I am certainly pleased to be here with my deputy minister and pleased for the opportunity to be able to present on Bill today. I look forward to answering any questions.
In my remarks today, I will outline the broad objectives of the bill, take you through some specific amendments, and then respond to three points that were raised during second reading debate.
Bill , an act to amend the Canadian Human Rights Act and the Criminal Code, is an important step forward in protecting the equality, dignity, security, and freedom of transgender and gender-diverse Canadians.
Trans Canadians, like all Canadians, should have an equal opportunity to make for themselves the lives that they are able and wish to have. Indeed, all Canadians should be free to be themselves, without fear of discrimination, hate propaganda, and hate crime. Sadly, this is not yet the experience of many trans people.
As you are aware, trans and gender-diverse people face an elevated risk of violence, including physical and sexual assault, and verbal, physical, and sexual harassment. They also face significant obstacles in obtaining and advancing in employment, and not because of their lack of qualifications but because of discrimination.
Yet our human rights protections and criminal law do not explicitly protect this vulnerable group. With Bill , Parliament has the opportunity to affirm in clear language that trans and gender-diverse people are entitled to equal protection from discrimination, hate propaganda, and hate crime.
Canada is strengthened by its diversity. Diversity flourishes when our laws and institutions promote social inclusion and participation for all, which is fundamentally what this bill seeks to do. To this end, Bill proposes to make three amendments.
It would amend the Canadian Human Rights Act to add two prohibited grounds of discrimination: gender identity and gender expression. As a result of this amendment, it would be a discriminatory practice, in matters of employment and the provision of goods, services, facilities, and accommodation in the federal jurisdiction, to disadvantage people because of their gender identity or gender expression.
This bill also proposes to amend the Criminal Code. It would expand the list of identifiable groups that are protected from hate propaganda by adding gender identity or expression to the list.
Finally, it would make it clear that hatred on the basis of gender identity or expression should be considered an aggravating factor in sentencing for criminal offences.
It is not the first time that parliamentarians are studying this issue. Indeed, this House has already passed substantially the same bill twice before. Moreover, most provinces have already made similar amendments. I believe these amendments are overdue. Nevertheless, it is evident from the debate in the House that there are questions about why we need to enact these amendments and what they will do. I listened carefully to the debate and I acknowledged the perspectives of my fellow parliamentarians. I would like to address some of the questions today.
Some wondered whether the amendments are necessary. It was pointed out that trans people may already complain of discrimination on the ground of sex under the Canadian Human Rights Act, and that the hate crime sentencing provision is open-ended and would therefore already include gender identity and expression. Allow me to offer three responses.
First, Canadians should be able to turn to our fundamental laws, like the Canadian Human Rights Act and the Criminal Code, and see their rights and obligations spelled out clearly. Promoting access to justice means working on an ongoing basis to make our laws as clear and easy as possible for everyone to understand.
Trans people who feel they have been discriminated against should not have to become experts in legal interpretation to advocate for their basic rights. Employers and service providers should know explicitly what legal duties they have towards their employees and customers. Adding these grounds to the Canadian Human Rights Act as well as the Criminal Code would ensure they are clear for all to see.
Second, Canadians expect parliamentarians to speak on their behalf to the social issues of the day and to affirm their fundamental rights. With this bill, Parliament has the opportunity to affirm that all Canadians should be free and feel safe to be themselves. The House can stand with trans and gender-diverse people to affirm their equal rights.
It is more than a symbolic gesture; this is about embedding new language of respect and inclusion in two important laws that set basic norms about how we conduct ourselves on a daily basis. This is about the Government of Canada sending a clear message that all Canadians are protected by and have the benefit of the law.
The third reason will be of special interest to this committee in its role of studying and recommending improvements to Canada's justice system. This legislation would fill an important gap in the criminal law. The Criminal Code's hate propaganda offences currently extend to the ground of sex, but there is no mention of gender identity or expression. As you know, gender identity is not the same characteristic as sex. Since criminal prohibitions are interpreted narrowly, in order to ensure that the offence protects against hate propaganda which targets trans and gender-diverse individuals because of their gender identity and expression, it is important for Parliament to legislate explicitly on this point.
We also heard questions about why gender identity and expression are not defined and whether their meaning is too subjective. Again, let me offer some comments.
Gender identity and expression are now found in most provincial human rights codes. Commissions, tribunals, and courts are expected to elaborate the meaning of such grounds in a reasonable way, with reference to the purpose of the law. They clarify these grounds, and indeed all grounds, through application of real-life examples, allowing the law to respond to individual situations in line with its purpose.
