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]

Tuesday, March 17, 1998

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[English]

The Acting Chair (Mrs. Sheila Finestone (Mount Royal, Lib.)): Good morning, ladies and gentlemen. I call to order the meeting of the Standing Committee on Justice and Human Rights.

I would first like to observe that we're delighted to welcome you, Madame Falardeau-Ramsay. We've been looking forward to a meeting with you and the Human Rights Commission on the tribunal and all the work that you undertake in the name of Canadians, and we look forward to hearing from you today.

Would you be good enough to introduce the people with you, and then please make your presentation.

Ms. Michelle Falardeau-Ramsay (Chief Commissioner, Canadian Human Rights Commission): Thank you very much, Madam Chair.

With me is Mr. John Hucker, who is the secretary general of the commission, and Mr. Bill Pentney, who is our general counsel.

[Translation]

Madam Chair, members of the Committee, I would like to thank you for this opportunity to comment on Bill S-5 on behalf of the Canadian Human Rights Commission.

Let me first say that I was pleased with the support that was shown for this draft legislation during the first reading debate in the House of Commons. In our view, this Bill contains amendments to the Canadian Human Rights Act which are long overdue, and which will enhance our Commission`s ability to protect the equality rights of Canadians.

We particularly appreciate the fact that this legislation contains provisions aimed at improving the situation of people with disabilities. While Canada recently won an award for its work on disability issues, I believe there is a lot more that can be done, and this legislation is a useful first step in ensuring full citizenship for disabled Canadians.

In the Commission`s view, the most important provisions of the Bill are those which deal with the accommodation of special needs short of undue hardship. As you are no doubt aware, the duty to accommodate has been a fixture of human rights jurisprudence for a number of years. Most recently, this principle was affirmed by the Supreme Court of Canada in the Eldridge case, which dealt with the right of deaf hospital patients to sign language interpretation.

While the duty to accommodate affects other groups, such as religious minorities, it is clear that people with disabilities are the prime beneficiaries. Many of the complaints the Commission receives from disabled people relate directly to a failure to accommodate their needs. And people with disabilities frequently tell us that accommodation is central to the full economic and social integration into mainstream society.

Because the courts have made the duty to accommodate a fact in law, the amendment is not really a departure from the current situation. But people should not have to be legal experts to know what their rights or obligations are. With this amendment, the law will be clear. People with disabilities will know that they have a right to ask for accommodation as job-seekers, employees or customers. And employers and service providers will know once and for all that it is a requirement of the law.

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There is however, one aspect of this proposed change that gives us cause for concern and that is the provision in the Bill which would permit the government to draft regulations defining what might be required to meet the legislative standard of accommodation. This, it seems to us, is unnecessary and could put the government, which might be the target of complaints dealing with accommodation, in a potential conflict of interest. Our experience has been that human rights tribunals and the courts have shown themselves well able to strike the necessary balance between the duty to accommodate and the need not to impose undue hardship on employers. We see no need for government lawyers to be given this unnecessary authority to second-guess courts and tribunals.

[English]

While the other amendments included in the bill are mostly of a more technical nature, they are also important to ensuring both the effectiveness and credibility of the commission's work under the act. I will commence on a few of these.

The creation of a permanent tribunal to replace the current part-time tribunal panel is of particular significance to us. Since tribunal members are currently part-time, it is often difficult to devise a hearing schedule that will accommodate their other responsibilities. This has resulted in delays and a significant time lag between the conclusion of hearings and the writing of decisions.

We also believe that a permanent tribunal would lead to more consistent decisions, since the tribunal members would have the opportunity to develop a more in-depth expertise in dealing with complex human rights issues.

We also support the amendment that would increase the amount a tribunal can award in damages from $5,000 to $20,000. Tribunals rarely award the maximum amount allowed by the act, but there are cases in which the pain and hurt feelings suffered by victims of discrimination do warrant a higher level of compensation. This is particularly true in harassment cases, as the emotional toll of harassment can be extremely high.

Since the main purpose of human rights law is to redress acts of discrimination, to make the victim whole, so to speak, a $20,000 maximum would more accurately reflect the actual pain and suffering that is caused in many cases. We also believe the higher award limit could make respondents take their responsibilities under the act more seriously and would indicate the importance that Parliament places on deterring discrimination.

Similarly, we support the provisions of the bill that strengthen section 13 of the act, dealing with the dissemination of hate propaganda. Under the existing act, the only action a tribunal can take in these cases is to order the respondent to stop distributing the messages. No penalty can be imposed on respondents, and there is no redress for individuals who have been specifically named in hate messages. The amendments would give section 13 more teeth and could serve as a deterrent for those who are considering using telephone lines or the Internet to incite hatred.

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Finally, we have urged for many years that the act be amended to allow the commission to report directly to Parliament rather than through the Minister of Justice. This is a somewhat symbolic matter, as no Minister of Justice has ever interfered with either the commission's operations or the positions we take on various human rights issues, but we believe reporting directly to Parliament would enhance our credibility with the public, as it would confirm our independence from the government of the day.

As you are aware, 1998 marks both the 50th anniversary of the Universal Declaration of Human Rights and the 20th anniversary of our commission. It is, therefore, an appropriate time to look at both the progress we have made in ensuring the equality rights of Canadians and the challenges that await us in the future.

As a result, we are pleased that at the time of the original introduction of this bill the Minister of Justice announced that a more far-reaching review of the Canadian Human Rights Act would be forthcoming. While the current set of amendments are a step in the right direction, they are no substitute for a fuller examination of the act. We are hopeful that this review will take place sooner rather than later so that we can have the legislative tools we need to meet the needs of a changing society.

Thank you.

[Translation]

Thank you. I would be happy to answer your questions.

The Acting Chair (Mrs. Sheila Finestone): Thank you very much, Ms. Falardeau-Ramsay. I should add that we too will be very pleased when the review is finished. It has been in the works a long time.

Your submission is very interesting and I would like to ask you two questions before yielding the floor to the members of the Committee.

[English]

I believe you said something to the effect that you didn't feel the government had to develop the regulations, that the tribunal and the commission certainly could do that, as they have in the past. One of the observations that has been made is that the tribunal is not independent enough of the commission. I wonder if you would care to comment on that, as point one.

Second, under part 2 of the act, clause 14 is amended to read:

It is a discriminatory practice for a person against whom a complaint has been filed under Part III, or any person acting on their behalf, to retaliate or threaten retaliation against the individual who filed the complaint or the alleged victim or witness.

I'd like you to comment on the addition of the words “or witness.”

Thank you very much.

I believe we will start with you, Mr. Forseth.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): Thank you.

Ms. Michelle Falardeau-Ramsay: Would you like me to answer right now?

Mr. Paul Forseth: I think so. Sure.

Ms. Michelle Falardeau-Ramsay: Merci.

The human rights tribunal is completely independent from the commission as a result of a decision by the Supreme Court in the MacBain case, if I remember well. There is, as of last year, 1997, complete separation even as far as the budget is concerned. The tribunal now can go and get its own budget. It has its own vote. We are now completely separate from the tribunal.

The commission would like to see, though, leaving more of the determination of what constitutes undue hardship to the courts and the tribunal, as has happened before. I think the tribunal as well as the courts have established quite clearly what is undue hardship.

The Acting Chair (Mrs. Sheila Finestone): Perhaps it would be helpful if you could give us some idea of why you think in this particular bill, S-5, they went in the direction you are not recommending.

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Ms. Michelle Falardeau-Ramsay: Well, I don't know.

The Acting Chair (Mrs. Sheila Finestone): I think perhaps I might reword that. Do you think that in the best interest of Canadian citizens it would be contraindicated to go that route, rather than the more independent route if—I think that was part of the question—it can be perceived and understood to be as independent as you have just indicated?

Ms. Michelle Falardeau-Ramsay: We feared that there would be a conflict of interest. As you know, a large number of the cases that deal with undue hardship have the government as a respondent. So it would mean that they would be party and decision maker at the same time in those particular instances. So that's the point I wanted to make.

As for your second comment and question, we feel that—

The Acting Chair (Mrs. Sheila Finestone): Excuse me, colleagues, that's on page 8 of the bill.

[Translation]

Excuse me one moment please.

Ms. Michelle Falardeau-Ramsay: Certainly.

[English]

The Acting Chair (Mrs. Sheila Finestone): It's on page 8 of the bill, under part 2:

14. The Act is amended by adding the following after section 14:

—and it would be the last line—

or the alleged victim

—or witness.

Ms. Michelle Falardeau-Ramsay: We feel it is important that it should be possible not only for the claimants, but also for the witnesses, to accomplish the retaliation. In fact, this already exists as far as the prosecution is concerned. Under the law as it stands now, you can prosecute in front of a criminal court for retaliation, but it needs to go through the RCMP. That makes it quite difficult, and it also makes it a criminal procedure instead of a civil procedure. At the moment this possibility is granted to the people who act as witnesses in a case.

If we look at the amendments that would allow for retaliation complaints—and we're completely for this change—it would allow for retaliation complaints only against the complainants. Very often during the investigations witnesses are also people who could be the subject of retaliation, and are in fact the subject of retaliation.

The Acting Chair (Mrs. Sheila Finestone): Could you give us a particular example.

Ms. Michelle Falardeau-Ramsay: Well, you have, for example—

The Acting Chair (Mrs. Sheila Finestone): We are listening to the cases of custody and access right now in another standing committee. The issue of frivolous complaints or unjustified issues has come before us. I just wondered whether or not this would fit that situation, or how else you could explain the need to add “or witness”.

Ms. Michelle Falardeau-Ramsay: No, I don't think it would be mostly in cases of frivolous or vexatious complaints.

Let's say that you have a complaint against an employer, and let's say it touches on sexual harassment, You have these particularly these days, where jobs are scarce. You would have witnesses who won't come forward, because they fear that they would lose their job, or they would have problems with their employer if they would testify in favour of a complainant. It is to prevent that type of situation, or to alleviate what would happen to witnesses, that we would like witnesses to be included in addition to complainants.

