Proceedings of the Standing Senate Committee on
Issue 5 - Evidence
OTTAWA, Wednesday, November 19, 1997
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-5, to amend the Canada Evidence Act and the Criminal Code in respect of persons with disabilities, to amend the Canadian Human Rights Act in respect of persons with disabilities and other matters and to make consequential amendments to other Acts, met this day at 3:30 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
The Chairman: We are pleased to have Professor Jackman with us this afternoon who will now make her presentation.
Professor Martha Jackman, Faculty of Law, University of Ottawa: Thank you for inviting me to appear before your committee. As a professor of constitutional law at the University of Ottawa in the Common Law section, I have a clear and obvious interest in this bill. After some brief opening remarks, I will be pleased to entertain any questions you might have.
The Canadian Human Rights Act is the legislative cornerstone of human rights in Canada. The act guarantees equality of opportunity for all Canadians without discrimination. The act applies to the federal government as an employer and also as a provider of services. Perhaps more importantly, the act applies to those private and commercial entities which are regulated by the federal government including, for example, the telecommunications sector, the banking sector, the armed forces, penitentiaries, et cetera. Any federally regulated industry is subject to the Canadian Human Rights Act and must comply with its requirements respecting non-discrimination.
The Canadian Human Rights Act is also important because it stands as a clear expression by Parliament of Canada's international human rights undertakings. Canada has always been a very active participant in UN human rights efforts, from the UN declaration through to the adoption of the international covenants on political and civil rights, on social, economic and cultural rights, and, most recently, of course, the Beijing Declaration. The Canadian Human Rights Act provides an important and concrete expression of that commitment for the federal government.
The Canadian Human Rights Act is also important in terms of its influence on the interpretation of provincial human rights codes and the equality provisions of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada has drawn heavily on federal human rights code jurisprudence in interpreting section 15, and this has been extremely beneficial for equality rights law in Canada.
While the Canadian Human Rights Act is important law, it is also sadly in serious need of review. I am sure I am not the first witness to tell you this. I commend the government for bringing this bill forward, in particular, for including a new recognition under the act of multiple grounds of discrimination. Complainants will no longer be obliged to fit themselves into specific pigeonholes because multiple discrimination is expressly recognized. In this way, the act will be very progressive.
Section 15(8) of the revised act would also expressly recognize that both direct and indirect discrimination are prohibited. This is also important. The creation of a permanent, full-time tribunal is a great advance. As well, the requirement under the bill that the commission report directly to Parliament rather than through the Department of Justice enhances the stature and independence or perception of independence of the commission and the act.
Lastly, but very importantly, the bill addresses a number of disability-related concerns under the federal Criminal Code and the Canadian Human Rights Act.
I applaud all of these provisions in the bill; however, I have two main criticisms of the bill, and I will discuss those with you today. First, I will discuss what I consider to be the very negative impact of the bill on Canadians living in poverty and, second, I will briefly address the issue of including costs as a limitation on the duty to accommodate under clause 15(2) of the bill. I will explain each of these concerns in turn.
In terms of the impact of the bill on poverty and people living in poverty, as you are well aware, the Senate has a long and commendable history of concern and action in the area of poverty. The 1971 report of the Special Senate Committee on Poverty, "Poverty in Canada", was a landmark report. In 1991, the Standing Senate Committee on Social Affairs, Science and Technology published its report "Children in Poverty: Towards a Better Future." This was also an extremely thorough and well-researched report with concrete and important recommendations. The Senate can take credit for the fact that it was one of the first bodies to begin to think in terms of a social deficit -- the long-term social costs of poverty for Canadians. In fact, the committee commissioned research to study this issue. In that regard, it was a pioneering piece of work.
Most recently, your colleague Senator Erminie Cohen wrote a report called "Sounding the Alarm: Poverty in Canada." In the preface to her report, she refers to the work of many other individual senators in the area of poverty. As well, in the preface to her report, Senator Cohen states that in the 25 years since "Poverty in Canada" was published by the Senate, the face of poverty in our country has aged, not gracefully or with dignity, but through deprivation and hardship, hastened in part by government policies that do not reflect a real understanding of the social and political consequences of poverty.
I would argue that this bill, in terms of what it does not say, is an example of this type of neglect or perhaps wilful blindness of the political, legal, social, and economic consequences of poverty in Canada and, perhaps even more importantly, the increasing political, social, economic and legal marginalization of the poor as individuals and as a group within our community.
Most telling is the fact that the Canada Human Rights Act, as it is presently drafted and in its proposed revisions, is meant to address the most egregious forms of disadvantage and inequality which Canadians face, but the bill does not include any reference to poverty. Poverty clearly underlies and exacerbates the forms of disadvantage which are expressly recognized in the bill, but poverty also creates its own distinct disadvantage.
