to us—and I hope to you as well.

The commission has never made guidelines applicable to a particular case. What they do is make guidelines with respect to the general application of the law. And as I say, this power to make guidelines with respect to particular cases has never been used. As a matter of policy, we thought it made sense to have the commission continue to focus, as they have, on general issues rather than on particular cases, which they can address through the complaint process or mechanism that has been established for that purpose by the act.

Those are my comments, Madam Chairperson.

The Chair: Questions?

I might have one. Just a minute. What we as a group here at the front are wondering is how this impacts on equal pay guidelines.

Mr. Stephen Sharzer: It should not affect the equal pay guidelines because they are made with reference to the general application of the act and are not made with respect to a particular case that's before the commissioner.

The Chair: Okay. Are they binding?

Mr. Stephen Sharzer: The equal pay guidelines? The current law makes them binding and they will remain binding. This will not affect that.

(Amendment agreed to [See Minutes of Proceedings])

(Clause 20 as amended agreed to)

(Clauses 21 and 22 agreed to)

The Chair: At clause 23, we have amendment G-4, moved by Mr. Maloney.

Ms. Bakopanos, would you like to speak to it?

Ms. Eleni Bakopanos: Oh, oh.

The Chair: I can do that now without even looking up. Have you noticed?

Ms. Eleni Bakopanos: It's a typo again, if I'm not mistaken.

The Chair: Okay.

Ms. Eleni Bakopanos: Line 47...I'm looking for exactly where it is.

A voice: There's a dash between “Tri” and “bunal”.

Ms. Eleni Bakopanos: Yes.

The Chair: Okay. It corrects that typo.

(Amendment agreed to)

The Chair: Shall clause 23 as amended carry?

Mr. Derek Lee (Scarborough—Rouge River, Lib.): A question, Madam Chair.

The Chair: Yes?

Mr. Derek Lee: The amendment's fine. It shall carry. I'm happy with that.

The Chair: Thanks, Derek. Clauses 24 through—

Mr. Derek Lee: That's why I intervened. I was happy with the amendment to clause 23 but I wanted to discuss it before it carried.

The Chair: Oh, I see. Go ahead.

Mr. Derek Lee: This is the section that would allow a victimless complaint. Now if I'm not mistaken, this would open the door to a larger grouping of complaints than can now presently come forward to the board. Is that correct? Is that a fair assumption?

Mr. Stephen Sharzer: That is correct.

Mr. Derek Lee: Has anyone ever tried to speculate or calculate or guesstimate how much increased business there would be for the Human Rights Commission as a result of the insertion of this section?

Mr. Stephen Sharzer: More than guesstimating or speculating, we have looked at the issue. And for the past 21 years, you have been able to bring forward complaints under the employment provisions without having an identifiable victim step forward. This type of law has been in effect for the employment provisions for the past 21 years. And we looked at that to see how many complaints might have come forward as a result of that provision and there has not been...we don't have an exact count of them, but nobody can count more of them than there are fingers on one hand.

At the same time, I suppose you might ask why, if that's so, would we proceed to do that in this area? And the feeling is that it should be available in those circumstances, as it is in the employment area, where no individual is willing to step forward, for whatever reasons, whether it's out of fear and so on, to make a complaint.

And I understand the point that's being made with respect to the idea of describing these as “victimless”, but I'm not certain that you can describe them that way. I think if you have a discriminatory policy or practice, there will be victims, but the situation you have here will be that no one has stepped forward. And this is meant to allow the commission or someone else to raise the matter before the commission.

• 1625

In fact, the commission has been out there doing things. If you were to talk to the Canadian Bankers Association and other groups, they would tell you that the Human Rights Commission has been out there on a proactive basis, looking at various questions of access.

For example, automated banking machines is an area. These are accessible to all of us. We can walk up to banking machines, we can walk into a bank, we can walk into public places to see if they're accessible. The commission can do that, too.

So they can get in there. If they determine that there's a problem there, they can initiate a complaint. What they prefer to do, and what they have been doing, is rather than initiating a complaint, they will call up the president of the bank and say, look, we're a bit concerned about access here, and we're coming to take a look; we want to let you know that, and let's work together on this.

Our concern is that there may be circumstances where there is a problem but the commission doesn't have that access to get in and take a look. The question is, are they in a position to receive a complaint, then, with respect to those services where there's a discriminatory policy or discriminatory service, discriminatory practice, even though no identifiable victim has stepped forward?