The Acting Chair (Mrs. Sheila Finestone): Thank you very much.

Are there any questions about that, or can we proceed? Mr. Forseth.

Mr. Paul Forseth: Thank you. There appears to be some concern about what is actually meant by costs in the bill. For example, some equality groups want consideration limited to excessive costs that would alter the essential nature, or would substantially affect the viability, of an enterprise responsible for accommodation. Employers and service providers, on the other hand, would maybe prefer a broader and more realistic approach to the interpretation of costs to allow for consideration of the general impact on the productivity or efficiency of the enterprise.

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Do you have some views on the whole definition of costs and just how this should be interpreted?

Ms. Michelle Falardeau-Ramsay: Thank you. This is a very interesting question and a question that has been discussed very often in front of the tribunals and courts.

The courts have established a test in order to define what costs would mean. The jurisprudence right now includes such factors as those you have mentioned concerning, for example, the size of the enterprise. The effect it would have on production would be a factor considered when assessing what would be costs and what would be excessive costs or undue hardship.

Mr. Paul Forseth: All right. Maybe we can turn to subclause 23(2) on page 12 of the bill. The bill would allow complaints of discrimination in the provision of goods and services where there's no identifiable victim. The amendment would bring the treatment of complaints and discrimination in the provision of goods and services in line with those related to employment.

But there's concern among providers with respect to this provision regarding the appropriateness of the Canadian Human Rights Commission being able to deal with a complaint of discrimination where there is no identifiable victim.

Maybe such respondents in such cases will not have the full particulars of the necessary case in their defence. They claim that it may also be difficult to make an actual determination of discrimination in such cases and to assess responses and remedies.

The justice department says that this provision would allow the Canadian Human Rights Commission to deal with cases where a specific victim does not, or is unable to, come forward, but where there's evidence that a discriminatory practice is taking place. While there may be no identifiable complainant in the cases, I suppose the victim of the particular policy or practice would still be identifiable through statistical means. In other words, this is trying to address what is called systemic discrimination.

One of the references made by service providers is to the federal Employment Equity Act. It currently prevents the Canadian Human Rights Commission from dealing with a complaint based solely on statistical information that purports to show that members of one or more designated groups are under-represented in an employer's workforce.

Could you address this employment equity reference and its relation to Bill S-5. Just tell us what your views are on responding to what is commonly called systemic discrimination.

Ms. Michelle Falardeau-Ramsay: I think the Employment Equity Act and this part of the amendments to the bill are aimed at two completely different situations. When we deal with employment equity, we deal strictly with representation in employment and in the promotion of people who are members of the four designated groups. When you deal with the part of the amendment you were referring to, we are dealing with the provision of services, and also employment, but from a different perspective.

Let me give you an example. As happened some time ago, there might be a case where nobody would come forward, but an association for disabled people would realize that there is no access to a polling station in an election. Then you wouldn't need one person to make a complaint. But you could have an association, for example, that would come and make a complaint to say that this is not accessible to disabled people. You wouldn't have one identifiable victim. This amendment would be necessary to cover those types of cases.

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Mr. Paul Forseth: Chairman, I'm finished my questioning for this round.

The Acting Chair (Mrs. Sheila Finestone): Thank you very much.

[Translation]

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): Thank you for coming here this morning, this beautiful sunny Tuesday.

Ms. Michelle Falardeau-Ramsay: The weather simply increases the pleasure.

Ms. Madeleine Dalphond-Guiral: You`re right. I would like to ask two questions. The first concerns the composition of the Tribunal. On reading the various sections, we see that the members of the Tribunal must, of course, be competent and that they are appointed by the Governor-General in Council. This raises questions, in any case, on the complete independence of the Commission. Would there be any opposition to the members of the Tribunal being judges?

Ms. Michelle Falardeau-Ramsay: You know, in all such questions, there are always two sides to the story. Judges are undoubtedly highly qualified legally. But I think that in a field like human rights, it is important to have people from sectors of society other than the purely legal, people who have a broader and more diversified view of society's problems.

Although I myself am a lawyer, I admit that lawyers sometimes tend to look at things in a way that is completely, specifically and solely legal, not surprising considering their education. This is why I believe it important for people from other areas to be included, to give another point of view.

Ms. Madeleine Dalphond-Guiral: Is there a way of guaranteeing the independence of the Tribunal? I agree that lawyers are exceptional people, but they do have limits, like everyone else.

The Acting Chair (Mrs. Sheila Finestone): There are not two colours, there is only one. It is neither black nor white; it's always grey.

Ms. Madeleine Dalphond-Guiral: Will there always be a way of promoting the Tribunal's independence? Section 49 says:

49.(1) At any stage after the filing of a complaint, the Commission may request the Chairperson of the Tribunal to institute an inquiry into the complaint if the Commission is satisfied that, having regard to all the circumstances of the complaint, an inquiry is warranted.

I think I understand that, when a person or organization files a complaint with the Tribunal, the Commission may ask the Chair of the Tribunal to designate a member to institute an inquiry. This means referring the complaint to a higher authority. I am certainly not a lawyer and I am basing myself on what I read here. Please correct me if I am wrong. According to the wording of the Bill, the Commission would be entitled, even obliged to look at complaints, evaluate them and ask questions about them, from time to time, rarely, often, every day. I would like some help here.

Ms. Michelle Falardeau-Ramsay: As you have said so well, the Commission acts as a kind of screen. For example, only 2% of the complaints received are referred to the Tribunal, because of the heroic effort we put into conciliation and mediation. I would say that about half the complaints that come before the Commission are settled.

Some of the complaints filed with the Commission do not come under our jurisdiction and are dismissed, as are those where there is no prima facie proof and those where it can be seen at a glance that there was really no discrimination at all.

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The system operates in such a way that, when the Commission decides to refer a complaint to the Tribunal, it simply sends a letter to the Chair of the Tribunal. From that time on, the complaint is completely outside our jurisdiction. We appear before the Tribunal as a party defending the public interest. The Chair of the Tribunal decides, just like the Chief Justice in a court of law, which of its members will hear the case. This is the meaning of that provision in Section 49.

Ms. Madeleine Dalphond-Guiral: Thank you.

The Acting Chair (Mrs. Sheila Finestone): No further questions?

Ms. Madeleine Dalphond-Guiral: No.

The Acting Chair (Mrs. Sheila Finestone): The recent exchange makes me think that it would perhaps be useful if you filed it with the Committee

[English]

the number of complaints you have received in the past. Could you give us some kind of report? You do not need to do it now, but could you send it to the committee? We would like to know the number of complaints received, the number of referrals to tribunal, and the number of hearings held. We would also like to have any other documentation you think is relevant, since we haven't had the opportunity even to welcome you and wish you well in your task, or hear from you. So it would be very pertinent. Thank you.

Mr. Lee.

Ms. Michelle Falardeau-Ramsay: Can I ask you if you would like that for last year, or for, let's say—

The Acting Chair (Mrs. Sheila Finestone): Since you took office, madam.

Ms. Michelle Falardeau-Ramsay: Since I took office. Fine, for last year. Thank you very much.

The Acting Chair (Mrs. Sheila Finestone): Thank you.

Mr. Lee.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Thank you, Madam Chair.

I'd like to focus a little on costs. I accept that lying behind these amendments are principles and objectives that are quasi-constitutional, if you will, for those who are affected, those who are disabled, those who are disadvantaged. But inevitably as Parliament deals with these things, it must look at cost factors, as must the Human Rights Commission from time to time. Even though it's dealing with rights, it still has to look at costs. So I'd like to focus on that.

The first area I wanted to look at was this concept that arises when you don't have an identifiable victim. Could you give the committee an example of a real-life scenario, a real-life example, of where that type of section, that type of dynamic, would come into play? That might allow me and others to have a better picture of what would be involved from a public interest point of view. These are rights versus other people's rights, and the costs and benefits. Could you give me an example?

Ms. Michelle Falardeau-Ramsay: Apart from the one I have already given, the best example I could give you would be the one of the post office, for example.

As you know, some years ago some boxes were established. These were sets of boxes close to, let's say, an urban development of some kind. Some of those boxes were very difficult to access for people in wheelchairs, especially during the wintertime. So, for example, an association of the disabled would make a complaint to require that those boxes be made accessible.

The Acting Chair (Mrs. Sheila Finestone): You mean mailboxes?

Ms. Michelle Falardeau-Ramsay: Yes, the superbox. That was so they would be made accessible for people who are in wheelchairs. That would be the type of case we have in mind.

Mr. Derek Lee: Does this involve the design and layout of the superbox situation on a street corner, or does it involve snow shovelling?

Ms. Michelle Falardeau-Ramsay: Well, it depends on the cases. Sometimes—

Mr. Derek Lee: Well, this is your case. Get me down to the—

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Ms. Michelle Falardeau-Ramsay: Well, you see, there are a lot of those all across the country, and some of them would be a question of design; some of them would be a question of making sure, for example, that there is salt put on the approach in order to get to the boxes.

The Acting Chair (Mrs. Sheila Finestone): On the sidewalk.

Ms. Michelle Falardeau-Ramsay: Many situations are different one from another, depending—

Mr. Derek Lee: Okay, but I need a real one. I want you to give me a real one.

I realize it's a hypothetical, but, you see, a lot of Canadians have complaints about the superboxes. I think someone who is disabled ought to be in just about the same position as a person who doesn't have a disability when it comes to complaining to the post office about the mailboxes.

The Acting Chair (Mrs. Sheila Finestone): Why?

Mr. Derek Lee: That's apart from matters related to design and access for people with disabilities.

I realize we have to accommodate the disability, and I still have my eye on cost here, so I'm asking you to nail this down. Show me where the rubber hits the road. Give me an example of a victimless complaint in relation to superboxes.