My first submission to your committee is that you amend the bill to include poverty or social condition among the prohibited grounds of discrimination that are included under section 3(1) of the act. I will take a few moments to give you some of the reasons why I consider it to be appropriate and indeed necessary for your committee to take this step to include poverty as an expressly enumerated prohibited ground.
First, and most importantly, is the distinct and unique role which the Senate plays within our legislative branch. It will be no surprise to you that many of the individuals and groups working in the human rights area were pleased that the executive branch decided to send this bill to the Senate before it went on to the house. The Senate is recognized as being far more immune to the political pressures which members of the House of Commons face in reviewing and amending federal bills. In particular, I think it is fair to say that there is an attenuated relationship between the Senate and the executive branch of government, so that the dominance of the legislative branch by the executive that we see in the House of Commons is not quite so visible in the Senate, and I think that Canadians can have some reasonable expectation the Senate will act more independently when reviewing federal bills. This is important to the individuals and groups which will be appearing to argue for changes to the bill.
The next reason I think it is important and appropriate for the Senate to act in this regard is, as I mentioned earlier, the political marginalization of the poor in Canada at the moment. Over the past decade, the House of Commons has focused almost exclusively on the problem of the fiscal deficit. It has entirely ignored the issue of the social deficit, that is to say, the extent to which cutting social programs and services in fact creates costs for society which we will indeed have to pay for in financial terms further on down the road.
The poor are not well represented in Canada, neither in the House of Commons nor here in the Senate. However, because of the pressures which elected members of the House of Commons face, it is highly improbable that the House will take an initiative on poverty issues. The poor, as I mentioned, are not well represented -- in fact, pretty much not represented at all -- in the House of Commons, nor are they well represented or well served by the executive branch. If we rely on the House of Commons for action in this area, I think we will be disappointed.
In addition, Canada has undertaken a number of important human rights undertakings in the area of social and economic rights. The year 1997 was recognized as the international year for the eradication of poverty and the beginning of the international decade for the eradication of poverty. The executive and the House of Commons have done little to mark this event.
In 1993, the UN committee reviewing Canada's compliance with the international covenant on social and economic rights considered Canada's performance in this area. In its final report, the committee noted the disappointing lack of progress in Canada, a very affluent country, in the decade since the adoption of the international covenant and its ratification by Canada, in combating poverty, and, in particular, in combating poverty among the most vulnerable groups in Canadian society, including sole-support mothers and aboriginal people.
In its recommendations in the final report, the UN committee pointed to the need for concrete legislative action to better recognize the rights of the poor under Canadian legislation. Clearly, the Canadian Human Rights Act would be an important area in which this legislative neglect of the rights of the poor could be remedied.
Furthermore, protection of the poor against discrimination is already provided for under several provincial human rights codes in jurisdictions of varying ideological views. Under the Quebec Charter of Human Rights and Freedoms, social condition is already recognized as a prohibited ground of discrimination, and the Quebec commission has interpreted the idea of social condition as including receipt of welfare assistance and source of income, so it has been read broadly as a anti-poverty provision. The Newfoundland Human Rights Code also protects against discrimination on the basis of social condition. The Saskatchewan, Manitoba and Nova Scotia human rights codes protect against discrimination on the basis of source of income; and the Ontario code protects individuals in receipt of social assistance against discrimination on the basis of receipt of social assistance. Several provinces have already acted to recognize discrimination against poverty, so recognition under the federal human rights act of social condition as a prohibited ground would not be a radical departure.
Importantly, as a constitutional scholar I probably say most importantly, I would argue that this amendment of the Canadian Human Rights Act is clearly mandated by the Canadian Constitution. Section 15 of the Canadian Charter of Rights and Freedoms provides all Canadians with a right to equal protection and equal benefit of the law without discrimination on the basis of disadvantage. Lower court, appellate, and supreme court interpretation of the Charter make it clear that poverty will be recognized as a non-enumerated ground of discrimination. One can argue in a doctrinally conservative way that the failure by the Canadian Human Rights Act to protect poor Canadians against discrimination deprives them of equal benefit of Canadian human rights law and therefore violates the charter.
Section 32 of the charter makes it clear that the charter applies to Parliament and to the Government of Canada; and section 52 provides that the Charter, as with other parts of the Constitution, are the supreme law of Canada. I would argue that there is a duty on the executive and legislative branch to comply with the Charter without waiting for it to be enforced through litigation. This is particularly true from the perspective of poor people who lack the resources and means to bring forward the type of litigation which would be necessary to have the courts dictate to the legislature that the act needs to be amended.