Sorry—long answer to a short question.

The Chair: It's okay. I have my gavel.

Mr. Lee.

Mr. Derek Lee: In view of the fact that the answer was longer than the question—

Voices: Oh, oh.

Ms. Eleni Bakopanos: You asked a lawyer.

Mr. Derek Lee: —I think that's handled my question.

The Chair: Thanks, Mr. Lee.

(Clause 23 as amended agreed to)

(Clauses 24 to 26 inclusive agreed to)

(On clause 27)

The Chair: We have five Bloc amendments to clause 27. Madame Dalphond-Guiral, go slowly.

[Translation]

Ms. Madeleine Dalphond-Guiral: The proposed amendment aims simply at making the English version as clear as the French version. So I think you would unanimously support it.

Would you like me to read out the English version or do you have the document before you? The amendment is in fact drafted in English. It's fine, isn't it? The meaning is the same, but it is more precise.

[English]

The Chair: Mr. Sharzer.

Mr. Stephen Sharzer: I think you're right. You've identified an inconsistency here.

Ms. Madeleine Dalphond-Guiral: I'm so pleased to hear that.

Voices: Oh, oh.

Ms. Eleni Bakopanos: You get one today, Madeleine.

Mr. Stephen Sharzer: I think we need to resolve that.

The Chair: All right, give her one, and then let's get out of here.

Mr. Stephen Sharzer: Can I make one comment?

The Chair: Certainly.

Mr. Stephen Sharzer: It's been brought to my attention—and I'm not certain about this; perhaps I can pose this question quickly back to you, the research staff of the committee—that does the phrasing “must be members of the bar” mean they must currently be members?

The idea is that you must be at that time. I'm assuming that must mean members of the bar for at least 10 years, that the past tense does mean you still have to be—or not still be, but you must be at the point in time.

Ms. Eleni Bakopanos: Maybe we should clarify that.

The Chair: The way I would read it, it's as long as they've been there for 10 years. So if they're retired or they weren't paying their fees any more, they could still sit.

I don't think that's what we mean, is it? We want them to be current members of the bar and to have had—

[Translation]

Ms. Madeleine Dalphond-Guiral: To still be a member, but to have been so for at least ten years.

[English]

Ms. Eleni Bakopanos: We'd have to put in “in good standing”.

Mr. Stephen Sharzer: Or you could say “must be members of the bar”—

[Translation]

Ms. Madeleine Dalphond-Guiral: I'm including it. That's it.

[English]

The Chair: Okay. So we're going to have a little friendly amendment there.

Mr. John McKay: Are you writing in the phrase, “in good standing”?

The Chair: Do you want to add the phrase, “in good standing”?

In my experience, this is standard. No, you could be a member and not be in good standing.

Mr. John McKay: You can be a member and not in good standing. You could be under a disciplinary—

The Chair: Or you could be a member and be in arrears.

Mr. John McKay: Or in default.

The Chair: They haven't thrown you out yet, but you haven't paid your fees.

Is that okay, Madeleine?

[Translation]

Ms. Madeleine Dalphond-Guiral: Yes, that's fine.

• 1630

[English]

The Chair: Okay. So it would read:

The Chairperson and Vice-chairperson must be members in good standing

—and somebody's going to help me with the French in this in a minute—

in the bar of a province or the Chambre des notaires du Québec for at least ten years, and at least two of the other members of the tribunal must be members in good standing of the bar of a province or the Chambre des notaires du Québec.

I did it in English. In French, the words to be injected would be “en règle”.

Now, what have we just done? I guess we've just accepted an amendment to your amendment, Madeleine.

[Translation]

Ms. Madeleine Dalphond-Guiral: What more could I ask for?

[English]

The Chair: Mr. McKay.

Mr. John McKay: Madam Chair, are you saying the members are people in good standing, but not necessarily the chair and the vice-chair?

The Chair: No, I said the chair and the vice-chair must be members in good standing.

Mr. John McKay: Both are in good standing.

The Chair: Yes, and the members must be members in good standing as well.

Mr. John McKay: Okay, I didn't hear that.

(Amendment agreed to)

The Chair: All right, we'll move to BQ-5.

[Translation]

Ms. Madeleine Dalphond-Guiral: Since members' appointments don't last indefinitely, it could happen that a member's mandate is about to expire while he is handling an inquiry. We are suggesting that the member would then be considered a part-time member until the case before him is completed.