Ms. Michelle Falardeau-Ramsay: Well, that would be exactly that. You would have an association of disabled people come and make a complaint to the commission, complaining about the fact that some boxes are not accessible to people who have a disability.

Mr. Derek Lee: By design? They're not accessible by design?

Ms. Michelle Falardeau-Ramsay: If you wish, it might be by design, or it might be because of the location. It might be because the location is not properly taken care of, or it might be because it's on a kind of... There's a discrepancy between the—

Mr. Derek Lee: The level of the roadway and the level of the boxes.

Ms. Michelle Falardeau-Ramsay: Yes. So it's a question to ensure that disabled people will have the same access as anybody else.

Mr. Derek Lee: Okay.

Ms. Michelle Falardeau-Ramsay: Is it practical enough, or do you want to add something...?

Mr. Derek Lee: You know, I'm trying to measure this in my mind. I understand the benefits side. Presumably there's some alleged barrier to a person with a particular type of disability, to a class of people with a particular type of disability. I'm trying to measure in my mind the implication of that for the post office right across Canada. On Oak Street someone has piled up the snow on a particular corner. It becomes ice, it's there for three months, and people with particular classes of disabilities can't get into the box.

I'm trying to get a better handle on it, because I can't measure the costs here. I mean, this victimless complaint that could drift in could cost me a billion dollars.

Ms. Michelle Falardeau-Ramsay: Well, typically—

The Acting Chair (Mrs. Sheila Finestone): Excuse me, would you liken it to something that has already happened, such as the polling stations? You will recall that there was a very important case decided by the tribunal with regard to access by disabled people to the polling station, their right of access. So you had to change. In many cases you either had to build ramps or you had to find new polling stations.

I know it happened to me, so I'm sure it must have happened to you in your own riding. That was a decision of the tribunal. Would that be the kind of case on which you're trying to get a better handle?

Mr. Derek Lee: What I'm trying to get at is some kind of definition. I am trying to draw this in.

With respect to the framing of the sections here, my reaction is that they're quite open-ended, without a lot of definition. As we're being asked to legislate, I'm trying to measure the potential implications—i.e., costs on one side, benefits on the other—and I was looking for an example.

You've mentioned postal boxes, and, you know, my solution to the postal box thing is greater care when one is clearing snow and ice. There should be mandatory requirements in the design so that they are accessible to most people who are disabled.

There might always be a disability that you might... Someone who is flat on his or her back, a quadriplegic who can't move and who can't even get into a wheelchair, is not going to get access to the post box. I was looking for something that would help me measure...

• 0945

Ms. Michelle Falardeau-Ramsay: I can speak again about the post office, because we we have had a case. There was a complaint by an individual about the accessibility of the buildings across Canada. In his case it was in one particular area of Newfoundland. What happened was that the post office came up with a ten-year plan of accessibility for all its buildings across Canada. We are monitoring that. Every year the post office changes and makes accessible some of their post offices. That's the way it is usually done.

Does this answer your question? There is always the concept of undue hardship, so it has to be considered and interpreted. It's never an open-ended situation.

Mr. Derek Lee: In your view, who is best suited to define or circumscribe what undue hardship is?

Ms. Michelle Falardeau-Ramsay: I think it would be the tribunals and the courts. They have done so up to now and they have stated which factors should be considered, including the operation of the company, the size of the employer, the disruption to services and to operations, and such factors. There is already quite a corpus of jurisprudence that deals with the definition of undue hardship.

Mr. Derek Lee: So you would exclude legislators from that task.

Ms. Michelle Falardeau-Ramsay: What is interesting in this amendment is that it is not the legislators who would do it. It would be done by regulations and the regulations are made by the Department of Justice.

Mr. Derek Lee: On delegation from Parliament.

Ms. Michelle Falardeau-Ramsay: Yes.

Mr. Derek Lee: You're proposing that legislators would be outside the loop and excluded from this process of defining where the rubber hits the road.

Ms. Michelle Falardeau-Ramsay: We think it would be much more independent and impartial if it would come from the courts. As I mentioned in my statement, it would be finally legal counsels from the justice department who would make it, and usually they are at the same time respondents in many of those cases.

The Acting Chair (Mrs. Sheila Finestone): Building on Mr. Lee's questions, is there not a public consultation procedure so that it is open for consideration? Does it come back to the justice committee? I'm sorry, but I'm very new in here or else very old and getting refurbished, so I can't remember what's in the law with respect to that.

Ms. Michelle Falardeau-Ramsay: There is a disposition in the amendment that there would be public consultation. Although we welcome the possibility of getting public consultation, they are consultations; the ultimate responsibility of drafting and preparing those regulations would be with the Department of Justice.

The Acting Chair (Mrs. Sheila Finestone): So they're developed by the tribunal?

Ms. Michelle Falardeau-Ramsay: No, they would be according to the set-up that is specified in the bill.

The Acting Chair (Mrs. Sheila Finestone): It removes it from your jurisdiction.

Ms. Michelle Falardeau-Ramsay: As it is now, it would be the Department of Justice that would present—

The Acting Chair (Mrs. Sheila Finestone): I'm sorry; I didn't explain. I want to know from you the difference between what is being recommended in Bill S-5 and what your recommendation is. If your recommendation were subject to an open hearing or to a regulatory process being reviewed by the justice committee, would that be something you could see happening?

Ms. Michelle Falardeau-Ramsay: If there is no regulation, there is nothing that can come back to the justice committee because it would be left to the court, as it is now, to decide and define on a case-by-case basis what constitutes undue hardship. This is what it is now.

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The Acting Chair (Mrs. Sheila Finestone): I realize that.

I'm going to let Mr. McKay take his turn and then perhaps I'll come back after Ms. Cohen has had hers.

Mr. John McKay (Scarborough East, Lib): Thank you, Madam Chair.

Thank you for your presentation. As you know, there's a number of employer groups and service provider groups that are concerned about section 10 and section 15 of the act, now being renumbered as proposed subsection 15(1). Their area of concern has to do with:

must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.

As I understand it, there are two issues. The first issue is that health, safety and cost is in some respects a limiting notion. The second issue has to do with respect to the concept of reasonableness being read out of the jurisprudence.

I'm interested in your views with respect to whether the absence of the phrasing of reasonableness, of having regard to reasonable, is in fact being read out and therefore that body of jurisprudence is being eliminated. If it is, should there be some accommodation with respect to the double entendre in accommodation?

The second question I have is with respect to the health, safety and cost. Are those limiting concepts or should there be some phrase tagged on there such as, such other factors as the tribunal/court may consider reasonable in all the circumstances?

Ms. Michelle Falardeau-Ramsay: As far as the first part of your question is concerned, the courts have for a long time decided that the question of reasonableness is included in the notion of undue hardship. The fact that reasonableness is not in the drafting of the provision just prevents a repetition or un pléonasme, as we would say in French, so it doesn't make much difference to the fact that reasonableness would be there or not. If an accommodation is such that it does not provide undue hardship, it means it's a reasonable one.

Mr. John McKay: So those are interchangeable words?

Ms. Michelle Falardeau-Ramsay: More or less, the way that undue hardship has been interpreted right now by the courts.

On the second part of your question, if I remember well, it said “considering”.

The Acting Chair (Mrs. Sheila Finestone): It's at the top on page 7.

Ms. Michelle Falardeau-Ramsay: It means in my view that it's not necessary to add anything because they might consider other things also. They're not bound to consider only health, safety and costs. They should consider health, safety and costs, but they might consider whatever else they find appropriate.

Mr. John McKay: Oh, I see.

In your view, the health, safety and cost is a minimal phrase?

Ms. Michelle Falardeau-Ramsay: They have to consider it.

Mr. John McKay: So are we into issues of drafting rather than substantive issues here?

Ms. Michelle Falardeau-Ramsay: I would think so.

Mr. John McKay: Given the concerns that certain employer groups have expressed, what's the argument against rephrasing so that “reasonable” is phrased? The second issue would be “without limiting the foregoing but to include”...blah, blah, blah.

Ms. Michelle Falardeau-Ramsay: You would be better to ask that question to expert drafters.

My first answer to that would be why use words that are not necessary in a piece of legislation? But it would be better to ask that question to the drafters of the legislation.

• 0955

Mr. John McKay: Okay. We're not getting into arguments here about substantive issues; we're getting into points of drafting rather than points of substance.

Ms. Michelle Falardeau-Ramsay: Yes, that's my understanding.

Mr. John McKay: Thank you very much.

Ms. Michelle Falardeau-Ramsay: You're welcome.

The Acting Chair (Mrs. Sheila Finestone): Ms. Cohen, please, and then Mr. Forseth. We must do this within the next six minutes.

Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.): I apologize because I was out of the room for a few minutes and I may be covering old ground in one sense.

I want to make it clear that this wouldn't be a determining factor in terms of a vote or anything. I'm just very concerned that now we're adding another area under which remedies can be sought through the commission and the tribunal, and I just hope the resources are there.

I would like to know about your backlog. My understanding is that you have a serious backlog right now. My understanding is that the commission is also farming work out to private lawyers because it can't be covered off internally. I'm just concerned that you have the resources to do this very important work.

I know the acting chair has asked for some idea of the cases since you've been commissioner, but it seems to me that it would be more profitable for us to see what the backlog has been like for the past three years. Three years is a reasonable length of time, having been involved myself with court backlogs and that sort of thing. We need to look at it over three years.

I recall that the Ontario Human Rights Commission was terribly bogged down, and I'm not certain they're out of their bog yet. I don't want to see the Canadian Human Rights Commission and tribunal get in that position. If we're in it, I'd like to see us get out of it.

Are you concerned about adding cases now, at a time when you have a backlog? Do you have a backlog? Do you have a plan to manage it?

Ms. Michelle Falardeau-Ramsay: Yes. Right now I would say that normally most of our cases are dealt with within 12 months. You have to understand that it means since the moment a complaint is filed to the moment it goes to the commission for the first time.