This committee is in an excellent position to save poor Canadians the hardship and heartbreak of trying to litigate for this type of amendment, as well as in a good position to save Canadian taxpayers the money which the Justice Department would spend in trying to defend what is clearly an unconstitutional law as it presently stands.
I know that the Justice Department has suggested that they will be engaging in a full-scale review of the act. One might ask the question: Why not leave this to a full-scale review? I must express some scepticism about this promise. For over a decade, the federal government has been promising to amend the Canadian Human Rights Act. This is the first time that proposed legislation has actually been introduced in the house.
I was involved in some of the negotiations around amending the bill before the federal election, and there is no question that there was a lot of politics and a lot of electioneering going on with the pre-election bill. A number of things were not included in the bill because there was simply a perception on the part of the Justice Department that these would not be big sellers in the federal election.
With the very crowded legislative agenda that currently exists and the fractious nature of the house, I and other experts in human rights law, as well as the groups which work in this area, have absolutely no optimism that a full-scale review of the act, if it occurs, will actually result in new legislation being introduced in the house before the next election.
It is my view that this is not simply the first kick at the can, but potentially the last kick at the can for the next decade. For poor people, to delay on this issue would be not only unconstitutional in its implications, but also terribly unfair. Poor Canadians are already facing well-documented discrimination in areas of federal jurisdiction.
I would like to refer in particular to a June 1996 report to Industry Canada by the ACEF Centre in Montreal which carefully and thoroughly documented the type of discrimination poor Canadians currently face in their access to banking services, an area of clear and exclusive federal jurisdiction. Unless the federal government acts in this regard, poor people will continue to face this type of discrimination and other discrimination under Canadian law.
As I mentioned before, the Canadian Human Rights Act has an important symbolic role. If the Senate acts to amend this bill in the way I am suggesting, it will provide a further spur to those who are lobbying for equivalent changes in other provincial human rights codes.
There is also an important relationship between the Canadian Human Rights Act and the Charter. Action by the Senate to amend the bill so that the Canadian Human Rights Act explicitly recognizes social condition as a prohibited ground will also influence the interpretation of Canadian law more generally in terms of the equality of rights of the poor. This gesture will be a concrete action by the legislature, the Senate in particular, to respond to the report and recommendations of the UN committee which looked at this area.
In conclusion on this issue, poverty is an important human rights issue. It is increasingly important as the poor are increasingly marginalized in Canadian society. If the Senate acts to amend the bill as I am suggesting, poor people will be comforted in feeling that their voice can be heard in Ottawa, notwithstanding their lack of electoral representation.
The last question I would ask is: Why not amend the bill? It is always open to the executive to explain to or convince the members of this committee why this discriminatory feature of the Canadian Human Rights Act must be maintained. I think the onus should be on the executive to explain to you why the act should remain discriminatory and unconstitutional in regard to the rights of the poor.
The second submission I will make will be shorter and quite direct. You will hear this from other experts and groups who will appear before you. It relates to the proposed new section 15(2), specifically, the duty to accommodate. As you know, once a complainant succeeds in proving that he or she has been discriminated against within the meaning of the act, this discrimination must be remedied unless, pursuant to 15(2), it can be shown that remedying the discrimination would result in undue hardship.
In existing human rights law, the notion of undue hardship entails a high standard of justification. Clause 15(2), as it is presently formulated, introduces a new and disturbing qualification to the notion of undue hardship. Clause 15(2) proposes that one can argue undue hardship in terms of the cost of remedying discrimination, and qualifies the existing right under the Canadian Human Rights Act not to be discriminated against with a caveat that discrimination will be tolerated if it would be too expensive to remedy it.
We must ask the question: What will be the implications of this new qualification on a well-understood and well-established right to non-discrimination? I would refer you to the recent case of Elderidge v. British Columbia (Attorney General) decided by the Supreme Court of Canada. As you may recall, the Supreme Court of Canada declared in the recent Elderidge decision that failure to include sign language interpretation services as part of the health services that are subsidized by the Province of British Columbia violates the equality of rights of the poor in the sense that it discriminates against them on the basis of their disability. In the Elderidge case, the Attorney General of British Columbia and all the government interveners in that case went to the Supreme Court and said that the court should refuse to grant the Elderidges' equality claim because it would be too expensive and have severe financial repercussions for health care spending in the provinces. In the Elderidge case, the Attorneys General made this argument in spite of the fact that there was clear evidence accepted at trial that the cost of providing sign language interpretation services to the deaf in B.C. would cost $150,000 a year, this in a provincial health care budget of $6 billion. Notwithstanding what appeared to be a trivial amount of money and a clear and egregious violation of the equality of rights of the deaf, every Attorney General who appeared before the court argued that the claim should be denied because it would be too expensive to grant -- that it would entail undue costs for the state.