This does not mean that grounds are completely open-ended or that people can claim protection on a whim. There are real limits to what any ground can mean. The Federal Court of Appeal has insisted that the grounds of discrimination in the Canadian Human Rights Act must be interpreted in ways that do not trivialize the Canadian Human Rights Act's important role in the legal system. By way of comparison, the ground of religion is also undefined in the act, yet one's religious beliefs are subjectively determined. As the Supreme Court of Canada has stated, legal protection depends on the religious beliefs being sincere, a requirement that tribunals and courts are used to assessing on an individual basis.
Finally, we've heard that there are diverse understandings of sex and gender in Canada. Some may ask whether these amendments would lead to criminal prosecution of people who express disapproval of diverse gender identities or expressions. The answer is no. As explained in the statement of potential charter impacts that I tabled at second reading, the amendments to the hate propaganda provisions respect freedom of thought, belief, opinion, and expression in a free and democratic society. The criminal prohibitions on hate propaganda impose a narrow limit on expression. This limit is demonstrably justified in a free and democratic society, given the important objective being pursued, namely, to target extreme and dangerous speech that one, advocates genocide; two, wilfully promotes hatred; or three, incites hatred in a public place likely to cause a breach of the peace against vulnerable groups. The target is speech that promotes unusually strong and deeply felt emotions of detestation or vilification, which is far from the expression of religious faith, dissenting views, or even opinion that some may find offensive.
The Canadian Human Rights Act is concerned with protecting for all persons, equal access to goods, services, and employment in the federally regulated sector. It is not concerned with regulating the expression of one's beliefs. Rather, the act prohibits discriminatory practices, including harassment when harassment is inflicted in the employment context or in the provision of goods, services, facilities, or accommodation available to the general public, commercial premises, or residential accommodation.
As interpreted by the courts and tribunals, harassment involves serious incidents of persistent treatment that accumulates to create a hostile environment in these contexts.
Many other topics have been raised in debate in the House; however, several of them concerned matters of provincial jurisdiction, and others referred to situations that are outside the scope of the bill, keeping in mind that the Canadian Human Rights Act applies only in the federal sector. This means that it applies to the federal government in its role as employer and service provider and to the federally regulated private sector, including crown corporations, interprovincial and international transportation companies, telecommunications, the postal service, and chartered banks.
To conclude, I encourage this committee to focus on the real subject matter of this bill. It is about equal opportunity for trans and gender-diverse persons in employment and in access to goods and services. It is about increasing their sense of security and freedom from the most extreme forms of hate speech, including calls for genocide and its promotion. It's about denouncing what we know are still all-too-frequent acts of violence and other crimes when they target persons out of bias, prejudice, or hatred based on an individual's gender identity or expression.
Surely we can all agree that these objectives are pressing and in urgent need of being addressed. Bill would make the amendments needed to pursue these crucial objectives.
Thank you for the opportunity. I look forward to questions.
Thank you, Minister, for coming to committee twice in one week.
Mr. Pentney, thank you for coming as well and for the good work you do on our behalf. Mr. Pentney, I'd like to start with you.
In a Department of Justice backgrounder issued on May 17, 2016, the department, which I assume you are responsible for, stated that the Criminal Code also provides that a judge, when sentencing someone for having committed an offence, must consider any relevant aggravating circumstances, including whether the offence was motivated by bias, prejudice, or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disabilities, sexual orientation, or any other similar factor. It went on to say that this phrase is broad enough to include gender identity or expression.
That is a backgrounder from your department, sir.
I'm wondering how changing the Criminal Code as this bill is suggesting to do would impact criminal proceedings. What are, really, the palpable differences? Also, are there things that are covered in Bill that presently don't exist in either the Canadian Human Rights Act or the Criminal Code?
I don't argue with what you're saying, although that's not consistent with what your backgrounder said in May of this year. Your backgrounder suggested there were no gaps and currently everything would be covered under existing legislation.
On November 27, 2012, at the Standing Committee on Justice and Human Rights, Mr. Ian Fine, acting secretary general, Secretary General's Office, Canadian Human Rights Commission, stated, “the commission, the tribunal, and the courts view gender identity and gender expression as protected by the Canadian Human Rights Act.” He went on further to say, “if someone experiences discrimination based on gender identity or gender expression, they are currently protected under the Canadian Human Rights Act.”
On June 3, 2013, before the Senate Standing Committee on Human Rights, David Langtry, the acting chief commissioner of the Canadian Human Rights Commission, stated, “the tribunal and the courts view gender identity and gender expression as protected by the Canadian Human Rights Commission”. He also went on to state, “When someone experiences discrimination based on gender identity or gender expression, they are protected under the Canadian Human Rights Act. The commission already accepts complaints that raise transgender issues.”
Minister, in May of this year, you were participating in CTV's Power Play with Don Martin. In response to a question regarding legal recourse, you stated, “There is recourse under the Canadian Human Rights Act in terms of sexual orientation.”