We are sending about 5% of the cases of the commission to conciliation, which adds another four to six months to this time. Then we decide either to say that there would be no further proceeding or that this case would be sent to tribunal. About 2% of those cases last year were sent to tribunal. That does not take into consideration the cases that will be stood down because there is a case in the court system that would deal with the matter.

For example, last year we had a case concerning retirement age in the armed forces. The decision came from the court, and at the same time it settled a good number of cases that were in the pool at the commission.

By and large, at the moment we would like, for sure, to have an even shorter time to deal with cases. As you know, in the last three years we have had a cut of 24% to our resources. At the same time we have changed our way of operating and our way of dealing with investigations, and it's how we have been able to reduce quite considerably the time it takes to investigate a case.

We're still in the process of looking at ways of improving it. At some point you have done everything that you can do with the resources you have. I don't see at the moment the possibility of really increasing the backlog we currently have. In any event, as I said earlier, we will send you figures for the last three years so that you will have a good idea of what is happening at the commission as far as the number of cases and processing time are concerned.

• 1000

Ms. Shaughnessy Cohen: How old is your oldest case right now?

Mr. John Hucker (Secretary General, Canadian Human Rights Commission): There will be extraordinary cases that have been in the system for several years, and no doubt there would be a case that has been there four or five years. The reasons for that would be complex, but usually, as the chief commissioner says, it will relate to the need to stand a case down while a court considers the same or a similar issue.

Sometimes complainants come to us with issues they already have in the courts, or with issues that are in the grievance process. Our policy, and indeed the law, says we should stand the case down while they pursue other sources of remedy. So we will stand it down while a grievance is pursued, while an appeal from the grievance is pursued, and then perhaps court action.

So there would be the odd case that has been around as long as four or five years. That's the kind of case that gets publicity, but as the chief commissioner is saying, I think the reality is that the cases coming into us now are dealt with quite expeditiously.

Having said that, the reality of the budget restrictions to which we were subject three or four years ago, particularly in the years leading up to 1994-95, have had a real impact on us. We had to centralize our complaints investigations machinery in Ottawa. We decided we simply could not afford to run regional complaints activity, so we've centralized and have reduced the number of investigators from more than 50 to something in the region of 35. So we've lost approximately 20 investigators.

So we've made improvements in effectiveness, but the way we do work now is different than the way we did it a few years ago. We use the telephone a lot more. Because we're based in Ottawa, we make greater use of the telephone to do interviewing. We do less in-person interviewing, which I think saves money, but it may not always leave happy parties out there—complainants and respondents.

Ms. Shaughnessy Cohen: Ms. Falardeau-Ramsay, are you required by statute to live in the national capital region?

Ms. Michelle Falardeau-Ramsay: I never asked that question, but I think not. I think I can live anywhere, but I happen to live in the national capital region.

Ms. Shaughnessy Cohen: Okay. Thanks.

Those are all my questions. Thank you.

The Acting Chair (Mrs. Sheila Finestone): Thank you.

Before I go back to Paul, I think we need some clarification of the response to Mr. McKay.

You indicated—page 7, article 10.2, accommodation of needs—that considering health, safety and cost was a must, but it was not limiting. If you look at the French,

[Translation]

perhaps because of my relative ignorance of the French language, in my opinion, when line 7 refers to “undue hardship” in terms of health, safety and cost, the expression seems very restrictive. I would like to have further clarification before going on with our analysis of this subsection.

Ms. Michelle Falardeau-Ramsay: You are right when you say that the French seems more restrictive than the English.

[English]

The Acting Chair (Mrs. Sheila Finestone): So if there needs to be any kind of change—we can't go whether the English holds and then in the other case the French holds. I think we would have to take a definitive look at that, because there certainly is a limiting or restrictive factor.

Ms. Michelle Falardeau-Ramsay: Yes, the French is different.

The Acting Chair (Mrs. Sheila Finestone): Thank you for that clarification.

Ms. Michelle Falardeau-Ramsay: You're right, because I was looking at the English—

[Translation]

The Acting Chair (Mrs. Sheila Finestone): Maybe the French version is clearer.

Ms. Michelle Falardeau-Ramsay: I was looking at the English version and I had not looked at the French version. You are right, it is always important to look at both.

The Acting Chair (Mrs. Sheila Finestone): You see how useful it is to know both of Canada's official languages.

Ms. Michelle Falardeau-Ramsay: You're right.

[English]

The Acting Chair (Mrs. Sheila Finestone): Paul, did you want some question time?

I think we started at 9.20 a.m., so we will give ourselves about 10 more minutes. It was 9.07 a.m., so we'll give ourselves another five minutes.

• 1005

Mr. Paul Forseth: I will be very clear on that particular point. The transcript of this hearing may be referred to later when we have a problem on this issue. I want to make it very clear as to what your interpretation and intent of this section is. The list is there, but the considerations may go beyond it. This is not an inclusive list and allows other considerations. Is that clear?

Ms. Michelle Falardeau-Ramsay: I will let the general counsel give you his view on that.

Mr. Bill Pentney (General Counsel, Canadian Human Rights Commission): It seems to me that the question raised earlier related to whether or not words should be added such as “considering such other factors as the tribunal or the court may consider reasonable”. In our experience and in experience dealing with other cases, the types of other considerations that have been invoked, particularly by employers relating to the need to accommodate employees, all in some way or another relate to cost.

The question was raised earlier about productivity. Productivity is always assigned a dollar value by employers, and the position put forward is that by having a particular employee in a particular position, one loses a certain amount of productivity. Employers are not speaking about that as an abstract good in and of itself; they're speaking about a loss of resources. So it seems to us that one doesn't need to add and shouldn't open up uncertainty about the types of considerations that might be invoked, given that the concepts of cost, health and safety have all been treated quite broadly to date.

It's not clear why one would need to open it up to open-ended considerations, given that if there is a legitimate concern for an employer about the impact on its operations of an accommodating measure or a change in its policy, that will relate to health, safety or costs, it seems to us. It's the definition of the term “cost” that I think will be the key. The definition so far has included...

For example, in Roosma v. Ford Motor Company, Ford argued that by replacing permanent employees on the manufacturing line with temporary workers, those temporary workers would be less productive, would have more faults in their work, and overall would have a greater impact on Ford's operations. That was accepted in Ontario under a human rights code that is quite similar to this one, so I think the concept of cost will relate to other types of considerations that would be included in such other factors as might be considered reasonable. It's hard to know what other factors might be considered reasonable.

Mr. Paul Forseth: I will give you one esoteric example of “what ifs”. I heard of a case where the local branch of a bank accommodated a religious group or person by providing for a prayer room.

What about the potential loss of reputation and business that local branch would suffer because the community would begin to see the bank as accommodating one religious group at the expense of others? They are saying the bank is beginning to pick favourites and they won't go to that bank any more because they feel they've violated some principle of equity and fairness by getting into the areas of religious discrimination, which they never should have entered in the first place. Many members of the community will not go to that bank any more because they're getting into the business of picking favourites. They are saying that if you're going to provide a prayer group for them, then you have to do something for me and everybody else. That perhaps could be measured in a loss of business or loss of clientele.

Mr. Bill Pentney: I think there are two elements to the response to the question. First, if it does result in a tangible loss of clientele and business, that will be a direct cost to the bank and could be put forward as a direct cost.

Just to follow out your hypothetical, it seems to us that human rights law always forbids an employer to rely on customer preference. It may be that some clients don't like being served by somebody who is black, Jewish or a women, but human rights law has said that the employer nevertheless must employ them and cannot allow the customers to dictate. If the bank is accommodating a particular religious employee and another one comes along with another need for accommodation—another employee says you've given that person a prayer room, I need Saturdays off—the bank will have to look at that case as well.

• 1010

In terms of playing favourites, I'm not clear how that would play itself out, because the bank would need to accommodate the needs of a blind person, deaf person or someone in a wheelchair, just as it would a Jew, Seventh Day Adventist or a woman who's pregnant. So in terms of playing favourites, I'm not sure it will actually play itself out that way, if I can use that expression.

Mr. Paul Forseth: Thank you.

The Acting Chair (Mrs. Sheila Finestone): Are there any further questions?

Mr. McKay, you'll have the last question.

Mr. John McKay: I'll try to make this brief.

On your argument that by limiting the phrasing, or eliminating from the phrasing without limiting the generality of the foregoing, blah, blah, blah—your argument is that brings more rather than less certainty, and that cost somehow or other will be the litmus test of whether this is a discriminatory act or not.

Let me put the argument to you in the reverse, that if you don't put more general phrasing into this particular section, you run the risk of creating unintended discriminatory actions such as the example my colleague raised—that by accommodating one particular group you risk the possibility of not accommodating, or appearing to not accommodate, other groups. If you don't leave the phrasing in some respect more vague and with the concept of reasonableness, and you limit your thinking to health, safety and costs, you will create unintended discriminatory actions.

Mr. Bill Pentney: I think we should step back and look at where we're at in terms of a case. Subsection 15(1) is a defence to a discriminatory act, so a discriminatory act would remain discriminatory unless it's saved by subsection 15(1)—it's a justification for an allegation of discrimination.

Again, each case will have to be looked at on its merits. So if there is a need to accommodate someone who is blind and then the next customer who shows up is deaf—i.e., the one accommodation is not going to work—one will have to examine the second accommodation. I'm not sure how introducing greater scope for defence to employers will be relevant in determining whether you accommodate one or the other, unless it relates to something tangible and concrete.

Over the last 20 years the law has tried to get away from subjective evidence, evidence that is based on commonly held beliefs like “this is not women's work”. To quote a famous example, the Supreme Court of Canada looked at a mandatory retirement case involving firefighters where the employer, the municipality, came forward and put evidence on the stand that firefighting is a young man's game. The Supreme Court of Canada looked at that and said that's not the kind of evidence this society should accept as justifying age discrimination. You need something a little bit more concrete and tangible and scientific than that. If you can show a decline in capacity as a generality that goes with aging, then maybe on objective evidence we will accept the defence.