Under the Canadian Charter of Rights and Freedoms and the jurisprudence which has evolved under the Charter, and referring directly to Canadian human rights jurisprudence which does not recognize cost as a legitimate factor for depriving an individual of his or her equality rights, the Supreme Court of Canada rejected the Attorney General's arguments. They held that, once a claim of discrimination had been proven, the Elderidges were entitled to a remedy, and they rejected the idea that asking the state to spend any kind of money was an illegitimate exercise for the courts.
In this context, the impact of the proposed section 15(2) of the Canadian Human Rights Act is unclear because it entrenches a consideration which, until now, the courts have rejected. The situation which 15(2) creates is especially problematic from the perspective of poor Canadians. In most cases, they are harmed not by some discriminatory action by the state, but by the failure of the state to act to ensure their equality. In almost every claim that one could imagine a poor Canadian raising under the Canadian Human Rights Act, the remedy will have some kind of cost implications.
I would like to go back to the situation of the banks. What did the banks argue when presented with evidence of their discriminatory practices in regards to poor people? They say it would be costly for them -- too costly to provide equal access to banking services for the poor.
Under the proposed section 15(2), the door is wide open for that kind of justification. Not only must a complainant argue that he or she has been discriminated against, they must also argue that the remedy they are seeking will not have cost implications. That is simply not realistic and is contrary to equality rights and human rights jurisprudence up to now in Canada.
I would request, and I believe a number of other human rights experts and groups will also be requesting, that you strike out the qualification of cost under clause 15(2) of the bill. If you are unwilling to actually strike out cost as a consideration, at a minimum, your committee should qualify the notion of cost with the expression "excessive" so that it remains for the entity which has violated the right to equality or which has discriminated to prove undue hardship in terms of excessive cost and not simply any cost.
As Senator Cogger has already mentioned, clause 15(3) of the bill also raises real concerns. It provides cabinet with a regulatory power to define undue hardship. This is completely anomalous in human rights legislation. It takes the power to define undue hardship away from the courts and away from the Human Rights Commission and places it in the hands of cabinet. One can easily imagine the concerns raised by this. If the federal government looses a human rights complaint, it simply adopts a regulation to counter the effect. This is a regulatory power in the human rights area.
This is of great concern. Instead of a public review, debate and discussion of a bill before your committee in the Senate and then before the House of Commons and then a committee of the House of Commons, we would simply have cabinet regulation.
If your committee considers that such a power is necessary, or if the executive is able to convince you that such a regulatory power is necessary, surely, at a minimum, it belongs to the Human Rights Commission and not to the cabinet -- that is to say, it belongs to the entity which actually has expertise in defining notions like undue hardship.
I will conclude by saying this is a very important bill. It is a bill which is sorely in need of review. Human rights experts and groups are hopeful that this committee will take its role seriously in reviewing the bill and in listening to the proposals that are put you to you for amendments, because we are not confident there will be any kind of second chance on this bill in the next decade.
Thank you for taking the time to listen to me. I would be happy to answer any questions you might have.
The Chairman: Thank you, professor.
Senator Kinsella: Thank you for your excellent presentation, Professor Jackman.
We must look at this bill from the parliamentary standpoint and the timelines of Parliament. We had a debate at second reading on the bill, and many of us support the principle of the bill. The bill would not be in committee had we not voted to support the bill in principle. However, my inclination is that the committee should complete its work on this bill and have third reading on the bill in the Senate on December 10, which is International Human Rights Day. December 10, 1997 will mark the beginning of the 50th anniversary of the proclamation of the Universal Declaration of Human Rights, and it would be a great contribution by this chamber in Parliament if we were able to achieve that objective.
Having said that, it means that this committee and our colleagues who report back to the Senate would have to remain focussed on what has been presented. There are areas within the context of the bill and the model of the bill with which we can deal.
Having said that, I would be enthusiastic to consider the Canadian Human Rights Act and the role that the Human Rights Commission could play with respect to both the international covenants. As you know, in Australia, the Australian Human Rights Commission, the national commission, has the role of promoting the human rights contained in both the international covenants.
What do you think of the idea of the Canadian Human Rights Commission receiving the mandate to promote and enforce, domestically, the provisions of both the international covenants, in particular the international covenant on economic, social and cultural rights which speaks quite directly to the matter of poverty, and which contain an outline of human rights, notwithstanding the opinion of the report of the joint committee on the Charlottetown Accord chaired by our colleague Senator Beaudoin and Madam Dobbie, which at page 83 said that economic, social and cultural rights were not really rights but privileges? You will find that in that report. In debate we pointed out that, in the covenants, they are human rights.
There is a tremendous need for Canadians to understand, first, that the rights in covenants are human rights and, second, how we can use that international standard which was agreed upon by the Government of Canada with the concurrence of every jurisdiction in Canada in 1976.