By your own admission, this bill doesn't change anything. Why have you chosen to put forward a bill that really doesn't add a lot of value and for which the meaningfulness is minimal?
Mr. Chair, I am very pleased to be able to join the committee for this session, and I'm very pleased to be able to talk to the minister about this today.
I want to recognize the sense of urgency with which you've adopted your approach to this legislation. Mr. Falk has raised questions that are theoretical, for the future, on what may happen. To me, what is important about this bill is that it addresses what actually happens every day in our society. Mr. Bittle made reference to high levels of unemployment among the transgender community, despite very high education levels in general, and the very severe poverty suffered as a result of those levels of unemployment in the transgender community, plus very elevated levels of violence. So I applaud you for the sense of urgency in which you have brought the bill forward.
This has been before Parliament in one form or another for nearly 12 years, and it has already passed the House of Commons twice, only to die in the Senate—the unelected Senate, I should say. I really do applaud your sense of urgency and I hope we can keep this bill moving.
Today, your framing this in terms of access to justice is very important and perhaps something we neglected in the past. I particularly like your comments that everyone should not have to be an expert in legal interpretation to discover that this kind of discrimination is prohibited. I think that is key. If some of the arguments are made that this is already covered, that everybody already knows this, then I don't think we'd have these levels of discrimination that take place right now. I don't think everyone understands that this is covered by our various forms of legislation.
Also, there are gaps, as we have acknowledged. By forcing transgender people to go into the legal system and argue that they are like other people. but their discrimination is like something else, adds an unnecessary complication to their approach to the legal system. I think that's very important.
I do actually have a question, and I would like us to talk about what the bill will actually do instead of what it doesn't do. This bill doesn't do anything about bathrooms. This is really not about bathrooms.
There are some areas of federal jurisdiction where it will have an impact, such as discrimination in employment and things like banking where, I have to say, the TD Bank and Royal Bank have run well ahead of the government on this. They have very progressive employment relation policies in place. The unions in federal jurisdictions, like Unifor, have taken very progressive policies in helping come up with ways to transition in the workplace. There is one where there may not be as great an impact, just because people are already moving, and we'd be catching up.
In other areas, I would like to talk a bit about two things. One is corrections and immigration detention, where we have had problems with people being placed in dangerous positions as a result of policies. The other is on the question of air travel and the examination of gender at the gate in airports.
I wonder if you have a comment on either of those, and the kinds of changes we might see as a result of this legislation.
Thanks very much, Mr. Chair.
I want to start by thanking the minister again. When this Parliament resumed, I reintroduced a private member's bill. We had early discussions before this was introduced as a government bill. I feel that the minister has been very respectful of the work that came before her.
I thank all my colleagues for their kind words, but we're not here today because of my work. We're here today because trans Canadians stepped forward to demand the same rights, protections, and respect that all other Canadians have. Some very brave individuals came forward to tell their stories in previous hearings both here in this House and in the Senate. It's that work and that courageous struggle that brings us to this place today.
I don't want to do testifying—I want to ask the minister questions—but frankly, I find Mr. Falk's assertion that there's no gap and no evidence offensive. It disrespects the work that's been done by all the trans activists. It disrespects the fact that Parliament has twice before passed this legislation. The studies are quite clear. There's the Trans PULSE study from Ontario, which laid out the levels of discrimination and the levels of violence that people face. Egale in Toronto did a study of safe schools, about “every school and every class”—I also can't remember the title—which had transgender students testifying that every day, half of them face harassment and more than a quarter of them face violence in the school setting. So the evidence is here that discrimination is very real and there is a need to act. I thank the minister for giving this priority.
My question is about timing again. My private member's bill....
I guess maybe I should say one more thing. The reason “expression” was taken out of my private member's bill was that there were negotiations with a group of members of the Conservative caucus, led by Shelly Glover, who had concerns that the public didn't understand, and that the political repercussions of including “gender expression” would make it difficult. In negotiations over the bill in the last Parliament, I consulted with the trans community, who reluctantly agreed that in order to get a bill through, because of the urgency, it was better to limit the bill somewhat than to have no bill at all. It was a compromise essentially four years ago. I think the public has moved a long way since then in their understanding of these issues.
My bill passed in March 2013, two and a half years before the election, and it spent two and a half years in the Senate. The Senate conducted hearings twice, in two different committees, and ping-ponged the bill around the Senate until it finally died.
My question for the minister is about the Senate and about her expectation for the Senate in dealing with this bill. In saying that, I acknowledge the new appointments today of some very prominent human rights activists among the nine people named to the Senate. I want to know if the minister has given some thought, like all of us, to how government bills now work in this new Senate.