I think that's what subsection 15(1) is looking to say to employers and service providers—to establish undue hardship you need something more than “if we accommodate one, we'll have to accommodate all”. Unless you can show who the “all” are, unless you can show that accommodating a Jewish or Seventh Day Adventist employee will lead to thousands of other claims from observant Jews or Seventh Day Adventists who are already in your workplace or are likely to apply, it's hard to know why you should have a defence based on hypotheticals.

So I think subsection 15(1) is telling employers they need tangible, concrete and practical evidence of the actual impact, rather than the speculative impact, of accommodating one religious group or one person with a disability, and that the best way to make that tangible is to relate to the things that businesses operate in—considerations of health, safety and cost—rather than to leave it completely open-ended.

I don't know how adding a more open-ended phrase could do anything except give employers the option of trying to raise less tangible and concrete justifications for what remains discrimination. They're saying yes, it would be good to allow this person with this disability to work here or get service at my branch, but I can't because to do so would impair health, safety or cost. I guess what the commission is saying is that they think it should be limited to that and it should be tangible and concrete rather than completely open-ended.

• 1015

Mr. John McKay: I understand your argument.

The Acting Chair (Mrs. Sheila Finestone): Thank you very much. It's been a very enlightening undertaking and I presume you will be welcomed back in the future when we can take a look at the statistics and the information you have presented.

[Translation]

Thank you from the bottom of our hearts.

Ms. Michelle Falardeau-Ramsay: Thank you very much.

[English]

The Acting Chair (Mrs. Sheila Finestone): Ladies and gentlemen, we'll break for a few minutes while we wait to hear from the Council of Canadians with Disabilities. It will be interesting to follow up on the commission's observations with the council.

• 1016

• 1021

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): We're back. Before we begin with these witnesses, I just want to tell colleagues that we've had a request for two extra witnesses on this bill. The Canadian Labour Congress and an organization of federally regulated employees have asked to appear. I think one group did not appear in front of the Senate and the other thinks they got short shrift there. We can fit it into our schedule and they have made the request, so if there's no objection we'll add them to the list.

I'm going to turn the gavel over to the very organized Mrs. Finestone again to continue.

The Acting Chair (Mrs. Sheila Finestone): Now I have to figure out where I am.

[Translation]

Good morning, everyone. Welcome. It is our pleasure to greet the Council of Canadians with Disabilities represented by Ms. Lucie Lemieux-Brassard. Good morning. I am happy to see you again.

Ms. Lucie Lemieux-Brassard (member, Council of Canadians with Disabilities): And I.

The Acting Chair (Mrs. Sheila Finestone): Welcome also to Mr. Scher.

[English]

Mr. Hugh Scher (Chairperson, Human Rights Committee, Council of Canadians with Disabilities): Thank you, Madam Chair. It's a pleasure to be here.

The Acting Chair (Mrs. Sheila Finestone): We're very pleased that you're here. Would you like to proceed with your testimony?

Mr. Hugh Scher: I'd like to take a brief moment to introduce the group and the voice you're going to be hearing from here today on these amendments. First of all, my name is Hugh Scher and I chair the national human rights committee that counsels Canadians with disabilities.

Across Canada, in eight of our provinces, there are organizations of people with a wide variety of different disabilities. These individuals and these groups have come together with five national uni-disability groups, which are groups of people with disabilities representing specific disabilities. There are 8 provincial groups together with 5 national groups spanning 8 provinces and several communities and municipalities within those provinces, representing approximately 250,000 people with disabilities. They have come together and they form the Council of Canadians with Disabilities.

The group that is speaking to you here today is the umbrella organization of the organizations of which I've spoken and serves as the voice of people with disabilities across Canada and internationally as a member of Disabled Peoples' International. We deal with governments at all levels, but most importantly, as a national disability organization we deal with the federal government on citizenship issues affecting people with disabilities.

Of the Canadian population, 17% has a disability of some kind or another. We speak as people with disabilities for people with disabilities about citizenship concerns.

• 1025

The duty to accommodate is a concept that is viewed by people with disabilities as central and integral to our participation in all aspects of social, political, and economic life in Canada. Only through accommodation can people with disabilities access our social institutions and access the economic and political opportunities offered by Canada. Only through accommodation and equality can people with disabilities access their citizenship.

The amendment you have before you is one of the most fundamental to the lives of people with disabilities. It affects how we work, it affects how we travel, it affects where we live, and it affects our ability to engage in the workplaces across this country. It is integral to our social well-being.

This is not a new concept. The duty to accommodate has been recognized through jurisprudence in each of the provincial jurisdictions in Canada. It has been recognized by the superior courts and the Supreme Court of Canada repeatedly as a fundamental and indeed quasi-constitutional right.

I say “quasi-constitutional” because the human rights codes in the provinces of which I've spoken that contain the duty to accommodate receive their legitimacy from our Canadian Charter of Rights and Freedoms. Section 15 of that charter guarantees to all Canadians, including people with disabilities, equality before and under the law and equal benefit and protection of the law.

So the provinces have come together, and the federal government, to put in place legislation that prevents discrimination against people with disabilities.

The legitimacy comes from the Canadian Charter of Rights and Freedoms. The courts indeed have recognized human rights legislation, including the Canada Human Rights Act, as quasi-constitutional in its status. So the jurisprudence and the legislative history with respect to the duty to accommodate and non-discrimination is not new. Indeed, to a large extent it already exists across this country.

Proposals to amend the federal Human Rights Act to include the duty to accommodate explicitly are not new either. This is something that people with disabilities have been fighting to have included in federal legislation for the last 12 to 13 years. Since the time that the Canadian Charter of Rights and Freedoms' equality guarantees came into place, people with disabilities have been fighting to include a duty to accommodate in the Canadian Human Rights Act.

There have been several efforts over the years to implement that provision. Under our former Conservative government and then Justice Minister Kim Campbell there were efforts to incorporate the duty to accommodate. That amendment did not pass because it was not considered before the end of the legislative session at the time. It died on the Order Paper.

The federal government during its last term of office introduced, towards the end of its term, just prior to the summer election, provisions to incorporate the duty to accommodate in the Canadian Human Rights Act. Again, due to political timing, that act unfortunately died on the Order Paper. Quickly this government has responded in recognition of the history, both legislative and jurisprudentially, to reinclude and reintroduce the duty to accommodate into the House of Commons and the Senate. The reason is clear: this legislation is fundamental to the inclusion, access, and equality of people with disabilities in Canada.

• 1030

So we come to speak about this legislation, and we look at the Canada Human Rights Act as the primary vehicle by which the equality rights of people with disabilities can be and is maintained in the private sphere where section 15 of the Canadian Charter of Rights and Freedoms does not apply.

The current government, having reintroduced this bill, recognized the need and the importance of this fundamental right of people with disabilities to equality and to accommodation, and the Council of Canadians with Disabilities believes the formulation of the current bill that the government has put to Parliament represents the perspective of people with disabilities.

By that, I mean that it provides for a positive duty to accommodate people with disabilities, subject to a standard of undue hardship, and it defines undue hardship with respect to health, safety and cost. We would rather not have any restrictions on our equality rights, because we view accommodation as integral to our participation in social life in Canada, but we acknowledge pragmatically that if there are to be limitations, those limitations must be very narrow in scope so as not to trivialize or diminish our most basic citizenship right, the right to equality, the right to access, the right to live like other Canadians do.

With respect to undue hardship, we refer you to the legislative regimes in other provinces, which use the same definitional term: undue hardship subject to cost, health and safety. This is not new, and this Parliament must be very careful if it is to introduce a new concept, because the jurisprudence has developed over the years, based on the provincial human rights codes, to define these terms, to clarify them and to give direction to governments, to courts and to individuals as to how to operate. So Parliament must be very careful and consider very closely a modification that would seek to change 12 years of evolutionary jurisprudence around these concepts.

It is for that reason that in the past we have objected to inclusion of such terms as operational effectiveness or business convenience, because not only do they seek to trivialize and marginalize our fundamental and constitutional equality rights, but they would seek to overturn or interfere with the evolution of equality rights of people with disabilities in Canada over the last 12 to 15 years. I urge you to consider very carefully the past history, the legislative history, and the jurisprudential history before adding provisions or seeking to change provisions that would fundamentally affect how those terms and these concepts are operationalized.

That said, we do not believe there should be limitations, and if there are limitations on our most fundamental rights, based on cost or other factors, those must be based on sensible and understood bases. It is not good enough for an employer to get up and say it's going to cost too much to accommodate, without being able to show what the actual costs are. All too often we see employers and others seeking to justify discrimination on the mythical belief that the cost of equality and accommodation is too great.

• 1035

I submit to you that the cost of not accommodating, of not including people with disabilities in our social and economic mainstream is far too great. That's the cost we will be paying if we do not permit these amendments to go forward in terms of accommodation, and if we do not permit the limitations on those rights to be as minimal as possible.

So in looking at the cost, I urge you to consider those factors and also the realities of accommodation of people with disabilities in the workplace and in other sectors. Most accommodations of people with disabilities can be obtained and are achieved when enhanced and increased communication between the parties happens. Most accommodations do not cost, or they do not cost extensively.

What we are talking about here is the removal of barriers, of obstacles to our participation and to our citizenship. I put it to you that there should be no cost too great for the removal of these barriers to citizenship. People with disabilities demand and are entitled to equality of citizenship. The vehicle by which the playing field is levelled is by way of a duty to accommodate, subject only to minimal factors of restriction.

So I urge you, when looking at undue hardship and cost, to carefully consider the cost of not accommodating people with disabilities, of not having a duty to accommodate continue and the cost of allowing the status quo. I urge you to consider what that means for people with disabilities across this country: the continued marginalization, the continued unemployment and the continued cost to taxpayers, as a consequence.