My question relates to your general concern on the issue of poverty. What do you think of approaching it in that way?
Ms Jackman: Of course I would be thrilled to see the commission's mandate expanded in that regard, although I would see the two steps as being complementary.
What is clearly missing in our existing federal code is social condition in terms of the equality rights that are contained in the international covenants.
There is a debate in Canada about the justiciability of social and economic rights. My former colleague Senator Beaudoin and I disagree profoundly on this issue, and we have done so in the past.
I am a strange advocate of recognition in Canada of social and economic rights -- the rights of the poor. I believe that right now we have a two-tier system of human rights protection which is very disadvantageous to poor people. I know that your committee and the Senate would receive huge support from anti-poverty groups, women's groups and other equality-seeking groups if you proposed that kind of measure. At the moment, not only do we not have any implementation mechanism for the covenant, we have no domestic avenue for review. Currently, there is no forum in Canada for the notion of a petition or request that something at least be examined. If you are talking about a civil or political right, you can litigate, but if you are talking about a social right, a right to food, for example, which is being sorely tested in Canada at the moment, there is absolutely no avenue, and this marginalizes the issues which are most important for the most disadvantaged Canadians.
Senator Kinsella: I agree with you. I think that the Human Rights Commission, under that type of model, would be playing the role of a social auditor.
Senator Gigantès: Can the Human Rights Commission, in your view, play the role that Senator Kinsella is suggesting in the absence of actual legislation recognizing those rights and mandating the commission to apply that particular law?
Ms Jackman: The commission cannot unilaterally enforce. Because of our division of powers in Canada, the enforcement of many of the rights that are contained in the international covenant require provincial legislative action. However, the commission can examine and report.
I would like to give as an example the repeal in the 1995 budget of the Canada Assistance Plan. This was a very big step backward in terms of our compliance with the international covenant. Again, there was no forum for bringing these concerns to the attention of the legislatures or the public. Most Canadians have no idea that the federal government repealed the only social and economic rights implementing mechanism that we had.
Even though the commission obviously cannot legislate, and nor can it enforce the rights in terms of implementing legislation, I think the investigative reporting, public education mandate, which the commission already enjoys on paper, would be most appropriate in this area.
Senator Kinsella: Your suggestion is that we add to the proscribed grounds of discrimination contained in the present Human Rights Act "social condition," "source of income" or some similar ground as was done in Newfoundland and Quebec.
You also said that it is probably already covered. Are you referring to the situation in the Haig case where the court said you must read certain things into the Canadian Human Rights Act?
Ms Jackman: Within the next few years, if the legislature does not act, there will be litigation on this. It is, to my mind, a real shame that poor Canadians are forced to go to the court to have a right recognized which should so clearly exist. However, the device would be to argue that failure to include social condition in the statute, which is meant to guarantee the equality rights of poor people not to be discriminated against, is a violation of the section. I can say, from a very conservative, doctrinal position, that this case will be victorious. However, it will take a lot of money, time and hardship from a constituency that has no money and no time.
Senator Gigantès: But much hardship.
Senator Beaudoin: I wish to say, first, that I am glad to be back at the legal committee. However, at the same time, I have some regrets because I have been misunderstood in certain stances I have taken.
I am in favour or economic and social rights, and that they should be defined as rights and not privileges, as Senator Kinsella has said. Our problems arise when we try to define them. To define economic rights is probably somewhat easier than defining social rights but, nonetheless, definitions always create difficulties.
That being said, I was most impressed by your suggestion and I agree with the principle that the word "poverty" should be included.
Senator Gigantès: It is there. Poverty is with us all the time.
Senator Beaudoin: Poverty is with us, but the word is not included in the section.
How will this be dealt with in practice by a court such as the Supreme Court? It is one thing to say that we should not discriminate on the basis of poverty, but how can we make that work in practice?
Ms Jackman: Forgive me for suggesting that you did not support social and economic rights. It is the justiciability issue where we probably disagree.
Senator Beaudoin: Yes. I always say that it is easy for a court of justice to rule on freedom of expression, freedom of religion and so on, but when we are concerned with the definition of social rights it is quite another story. If that is what you meant, I agree with you.
Ms Jackman: Perhaps I can go back to the banking example, although I will also take an example where the federal government is providing a service, because there were some real concerns about that.
My banking example is one where a person shows up at the wicket with his or her welfare cheque and asks for it to be cashed. The bank teller will ask the customer if he or she has an account at that bank. If the person does not have such an account -- and it may be because they do not have adequate identification, or because they move a lot, or because they do not like going to any bank because they may feel intimidated -- the teller may refuse to cash the cheque or, alternatively, the teller may say that the bank will cash the cheque but insist that the person open an account. They may say, "Because we do not know you, and because you look a little `iffy', we will hold your cheque for four or five days."