[English]

The Chair: That's interesting.

[Translation]

Ms. Bakopanos.

Ms. Eleni Bakopanos: I would like to draw your attention to the government's amendment, G-5. It may not propose exactly the amendments that you are seeking, but we would also like to see it with the approval of the Chair and not merely as a matter of course.

The Chair: G-5.

Ms. Eleni Bakopanos: It is at the end of page 17 of the amendments.

Ms. Madeleine Dalphond-Guiral: That's fine, perfect. Clause 27.

Ms. Eleni Bakopanos: Madeleine, we are proposing to add a condition that completes what you are saying. Will you, therefore, withdraw your amendment?

Ms. Madeleine Dalphond-Guiral: If it ensures that the member becomes a part-time member.

Ms. Eleni Bakopanos: Just a minute. We have now confused two tribunals.

[English]

A voice: Our amendment is with respect to the employment continuing.

Ms. Eleni Bakopanos: Okay, leave it alone. It's not the same.

The Chair: It's not the same?

Ms. Eleni Bakopanos: No, it's another tribunal. Sorry, Madam Chair.

The Chair: So did anybody have a comment on BQ-5? Stephen.

Mr. Stephen Sharzer: The difference between this particular provision and the provision that we have is that the provision in the bill right now would have the person's ability to carry on subject to the approval of the chairperson. In terms of the thinking behind that, I should add that there are several precedents for this in federal legislation. There's a bill pending before Parliament pertaining to—I can't remember the precise name of the tribunal—the industrial relations tribunal, in which it is conditioned on the approval of the chair.

I think the idea is that if your appointment expires and you're just about to begin a case, from the perspective of the administration of the tribunal it might be better that you have someone else start with that case. Particularly if it's going to take one or two years, it would be better to have that case taken over by a regular member of the tribunal whose appointment has not expired. It's meant to handle situations like that.

In addition, if someone gets an appointment to one of the federally appointed courts, we have some control over what they're able to do elsewhere. But if someone were to be appointed by a province to a provincial court and at the same time wanted to complete work on a case, the chair should have some sort of power to say the person can't go on to complete that work because it's not consistent with the person's duties now that he or she is sitting as a member of that court.

The idea is to ensure that, although this person's membership on the tribunal lapses and he or she continues to sit on the case, there's still some ability in the chair to exercise the duties of chief executive officer of the tribunal, including another provision here, the supervision of the work of the tribunal and members of the tribunal.

I hope that's helpful.

[Translation]

Ms. Madeleine Dalphond-Guiral: I hope that I have understood your explanation properly. I believe that you are within the spirit of my amendment when you propose to give the Chairman some real authority over the people working for him. Is this correct? I see that everybody is indicating yes. So, if I have misunderstood, it's your fault.

• 1635

Ms. Eleni Bakopanos: But the amendment is...[Editor's note: Inaudible] ...in that case. I've understood, Madeleine, because in the version...

Ms. Madeleine Dalphond-Guiral: In your version.

Ms. Eleni Bakopanos: Yes, that's right.

[English]

The Chair: Do you want to withdraw it or do you want to vote on it?

[Translation]

Ms. Madeleine Dalphond-Guiral: Okay. No, that's fine.

[English]

The Chair: Thank you. BQ-5 is withdrawn.

On BQ-6—you're busy today.

[Translation]

We're working hard.

Ms. Madeleine Dalphond-Guiral: We have some reservations about the obligation to live in the national capital. Not that it is not a fine place. That's not it at all. However, I think that the choice of residence is a purely personal matter. If I work in Vancouver, I will certainly not continue to live in Hull.

In my opinion, this obligation should simply not exist. It is up to people to decide whether they want to live in one place rather than in another. When we take a job, we also accept that. I do not see why this obligation is being set out. I think it is superfluous.

[English]

The Chair: The national capital region includes Hull.

[Translation]

Ms. Madeleine Dalphond-Guiral: Oh, my God—

[English]

The Chair: Careful. Suzanne got in a lot of trouble with that one.

Stephen, do you want to respond?

Mr. Stephen Sharzer: I appreciate the concern they're expressing here, but I'd like to point out there are provisions in here that provide that people should be appointed, taking into account regional representation.

The other thing too is that, to my knowledge, what's being contemplated at present is that there will be only two full-time members. Our study of the workload of the tribunal led us to the conclusion that we would need the chair and the vice-chair to be full-time and the rest to be part-time. If that prediction is accurate, only the chair and the vice-chair will be required to reside in the national capital region. The rest can continue to reside wherever it's necessary in the country.