[Translation]

The Acting Chair (Mrs. Sheila Finestone): Ms. Lemieux- Brassard, have you anything to add

[English]

Ms. Lucie Lemieux-Brossard: Yes. On a second aspect of the citizenship issue, we have to consider the amendment to the Criminal Code. As a citizen I should be able to expect that if I call a police officer, if I am a victim of sexual assault of any sort, I would have the same credibility as any other victim, which we know is not the case.

As a criminologist and probation and parole officer since 1977, being involved with the consultation process with the police chiefs' association and the different law society associations since 1994, I've realized there's a big gap between what should be and what the reality is.

It was fairly amazing from one day to the other for me to end up on the other side of the table. From a professional expecting justice in working with so-called criminals—and I was specialized in sexual deviance and mental health problems—it was fairly amazing to find myself the next day tied down to a bed, not being able to move without the assistance of someone else. Someone else needed to bathe me, to dress me, to feed me, and I had absolutely no control over whatever that person would decide to do with my body.

That is the reality of what is going on across the country and across the world. We receive notes on the Internet from lawyers from other countries trying to figure out how they can defend and go ahead with a legal suit because the judge or the entire system says, well, they're mentally disabled or they don't know what they're talking about, they're quadriplegic; they have muscular dystrophy and we can only interpret what they're trying to say. Who says they didn't give consent? Who says they didn't want it? They must not have any sexual life, so anything is better than nothing.

If we hear that and we gather that because they're calling us, the only positive answer I can give them is clause 2 of Bill S-5. Everyone is telling us that finally something is being done somewhere. We have to look very carefully at the positive aspects and what big step forward we would be making by adopting that clause, which will become section 153.1.

• 1040

In Quebec in the past 18 months we've been conducting some research based on violent situations within a context of maintaining in the community,

[Translation]

on violence toward women with disabilities living in the community?

[English]

What we've realized is that even in the first 18 months—we've done individual interviews and had focus groups with women—they're all talking about horrible stories that friends, or people living near them, male friends, have experienced through care providers.

Unfortunately, with the transfer of the programs as they are right now, there's no minimal or national standard. It goes to the provinces that privatize and regionalize it, and now we are facing the fact that the care services are provided by either designated agencies or private agencies. There are priorities in waiting lists. If you complain, then too bad, you don't have any services.

Can you imagine how you would feel, especially in the mobility impairment section...? But I could talk about mental disability, including mental health and development, because you face the same problem in terms of consent.

Imagine yourself, tomorrow, waking up in a hospital bed and having to go back home, because the services are now home services, but you can't get out of your bed unless someone shows up to help you. You are entirely dependent on that person, even on holidays. If the caregiver shows up late, you miss your transportation, you can't go anywhere. It doesn't matter if you have a class or a job, you can't do your job because of unreasonable accommodation.

The dependency is there, and that's the first thing we as persons with a disability have to learn to live with. We don't accept it, but we have to learn to live with the fact that at one point or another, at different levels of severity, we depend on other people, even on technology. That is our reality. So having to depend on the legislation to ensure that at least a minimum amount of credibility will be given to a victim will be a major step forward, because we don't have it now.

The Acting Chair (Mrs. Sheila Finestone): Could I ask both of you a question before we start, because both your issues have been discussed, as you well know, in years past in front of the committee on human rights, not just in the last few days.

Are you, Mr. Scher, presently satisfied with the wording as it is presented in this Bill S-5?

Mr. Hugh Scher: With respect to accommodation?

The Acting Chair (Mrs. Sheila Finestone): Yes.

Mr. Hugh Scher: The answer would be, yes, I am and our council is.

The Acting Chair (Mrs. Sheila Finestone): Madame Lemieux-Brossard, are you presently satisfied with the legislation as it is being proposed?

Ms. Lucie Lemieux-Brossard: Yes, I am, because the court has already decided on what interpretation should be given to the words that are presented there.

The Acting Chair (Mrs. Sheila Finestone): Thank you very much.

The first question goes to Mr. Forseth.

Mr. Paul Forseth: I would like to ask you about your review of this bill with your particular members and your mandate to make the comments.

You made the claim that you are the voice of the disabled. We have experienced in the past in various committees that organizations, especially umbrella organizations, appearing at various committees in the House of Commons have made assertions and claims that turned out to be not really supported by the rank and file members of their subset groups. So I would just ask you, what have you done specifically with this bill to touch base with the regular membership and what were the results of that exercise?

• 1045

Mr. Hugh Scher: First off, let me answer by saying, as I indicated, that this is not a new bill. When this bill came out, the human rights committee of the Council of Canadians with Disabilities was granted the responsibility to consult, to ensure that people were made aware of the provisions in the act.

Meetings were held within our own community, and representations were sent out describing the legislation to our member groups. We received feedback about that from our member groups. That was then fed down to the council executive and then to the human rights committee.

So after the bill was described, it was sent to the member groups and comments were sought from the member groups and the member organizations. It was discussed at the executive council level. It was then taken back to the human rights committee with the responsibility, again, to go forward and speak to committees such as this one about the bill.

There were also cross-equality-seeking group discussions. We've had discussions with other members of the equality-seeking communities—women's groups, religious organizations, and gay, lesbian and bisexual organizations. The disability community, as I've indicated, over the years has had other consultations as well around the concept of accommodation. They date back, as far as I can remember, to 1985.

I know there were discussion papers written at that time around accommodation. Those, likewise, were distributed amongst the organization's membership. They were discussed. Those papers were sent out, as I indicated, for comment. Those comments were then brought back to council and committee discussions.

It was based on that and those representations from the organizational member groups and individuals associated with the organization that the council's position was formulated.

The disability community, of course, is a large community. The Council of Canadians with Disabilities does not purport to speak for every disabled Canadian. What we do speak for is the consensus of our member organizations, which, through their membership, represent a considerable percentage of the disability population. We consulted with those individuals and groups to reach the position we did.

Ms. Lucie Lemieux-Brossard: I might add that I was a member of the task force that went across the country last year, and what's in there reflects what I heard in every part of the country from both groups and individuals in group meetings.

Mr. Paul Forseth: All right. Certainly you've quite adequately established your credibility.

Is there any part of the bill that you really feel needs amendment? Is there a particular phrase or interpretation that is particularly troublesome to you folks, at this point?

Mr. Hugh Scher: I don't have, per se, issues in terms of drafting, or concept, for that matter, but there are things that aren't in the bill that we would like to see in the bill. This bill reflects what I believe, and our council believes, is really only the first step in the human rights amendment process this Parliament needs to go through.

We would, for example—

Mr. Paul Forseth: I'll intervene at that point. When some bills come forward there's a review clause built in concerning operations. Would you entertain that perhaps the bill, by operation, will have a statutory five-year review concerning just how it's working out?

Mr. Hugh Scher: I don't think that would be helpful in this case. Again, the law that's really being put forward here has in large measure been developed in provincial jurisdictions by the courts in any case. What we're trying to do here is to affirm what the courts have, in some measure, already said, to consolidate what the courts have said.

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For example, I draw your attention to the provision in the bill that indicates that the bill applies both to adverse effect and direct discrimination. That is a very progressive step forward, because the case law to this point has been this way and that way, and it has been very unclear how the law would apply.

So what this bill does is pull together the jurisprudence in that respect and says that the accommodation provisions apply to both direct discrimination—that is, a law that is targeted at a particular group such as people with disabilities, for example, an employment policy that would say people with disabilities need not apply, a specific policy targeted at people with disabilities, with a discriminatory impact—and neutral rules that have an effect of discriminating against people with disabilities.

For example, if there's a building code provision federally that says buildings have to be a certain measurement, 17x28, or whatever the case may be, on its face it's not discriminatory, but if the effect of that is to deny the ability to ensure an accessible washroom is built into a facility, then the effect would be discriminatory, even though the neutral purpose of the bill itself would not.

What this bill does is pull together both aspects of the law of discrimination and indicates that these provisions apply to both of them. There's nothing significantly new here or revolutionary, I would suggest, and I don't think an operations clause of the kind you're talking about would be helpful. In my mind, it would just seek to delay the process of getting on with equality rights for people with disabilities and put, again, a further obstacle in the path of the right of people with disabilities to full citizenship and participation in society.

Mr. Paul Forseth: Are there any further comments?

Ms. Lucie Lemieux-Brossard: I think within the proposed legislation we've talked about, we're still talking about three grounds or three obstacles, measures that could refrain from reasonable accommodation.

It is obvious that in an ideal world, we would prefer to see the financial or the cost issues removed from there, because there are many myths about what it costs to adapt or to accommodate. The Canadian Council on Social Development has been working on it for the past few years, and what we've seen so far is that the average cost of adapting a job or un poste de travail is $350.

It is obvious that we have to make a difference between, if you're considering rebuilding a ramp to have access to the building... For example, here at Parliament Hill you needed two ramps, because the first one didn't respect the national code. It was made of marble and brass. How much did it cost? That's not what we needed. The real expense occurred twice, because it had to be redone, and it was at least five, if not ten, times what was required.

So can we talk about expenses and financial cost to accommodate? Maybe it's time to look also at what is required versus the other side, what the person thinks is required—and especially, I'm looking at the post-secondary level, working with institutions—and not knowing what type of door handles exist, what is required, and asking for accommodation or physical and structural changes that were not required.

But we understand, and I think that's the consensus we reached at the last council meeting, that it is better to go forward with the legislation and see how it works and see if changes are needed, rather than boycott it and not get anything.

The first decision on duty to accommodate is Andrews 1989. We're still not included there, because nothing has been put in legislation to make sure that we are accommodated.

I know it is a very sensitive issue within different groups. Should we squash the proposed legislation because we still have the notion of money, or should we go ahead with it and try to work within the system to try to put guidelines? At council meetings we decided we were going to go ahead with the proposed legislation and work within its boundaries.

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Mr. Paul Forseth: Thank you.

The Acting Chair (Mrs. Sheila Finestone): Thank you very much.

Mr. McKay.