For a person with a welfare cheque as a sole source of income, this creates difficulty. What do these people do? They go to cheque-cashing services where they must pay a 5 per cent to a 15 per cent premium, or they go to the Loeb store and they cash their cheque by buying groceries. Essentially, they are deprived of services which we all take for granted -- a bank account, ready access to our money, and a cash card.
I am recommending that the expression to be entrenched should be "social condition" because the Quebec commission has already examined this concept. It has been entrenched in the Quebec Charter of Human Rights for some time. It has a well recognized meaning. It is also found in the Newfoundland code. It is not a new expression. To entrench "poverty" might raise a few more concerns, but "social condition" is an expression which has a well-understood meaning.
A potential banking client could argue before the federal commission, with the evidence of the report by ACEF Centre, that there is discrimination by the banking industry in the provision of banking services on the basis of social condition. If you are poor, you get a lesser quality of banking services. In fact, in many banks, you get no service.
That would be a clear example. Then the bank would have to justify to the commission, before a tribunal, why it would be an undue hardship for the bank to provide the same quality of services to poor people that we take for granted as middle-class Canadians.
The Canadian code does allow now, with this proposed section 15.2, a section-1 type of debate between the entity accused of discrimination and the tribunal or the victim where they discuss how certain actions can be justified. In the case of banking, it would be very difficult for banks to argue that it would be an undue hardship to provide equal banking services. They just would prefer not to do it; they are inherently conservative.
In terms of the government as a provider of services, obviously the issue becomes more difficult. I would go back to the most radical example I can think of -- the repeal of the Canada Assistance Plan. The Canada Assistance Plan provided that the federal government would only transfer welfare moneys to provinces if they ensured that people receiving welfare were receiving it because they were in need. It did not involve any other kind of investigation about whether they were a good parent or whether they should be on workfare instead. They must be entitled to welfare based on need in order for the province to be eligible for the transfer of funds.
One might argue that the repeal of the Canada Assistance Plan amounted to a policy, a legislative fiscal choice, that discriminated against poor people.
Senator Beaudoin: I agree with that. Your explanation seems to be quite logical. Is the word "poverty" found in any other statute? Has it been construed in the way you are suggesting?
Ms Jackman: Because "poverty" is not included in any provincial code, the answer is no, but "social condition" has been invoked in two cases in Quebec. One case could cover a residential tenancy situation where someone wants to rent an apartment but is denied tenancy because he or she is on welfare. The landlord may refuse to accept the welfare recipient as a tenant, even though he might be able to provide a damage deposit and have a good track record as a tenant. The landlord simply may not want to have a welfare recipient in his building.
Senator Beaudoin: That is discrimination.
Ms Jackman: That is not recognized under the federal code.
Senator Beaudoin: If you enshrine the word "poverty," it would be included, or even the term "social condition."
Ms Jackman: In Quebec, it has been read as discriminatory for a landlord to deny tenancy just by virtue of the fact that the applicant may be a welfare mother.
That is discriminatory. It is intuitively correct for us to say that.
Senator Beaudoin: You have convinced me that it will be a little more difficult to remedy the situation as it relates to banks.
Ms Jackman: This committee of the Senate has been charged with the responsibility for reading and revising this bill before it is passed. Amend the bill as I am suggesting and then have the Justice Department or the house explain to you why the Canadian Human Rights Act, should continue to deprive poor Canadians of the same guarantees held by every other group. As I say, the most egregious forms of disadvantage -- race, sex, sexual orientation -- are protected. The poor are not.
Senator Beaudoin: Are you suggesting that as an amendment to this bill?
Ms Jackman: I am asking that you amend section 3.1 of the bill to include "social condition" in the list of proscribed grounds. We would have race, sex, sexual orientation and social condition explicitly in the bill. I do not believe that this is a radical thing for this committee to do.
Senator Pearson: I agree with Senator Beaudoin that the inclusion of "social condition" makes a lot of sense. I have the same problem, from a practical point of view, of what it would actually mean in a federal human rights act. Banks, of course, come under federal regulation. As to your example of the difficulty in cashing a welfare cheque, I think that attitude makes no sense because a government cheque should be honoured by everyone.
However a general refusal to cash cheques can happen to anyone. It has happened to my children; some of them are poor and some are not. I have not viewed it as a discrimination against any group of people. I am speaking of cheques generally, and not of government cheques. There is a balance there where the regulations presumably apply to everyone across the board.
Can you give me some practical examples of what difference we would make in the lives of Canadians by amending the human rights act this way?