Part of what's at stake here is that quite a number of cases are litigated in Ottawa, and some consideration has been given to that as well. Given it is a body that deals with cases nationally, it was felt in particular that the chair and vice-chair should not be in any particular region, but rather be located in Ottawa. We're in a region too, but the idea is they're not wedded to any particular area. We're also taking into account that the other 13 members will probably be from different parts of the country and there is representation now from right across the country.

[Translation]

Ms. Madeleine Dalphond-Guiral: I would like to know if, since the law obliges full-time members to live in the National Capital Region, there is an obligation to provide a housing allowance?

[English]

Mr. Stephen Sharzer: I'm not familiar with the way—

[Translation]

Mr. Yvan Roy: I could perhaps enlighten you by pointing out that the need and legal obligation to live in a given region is not exclusive only to this tribunal. It very often happens, more often than not in fact, that judges are appointed with residence in a given place, whether it be to the Court of Quebec, the Superior Court or the Federal Court, since this is specified in the Federal Court Act.

As far as I know, it has never happened that a judge received a housing allowance on accepting a position here, in Ottawa, or, for example, for accepting an appointment to the Quebec Court of Appeal in Quebec City or Montreal. The appointee has been responsible for selling his or her house and moving to another place. Therefore, I would be very surprised if allowances were permitted in this case.

Ms. Madeleine Dalphond-Guiral: You have enlightened me. You've made my day.

• 1640

Some members: Oh, oh!

Ms. Madeleine Dalphond-Guiral: That's easy...

[Editor's note: Inaudible] ...here.

[English]

The Chair: Mr. McKay.

Mr. John McKay: Yes, I know you're just dying to go.

What's the rationale?

The Chair: He just gave it.

Mr. John McKay: But why do we have to have people living in the national capital region, period? Is there some reason? I think in the Supreme Court justices' case, there's a constitutional reason for that. It's an obligation. What's the rationale here?

Mr. Stephen Sharzer: I think it borrows a bit from the same idea. If you have a body administering an act that applies across the land, then there's some symbolic value in ensuring that at least the chair and vice-chair are not seen to be representing a region in particular.

Now, I suppose coming to Ottawa doesn't necessarily guarantee that, but I think whether you're from Ontario, Quebec, or elsewhere, people look at Ottawa as being a little bit apart. I think the idea is that people don't see them as being part of a particular region. You're part of the national capital; you're not linked to anything.

Mr. John McKay: You also effectively exclude a pool of people who might otherwise be very attracted by this job. People from Saskatoon have to make the decision that they are also going to move to Ottawa or Hull.

I'm just querying why you're limiting yourself.

Mr. Stephen Sharzer: That will be a condition. People will have to come here. People will have to be willing to move.

On the other hand, I think I can say—perhaps I'm a bit prejudiced, but I have worked in the area for a while—that this is a fascinating area. The human rights cases are very interesting. I don't think there will be any lack of interest in perhaps wanting to take on a responsibility like this and come to Ottawa.

Mr. John McKay: On the other hand, you're just legislatively tying your hands.

Mr. Stephen Sharzer: There is that element to it.

(Amendment negatived—See Minutes of Proceedings)

The Chair: We'll now deal with BQ-7.

[Translation]

Ms. Madeleine Dalphond-Guiral: The clause deals with the way the chairman delegates the chair, if he or she is unable to act. We are suggesting that the members of inquiry panels be members of the bar. We have seen that there must be at least four members, but there could more. I'm suggesting that they be chosen from among the members of the bar.

[English]

Mr. Stephen Sharzer: There's been a lot of back and forth on that in terms of having legal representation. Again, I suppose this is one of those delicate balances that we've been trying to strike. In trying to ensure that we do have legal representation, there was a big debate about this in the Senate. In fact, Senator Kinsella and others were adamant that we shouldn't be restricting this to lawyers. I think our answer at that time was that we're not.

What we try to do is ensure that lawyers are there because of the kinds of difficult evidentiary and procedural matters the tribunals are dealing with because of some of the challenges to the legislation that come forward as well. But at the same time, a lot of the groups who are affected by this legislation and the various groups who are served by this legislation, whether it's visible minorities or people with disabilities and so on, have been saying that they would like to see wide representation on the tribunal. It's so that we get different points of view, and not just that of lawyers. So what we have, I think, is a balance.