Mr. John McKay: On the issue of duty to accommodate, I'm interested in your interpretation of the concept of cost because your notion and your speech seem to relate to an interesting interpretation of costs.

The second issue relates to who pays at the end of the day. Is the decision restricted to the party itself or should the public be part of each cost issue? To give you an example, if the finding is that the duty to accommodate is too costly to the individual employer or trade union or organization or whatever, should there be an expansive notion with respect to incorporating the public into that cost concept?

Mr. Hugh Scher: What I would say to that is that accommodation is a public responsibility. It is a societal responsibility first and foremost, because we're talking about the most basic citizenship rights of people with disabilities.

There are certain people who have greater abilities to accommodate in terms of cost than others. A bank is going to have a far greater ability to accommodate an individual with a disability because it has far more assets at its disposal than does the grocery store on the corner of the street.

I agree with you that there should be and needs to be a public and collective aspect to the notions of accommodation and cost. We see for example that large employers or large institutions are not fulfilling their accommodation requirements. Thus small individual employers or small companies, who would like to be able but just can't by virtue of cost because they don't have the means, aren't in a position to accommodate for reasons of cost.

What I'd like to see potentially is a collective will brought to this issue. Perhaps what could be established is what we've called an accommodation fund for the large institutions, particularly those large institutions that are forfeiting on their obligations and responsibilities, some of which they've already agreed to. Larger employers and institutions and perhaps governments could have some responsibility to ensure that smaller organizations, where cost is too great, have the means and the resources by which to subsidize those costs. Perhaps that would be a way of dealing with it.

Mr. John McKay: Is this legislation, then, fatally flawed as far as that idea is concerned?

Mr. Hugh Scher: I don't think it goes anywhere near that far. I guess what I'm suggesting to you is that this legislation, though it addresses the primary concern of people with disabilities over the last 12 years, doesn't go very much further than that. This is something we were talking about 12 years ago.

Mr. John McKay: That was my point, because you are linking accommodation to the concept of citizenship.

Mr. Hugh Scher: Yes.

Mr. John McKay: You want to fully participate in citizenship.

Mr. Hugh Scher: Correct.

Mr. John McKay: If I'm a person with a disability and I'm using a banking service, that may or not be an indicium of citizenship. It probably is but it could be argued that it isn't. Is your concept an expansive concept of the duty to accommodate as it links to citizenship?

Ms. Lucie Lemieux-Brossard: As a citizen I consider that I should be able to do exactly what I was doing before I was in a wheelchair. That is a citizenship issue. Whatever you do, I should be able to do it. If going to the bank and using an instant teller fits you, then it should fit me. I think that's why we should take a more macro-systemic approach to it.

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For the employer and the union, at this point, when they say, gee, one of our guys has been hurt on the job and we can't get him back—you are stealing our job because we want to get our guy back—gee, too bad. If the place had been accommodated before, you wouldn't have to fight to get your guy back. He would be back in, and I could get in.

So we have to look more at a general, systemic approach instead of just one issue or one point. I think that's probably why it took so long before we finally got here today on that issue.

In terms of cost, if you're looking at it today, already there are tax issues and deductions for employers who do accommodate their job sites. There are already deductions for other groups that want to provide services or help on how to do it. I think we have to stop seeing the accommodation of persons with disabilities as a good favour we do you guys. I think it is part of us as citizens, and how we can achieve our moral development and social values as all human beings living in the same society.

So if you see something that doesn't please you, then it should incite you, or give you the drive, to correct it. This is not only for us in this particular case. In some cases, I'm on the other side. It's a general thing.

I think we have to realize that actually we've been talking...and we've been hearing about redistributing de la richesse. I think it applies in this issue too, but as a general and macrosystemic approach, everyone has a share. Everyone has a duty to accommodate.

Mr. Hugh Scher: Perhaps I could add one very small point to the issue of systemic discrimination and the redressing of that.

Some people look at people with disabilities as broken, and who need to be fixed in order to fit into the elements of society. If I'm in a wheelchair and I come in to sit at the table but the table's too low—I can't get my legs underneath the table—the problem is me. My legs aren't working the way everybody else's are, so I have to be fixed, rather than the issue being that we should raise the table.

That's accommodation. That's respect. That's dignity. That's equality. That's fundamental to citizenship. That's what we're talking about.

Mr. John McKay: The issue that's in the bill is that the cost of the accommodation falls to the employer or to the organization of some kind or another, and what you're talking about is that the duty to accommodate is in fact one of the indicia of citizenship—different concepts, profoundly different concepts in some respects.

Thanks.

The Acting Chair (Mrs. Sheila Finestone): Thank you, Mr. McKay.

Madame Dalphond-Guiral.

[Translation]

Ms. Madeleine Dalphond-Guiral: I would like to address my question to Ms. Lemieux-Brassard, and change the subject to some extent. I will tell you that, when I was elected as a Member of the House in 1993, the first thing I did was insist on having a bathroom with a door wide enough to turn a wheelchair. I asked for a ramp and designated parking. You can see that my concept of accommodation is consistent with everything you have said.

I want to talk about amendments to the Criminal Code that are included in this Bill and I would like to ask whether the maximum sentence contemplated for any person in a position of authority or a personal relationship appears to you fair and sufficient. A maximum sentence of five years is the issue here.

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Ms. Lucie Lemieux-Brassard: When we begin dealing with the question of penalty or sentence as such, it seems to me that we're talking about full legislative review. I think it would be inappropriate for me to become involved in a quantitative discussion, considering the amount of pressure at this time from all sides to review all sentences, minimum sentences in particular.

There are principles to be applied here. This is the key point of my argument, and the argument adopted by the Council. My life is worth neither more nor less than anyone else's. It is up to me to determine whether my quality of life is good, and whether it's what I want. It's not up to someone else to determine or evaluate my quality of life. I am the one to decide what I want to do with my life, not someone else.

I think that, starting from these three principles, currently supported by the entire community, it is clear that there should be no double standards. If we're talking about a misdemeanour, a crime or an offence that resembles what is currently covered under the Criminal Code, the sentence must be the same, whatever the quantum.

This is how I see the situation, because the numbers may vary from one amendment to another, even in codes of procedure and directives to the Judicial Council. There are rules of criminal law that apply to both minimum and maximum sentences. The principle that must be remembered is that for similar situations there must be similar sentences.

Ms. Madeleine Dalphond-Guiral: I would nonetheless like to ask if there are not some people with disabilities who would be more vulnerable than others in the long run. Should the concept of vulnerability be considered?

Ms. Lucie Lemieux-Brassard: Of course, and that's what Section 153.1 is for. Depending on the context, we are all vulnerable as soon as we are different, whether on the basis of legislative standards or government directives. We are even more vulnerable. Depending on the type of disability, people have different support systems and are dependent on different factors. In reality, wherever there is dependence, there is vulnerability. This is why Section 153.1 has been proposed. It is in that spirit that I joined the group and I have supported the section from the start.

Ms. Madeleine Dalphond-Guiral: So, it is a section that you approve of completely, as written.

Ms. Lucie Lemieux-Brassard: Yes. It is essential.

Ms. Madeleine Dalphond-Guiral: I agree.

Ms. Lucie Lemieux-Brassard: By the way, I would like to say that you have no extra-wide parking places with room for side ramps.

Ms. Madeleine Dalphond-Guiral: We required them to be the width of a van.

Ms. Lucie Lemieux-Brassard: Yes, but there is no room to lower a ramp on the side to get out of the van.

Ms. Madeleine Dalphond-Guiral: At the Commons; not in my office.

The Acting Chair (Mrs. Sheila Finestone): Have you finished Ms. Dalphond-Guiral?

Ms. Madeleine Dalphond-Guiral: Yes.

The Acting Chair (Mrs. Sheila Finestone): Thank you. Mr. Lee.

[English]

Mr. Derek Lee: I'd like to go back to the Criminal Code amendment. First, you're aware that there are sections of the Criminal Code now that criminalize sexual assault—I know you're aware of that—and provide penalties, and that provide enhanced penalties for situations including a circumstance of trust. They exist as we sit here now. Now we have a new amendment, and it certainly does pay attention to the circumstances of those who are mentally or physically disabled.

Can I ask you to describe for us what you understand the criminalized conduct, specifically the criminalized conduct in this section, to be? Precisely what does this section criminalize?

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Ms. Lucie Lemieux-Brossard: It criminalizes three different things for different people. For a person who is dependent on another person—that's what we define as authority, with the value of dependency. For example, you're pretty aggressively lately; maybe if I let you masturbate me, it will relieve your tension. We've heard that many times before. That would be something criminalized.

To counsel that the person pay for services would also be criminalized. For the same person to engage directly in sexual activities without the formal consent of the person engaging in sexual activities—not to talk about it, but to engage in the sexual activity—would be criminal.

Mr. Derek Lee: So you believe this section prohibits the actual engaging in sexual activity or touching. It is your belief that is included as a prohibited item in this section.

Ms. Lucie Lemieux-Brossard: Yes, and it was also the belief of all the other lawyers who have been involved in the consultation in the past four years.

Mr. Derek Lee: Okay. As I read it, this section prohibits only the inviting, the counselling, or the inciting. If I am correct in my reading, would you agree that an element in this section that you thought was there is not there?

Ms. Lucie Lemieux-Brossard: No, because there are four ways—and I could refer to different law teachers who talk about interpretation of legislation. There are different techniques to interpret and to understand the legislative text.

The first thing is that legislation or a text should be understood in its general context. If for sexual purpose someone “invites, counsels, or incites the person with the disability to touch, directly or indirectly”—but you have directly—“with a part of the body or with an object, the body of any person...”. How can you touch the body of someone if you don't do it?

Mr. Derek Lee: You may have missed my point. The operative words here are that it is an offence for a person to invite, counsel, or incite to do those things, but it is not an offence to do those things, as I read it. Do you differ with me on that?