Ms Jackman: I would urge you to read the well-researched report by the ACEF Centre. Consider the percentage of poor people who do not have bank accounts and the percentage of poor people whose cheques are routinely refused as opposed to being refused from time to time. Look at the percentage of poor people who are forced to use cheque-cashing services and to pay a big premium to do that.
The banking example is very well documented, and I will provide to the clerk or the researcher the reference for the report. It was submitted in French and English to Industry Canada who, I am sure, can make it available to your committee. It provides a lot of not only anecdotal but some very strong empirical evidence relating to the banking sector.
Senator Pearson: That would be helpful.
Ms Jackman: In terms of a practical example, that is one where the evidence does exist and it is clear.
Apart from the practical significance in terms of individual poor people going to the commission and complaining about individual acts of discrimination, that is important, I have also made the point about the leadership and symbolic influence of the Canadian Human Rights Act. It is the cornerstone of Canadian human rights law. It interacts with the Charter. It is an expression of our commitment to our international human rights guarantees; and it has a big hole in it. The hole is the recognition of the rights of poor people not to be discriminated against because they are poor.
Senator Pearson: We all accept that particular point. The difficulty is how one goes about it. I understand what you have described in the banking examples you have given, but I know of many people with lots of money whose cheques have not been cashed. That has happened to me.
Ms Jackman: The onus is on the complainant to prove discrimination. If a poor person chose to go to the commissioner, or if a group like ACEF Centre which represents poor people decided to go to the commission, they must prove, in accordance with legal principles under the act, that the discrimination has occurred. That onus is on any complainant of discrimination.
Senator Pearson: Do you have other examples to give us, apart from banking situations?
Ms Jackman: Telecommunications is another federally regulated sector. We take access to bank cards, cable TV and telephones for granted. Cable TV and telephone are two other areas in which people living in poverty have much more difficulty than middle-class people do in getting services. Telephone is a good example.
Senator Pearson: What do you mean?
Ms Jackman: I do not know how long it has been since you went to the Bell phone centre to get your phone, but the kind of proof of financial viability that you have to provide in order to get telephone services, like any other municipal utilities, can be onerous.
It is not the written policies of the service provider, it is the discretion. There was litigation in Peterborough about gas company practices as they related to asking people to provide a record of being a customer. If you are unable to do that, you cannot get service.
In any kind of telecommunication service -- and there has not been the research to document it, but there is anecdotal evidence -- poor people, as a rule, do not get the same quality or access to services as middle-class Canadians. This discrepancy is a result of not only their economic circumstances, but also because of stereotyping about who they are and why they are what they are.
Senator Cohen's report bears eloquent witness to what I am describing.
Senator Pearson: It is helpful if one is making a case to have a few very concrete examples that people understand as real discrimination that could be taken to court.
Senator Watt: Do you have any information that would enlighten me as I try to figure out where the aboriginal people fit into this scenario?
Ms Jackman: As you know, the Canadian Human Rights Act, does not apply to the Indian Act. I know there were some discussions about that and some concerns expressed about the failure of the act to apply, because that is an area of federal jurisdiction which one would ordinarily expect to be covered by this act.
I do not hold myself out as an expert in suggesting to your committee that you act one way or the other. However, in terms of the consultations that took place with the Department of Justice when this bill was at the draft stage, the failure of the act to extend to the Indian Act and to Indian people was an issue that was raised.
That would be a very interesting question for your committee to ask of the justice officials. This is potentially another omission in the bill where, again, there was some suggestion that, perhaps, in a second phase omnibus review of the bill, this would be addressed. For the same reasons, I do not think poverty will see the light of day in this government's mandate. I would not expect the aboriginal issue to be addressed, either. It may be one that you would want to pursue, because it is another serious question mark in the act.
Senator Watt: Do you have any information on the aboriginal community being recognized as a people by the United Nations?
Ms Jackman: I know that indigenous groups representing indigenous people in Canada and in other jurisdictions have mounted an effective lobby at the UN level for the adoption of an international covenant on the rights of indigenous people. However, this is not an area about which I can say much.
Senator Watt: Do you have any information as to whether or not that issue has been advanced, or whether it remains in the predicament of not being able to be recognized?
Ms Jackman: To this point, the covenant has not been adopted. Indigenous people are lobbying strongly for it. There is much support in the sister communities in which I work for equality-seeking initiatives.
Senator Watt: Coming to the point that you raised about this coming under the federal jurisdiction, this section allows the Government of Canada to administer the interests of the aboriginal people. That is the subject.
Since this bill does not accommodate race or sex, how does your proposal assist? Can this aid the aboriginal people in that they could be classified as coming within certain social conditions, be it poverty or something else? Would that be one step towards being able to address the issue you raised, even if you do not spearhead it as an aboriginal issue? Is that your interpretation?