We do have a provision for where there is a challenge to federal legislation. Much as you might have a challenge under the charter to federal legislation that would be heard in the courts, we've made a provision for lawyers to sit on those. But in other cases we feel that people will be able to handle the cases, lawyers or not. We want to give some scope so there's a representation on the tribunal.

Otherwise, if there is, as there is here, a presumption in favour of having one-person tribunals as a matter of streamlining, the effect may well be that you would have to appoint nearly all the members as lawyers to ensure that you would have a chairperson for each tribunal who would be a lawyer.

• 1645

The effect in the end might well be that most cases would have to be heard by lawyers. I think that is contrary to the kind of policy we have been developing—that we would have a bit of a balance on here to reflect different points of view, to recognize not just lawyers bringing expertise, but sociologists, academics and other fields. Economists and so on might be brought into this tribunal.

I think what we try to do is to strike that balance to make sure that there is legal representation, but at the same time ensure that there are other viewpoints represented on the tribunal. Sorry, another long-winded lawyer's answer.

(Amendment negatived [See Minutes of Proceedings])

The Chair: Amendment BQ-8. Madame?

[Translation]

Ms. Madeleine Dalphond-Guiral: I will now make you happy by withdrawing this amendment. In rereading it, I see the word "or", that in effect meets the purpose of the amendment. So, you should thank me.

[English]

The Chair: Thank you very much, then. So amendment BQ-8 is withdrawn.

(Clause 27 as amended agreed to)

(Clause 28 agreed to)

(On clause 29)

The Chair: Amendment BQ-9.

[Translation]

Ms. Madeleine Dalphond-Guiral: Basically, we are suggesting that the words "the Commission" be replaced by "the Tribunal" after the words "practice and procedure or by".

Ms. Eleni Bakopanos: Is that what you're proposing?

Ms. Madeleine Dalphond-Guiral: Yes.

[English]

Ms. Eleni Bakopanos: It's unusual.

[Translation]

Ms. Madeleine Dalphond-Guiral: That must be the difference between Quebec and the rest of Canada. Here is another difference.

[English]

Ms. Eleni Bakopanos: Maybe we should explain that.

Mr. Stephen Sharzer: The practice has been that the parties take up the order and file it in Federal Court, if necessary. The Human Rights Commission, I can tell you, never shies away from filing the orders. So the idea is once the tribunal has made its order, that's it. If the parties want to seek to enforce it in the Federal Court, they merely file it in the Federal Court. It becomes a Federal Court order, in effect, and then they can take steps to enforce it.

Because the commission has that public interest role, there has never been a problem in terms of these orders being registered in the Federal Court once they are are put there. They have taken in contempt proceedings, where a tribunal has made an order with one of the hate propaganda cases involving messages on telephone lines. An order was made to cease and desist operation of the telephone line. The order was then taken by the commission and filed with the Federal Court. The person involved persisted in issuing these telephone messages, and then the Human Rights Commission brought proceedings for contempt and obtained a conviction as a result.

The Chair: Motion BQ 9? Those in favour? Oh, you've withdrawn it? We wore her down.

(Clauses 29 to 38 inclusive agreed to)

(On clause 39—Establishment of Tribunals)

The Chair: We have amendment G-5, moved by Mr. Maloney.

Madam Bakopanos.

Ms. Eleni Bakopanos: It's just that it was left out, so we're adding a section that is comparable to what we added earlier for the tribunal, in order to allow the chairperson, at their discretion, to allow a hearing to continue by a member.

(Amendment agreed to [See Minutes of Proceedings])

(Clause 39 as amended agreed to)

(Clauses 40 to 51 inclusive agreed to)

The Chair: Shall the preamble carry?

Some hon. members: Agreed.

The Chair: Shall the title carry?

Some hon. members: Agreed.

The Chair: Shall the bill as amended carry?

Some hon. members: Agreed.

The Chair: Shall the committee order a reprint for use at report stage?

Some hon. members: Agreed.

The Chair: These are all Mr. Maloney's motions.

Shall the chair table the bill in the House with amendment as the seventh report of our committee?

Some hon. members: Agreed.

The Chair: Thank you all. That's great.

• 1650

Thank you, officials. I know we ran you through the wringer trying to get ready for this, and we appreciate your help very much. And it's nice to see Yvan Roy back and sunny and healthy.

We're adjourned.