Ms. Lucie Lemieux-Brossard: Let me read it in French.

If you can find a wording that would include it, I wouldn't object.

Mr. Derek Lee: I hear you. I think we're still looking for the wording.

Ms. Lucie Lemieux-Brossard: I think what is there and the actual direction given by the court do cover it.

Mr. Derek Lee: Okay, let's leave it where it is. You've at least picked up on what I've suggested. You may have to read it again and think about it.

This particular section, as it is written, would apply to a legal spouse or a common-law spouse, would it not?

Ms. Lucie Lemieux-Brossard: Yes.

Mr. Derek Lee: A spouse or a partner who invited sexual touching?

Ms. Lucie Lemieux-Brossard: Without consent.

Mr. Derek Lee: Yes, without consent.

Ms. Lucie Lemieux-Brossard: As it is already in the Criminal Code.

Mr. Derek Lee: No, I'm sorry, that's not so.

Ms. Lucie Lemieux-Brossard: In Canada it is illegal. Rape of your spouse is illegal.

Mr. Derek Lee: No, this particular section deals with the invitation, not the touching.

It is an offence to assault someone sexually without their consent, but it is not an offence in Canadian law to invite sexual relations without consent. The only place where it is—I should say there's a proviso—is with children, who are incapable of giving consent.

This section essentially places disabled persons in the same category as children who can't give consent and makes it an offence for an individual to invite sexual contact. This section, as I've already indicated, doesn't prohibit the sexual contact; it prohibits only the invitation. You're therefore placing a spouse, in my view, or a partner of a disabled person in a circumstance in which they will technically be committing a criminal offence to invite sexual contact. Would you care to respond to that suggestion?

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Mr. Hugh Scher: Perhaps, Mr. Lee, I can address your comment. I'm a lawyer myself, so I'm familiar with the interpretation of legislation. If what you say is correct, you'd be saying correctly that to invite and to elicit that kind of sexual activity...counsel and incite are offences. But to follow your logic, you'd be saying that if a person actually went ahead and did it without consent, they would then be guilty of a sexual assault. Is that—

Mr. Derek Lee: Well, that's what the law says. If someone assaults someone sexually without their consent, that is an offence already.

Mr. Hugh Scher: That's right, but as for eliciting, inciting, or... Understand where this is coming from. I'll talk about it in context and then I'll come to the specifics.

Mr. Derek Lee: I think we all do understand the context. There is a serious problem out there of sexual assault on people who are disabled, physically and mentally. There is a very serious problem. I understand the intent of the section, and I endorse that intent. I just suggest we may be looking for wording.

I want to give you another perspective, and I'll ask you to respond to it.

This section would prohibit an activity, an invitation to sexual conduct, that is otherwise our charter-protected right, with the exception of dealing with children. An individual who wished to have sexual relations with a person who is disabled would, by virtue of this section, have that right taken away. That right as I read it now—I'm being very technical—is a charter-protected right. I'm suggesting that the way this section is worded it might be challengeable under the charter. I can't imagine anybody going down that road, but the court would have to find that prohibiting somebody from inviting a sexual relationship would be a reasonably justified curtailment of a charter right.

Mr. Hugh Scher: I think I understand where you're coming from, so perhaps I can address it this way. I don't read the legislation as you do, and that's because implicit in the legislation as it's drafted is the term “consent”. It's consent to invite, consent to elicit, consent to induce these things, to counsel. So consent is the fundamental component of this, and consent is essential as a means of engaging in sexual activity, especially as between a person who is in a trust position and somebody who is in a dependent position. This legislation is putting in place the requirement of consent before engaging with the person.

Mr. Derek Lee: Before communicating with the person—

Mr. Hugh Scher: As it indicates, before—

Mr. Derek Lee: —inviting counselling.

Mr. Hugh Scher: Yes, that's right, eliciting directly or indirectly, counselling, or inciting the person to do a sexual activity. It's saying that consent is the requirement before it can take place. It's not saying that married spouses—

The Acting Chair (Mrs. Sheila Finestone): Is that before the invitation can take place or before the acceptance of the invitation? I think that's what Mr. Lee is—

Mr. Hugh Scher: It's before the invitation can even take place.

Mr. Derek Lee: In my view, not only is it imposing the consent but—and this more importantly—it is imposing criminality.

Mr. Hugh Scher: No, it's imposing consent. Criminality is for a judge to determine.

Mr. Derek Lee: To invite without the consent is criminal by this section.

Mr. Hugh Scher: That's correct.

Mr. Derek Lee: Thank you.

Ms. Lucie Lemieux-Brossard: I think we have to look at the section with the four very, very important words: trust, authority, dependency, and consent. In the end I cannot see how I could let you invite me to touch you and not understand that I'm not consenting to your invitation. I think we have to see what is written there.

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You are not allowed to invite me to touch you or touch your body, or you touch me with your body or an object, if I don't consent. If I consent, there's no problem.

Mr. Derek Lee: Even if I'm their spouse?

Ms. Lucie Lemieux-Brossard: I do that with my husband. Ask him. If I don't consent, he won't do anything.

Mr. Derek Lee: But your spouse would be in a position where he is constrained by a Criminal Code section.

Ms. Lucie Lemieux-Brossard: It won't change anything.

Mr. Derek Lee: Until we get a difficult case in the courts at some point, where these lines will be drawn more clearly.

Ms. Lucie Lemieux-Brossard: Isn't that how the law evolves? I think that's what it's supposed... I don't see what it would change.

Mr. Derek Lee: Thank you.

The Acting Chair (Mrs. Sheila Finestone): There may well be a technicality of language that Mr. Lee has picked up. He's very meticulous in his concern for the well-being of the disabled, and there should be no potential for any kind of misunderstanding by any judge who may not be as well informed, and I say this with advance advice. If doctors have to get refresher courses, maybe lawyers and judges should too.

If you wouldn't mind reviewing this issue and then getting back to Mr. Lee, that might be helpful in both cases. This was the subject of quite a discussion the other day.

Would that be all right with you, Mr. Lee?

Mr. Derek Lee: Sure, yes.

Mr. Hugh Scher: It is our intention to provide a written brief to the committee. In that context, we can include our explanation of the section and how it would apply practically so as to allay your concerns.

Mr. Derek Lee: Thank you.

The Acting Chair (Mrs. Sheila Finestone): In your opening remarks, Mr. Scher, you indicated that this was sort of like putting the housekeeping in writing—issues that had been addressed across the country and now were being consolidated within the law—but that you had additional issues you hoped would be addressed along the way. I hope you will include those additional issues when you present your brief so that we could at least look at them.

Mr. Hugh Scher: They are included in our brief, as is the issue with respect to the regulation-making power, which I've not talked about here. Our comments about the regulation-making power with the governor in council, as opposed to with the commission itself, will be raised in our brief. So too will our commendation of Parliament for the six-month period it provides before regulations are promulgated into law, to permit consultation on them. We view that as a significant advance if one is to stay with the governor in council model of regulation making. All of these matters will be included in our written brief.

The Acting Chair (Mrs. Sheila Finestone): Were you here for the presentation from the Canadian Human Rights Commission?

Mr. Hugh Scher: I was here for part of it.

The Acting Chair (Mrs. Sheila Finestone): So you will be responding to their observation of concern in that regard.

Mr. Hugh Scher: I don't think we're responding to it. I think we've shared it over the years.

The Acting Chair (Mrs. Sheila Finestone): Their concern or the way the present bill is written?

Mr. Hugh Scher: We've shared their concern over the years as to how the regulation-making authority is acted upon and is put in, but in terms of the legislation, we're in favour of the way it is right now.

The Acting Chair (Mrs. Sheila Finestone): Thank you.

Mr. Hugh Scher: It wasn't our first choice but it was an acceptable one.

The Acting Chair (Mrs. Sheila Finestone): Thank you. I think it's important for us to know that and we would appreciate your including that clearly within the brief.

Mr. Hugh Scher: We will.

The Acting Chair (Mrs. Sheila Finestone): Colleagues, is there anyone else who wishes to propose any questions?

Do you have any closing remarks?

Mr. Hugh Scher: Briefly, I want to say that the amendments we're talking about here are not revolutionary. They are merely a first step to put in place what people with disabilities have been requesting for the last 12 to 15 years. The importance of these amendments to the day-to-day lives of people with disabilities cannot be overstated. They impact how we work, travel, live and how we're able to access social, political and economic life in Canada. It impacts on our basic citizenship as Canadians.

It is our goal to have these amendments put in place so that we can then move on to the more substantive human rights review, a review of the commission's structures and processes that will ensure people with disabilities are able to effectively have their complaints move through the system, that will ensure investigators at the commission receive appropriate and adequate training to respond to and address the issues arising out of discrimination cases and accommodation cases.

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It is our hope that the Parliament of Canada will move forward quickly with new grounds and new amendments, including social condition as a factor. It is our concern that the Parliament of Canada will not leave the human rights field as it pertains to people with disabilities where it lies in this bill, but that, building on this, they will move to what we view are the more substantive and critical continuing concerns that we as a community have, once our basic accommodation and equality rights are reflected in the legislation that governs the private sphere of federal action.

Thank you for your time here today. We hope you'll consider our remarks and the importance of these amendments to our community.

The Acting Chair (Mrs. Sheila Finestone): Thank you very much. You are both eloquent and effective communicators. Having listened to the human rights concerns in the field of the disabled since Equality Now!, Equality for All and Employment Equity: a Commitment to Merit starting in 1984, I think it would be helpful if at some point you looked at the evolution of Canadian society to meet the societal values that you so carefully and with such skill presented to us, because I do think that we have taken a march forward.

I was very pleased to hear, particularly from you, Madame Brossard, that you were prepared to go with this and test it out within the framework of the law, because I think it's an acknowledgement and a recognition that society has evolved. After 22 or 23 years, although it is not perfect, at least the road map is well in place.

Thank you for being witnesses here today for us.

There is no other business. The meeting is adjourned.