Ms Jackman: Section 3(1) protects individuals on the basis of race, as well as ethnic origin. Aboriginal people are protected from discrimination based on race.
As you know better than the rest of us, aboriginal people have suffered economic disadvantage in disproportionate numbers. Aboriginal people are amongst the poorest people in Canada. An area that the UN committee reviewing Canada's compliance with the social and economic covenant noted was the failure of Canada to address poverty amongst aboriginal people.
To the extent that poor people suffer discrimination, aboriginal people suffer twice the discrimination. If social conditions were added as a prohibited ground of discrimination under the act, then the proposed section 3.1 would be very useful because aboriginal persons could claim that they have been denied banking services. It may be because a person is of aboriginal origin or because they are poor.
The proposed section 3.1 recognizes multiple grounds of discrimination and would make it much easier for an aboriginal complainant.
Senator Gigantès: My heart is with you but we will be faced with disciples of that famous Irish political economist Murphy whose golden rule is that those who have the gold, rule. The bankers will come and say, "Are you asking us to lend money to someone who has absolutely no tangible asset when we cannot have any guarantee of recovering this loan?" That is my first point.
My second point is that they will say, with modern means of photocopying and digital imaging, making false welfare cheques is a breeze, and a really clever guy can hack into the list of people who have been given welfare cheques and add names. They will ask why we are asking them to take such risks at the expense of the shareholders of their banks? How will we respond to them?
Ms Jackman: You have two answers on both points. On the first point, the the effect of amending the bill would be to prevent the banks from discriminating against poor people. It is not discriminatory for a bank to say, "I will not lend you money if you have no ability to show how you will pay it back." What the banks are doing at the moment is denying poor people services that everyone else receives.
I am absolutely with you. I would fully expect the banks to make that argument if they got wind that the Senate was seriously considering this. That would be spurious. What is prohibited is discrimination.
As to fraud, again this is an issue of undue hardship. Presumably the banks take all kinds of steps to protect themselves against fraud and fraudulent cheques. The issue is this: Why is the step they take in relation to fraudulent welfare changes to simply refuse to cash them? Again, the onus goes to the bank to give you evidence that this is rational rather than based simply on stereotypes and the easiest way.
Senator Gigantès: I see your point.
What about another ground for discrimination that appears in international politics? There are places in the Maritimes and in Quebec where people are fired from their jobs because they do not belong to the party that has just taken power. We have had a whole epidemic of that since the PQ took power in Quebec. In some Atlantic provinces, it is well known that, when the government changes, there is a wholesale exit from the public service, down to the lowest clerks and the people who pave the roads. They will be replaced by others. Would you favour politics to be included?
Ms Jackman: Political conviction is a well-recognized ground in many international and domestic treaties. A person is fortunate if that happens to them in Quebec, because it is the only province in Canada where there are guarantees against discrimination on the basis of political conviction.
Senator Kinsella: It happens in Newfoundland as well.
Senator Gigantès: It takes place, though.
Ms Jackman: At least we have a statutory human rights protection. I would be in favour of that, of course, living in Ontario as I do and not sharing the ideology of the particular party in power. However, my particular axe to grind at the moment is not that one.
Senator Gigantès: President Roosevelt was against welfare and for workfare. He was well organized. The city of Key West was a collection of smelly shacks. Through workfare, it is what it is today. People with the necessary specialties who were unemployed were sent there with engineers and whoever, and they did a beautiful job. That was workfare. They were not to be given any money unless they participated in that particular job.
I am not talking of trying to impose this on the sick or on single moms. However, why should healthy single males not be told, "You cannot have welfare because we have some decent projects where you might learn some manual skills"?
Ms Jackman: In every jurisdiction in Canada, the waiting lists for employment opportunity programs exceed the spaces available. People on welfare want to work. The problem is that the available programs are too few in number and inadequate.
I think it is fair to say that the C.D. Howe Institute agrees that, when you have governments imposing workfare as a blanket requirement for ideological reasons, you are guaranteed to have an underfunded, ineffective program that is just busy work and does not permit people to get back to work. That is the problem with it. The good programs have waiting lists far longer than the programs can accommodate.
Senator Cogger: If it is your view, it is not discriminatory for a bank to refuse credit to someone who cannot show ability to repay, would you not then agree that simple services, such as phone service, are a form of extension of credit? The minute Ma Bell installs a phone in someone's home, nothing prevents that person from running up a bill of several thousands of dollars. I would suggest, therefore, that it is perfectly in order for the provider of the service to exercise some discretion as to the credibility or the credit worthiness of the seeker of the service. Would you agree?
Ms Jackman: I would argue that there is not really a difference of degree in those two situations. I am suggesting that it is perfectly legitimate for the banks to apply the same lending criteria to all potential borrowers. That would not be discriminatory. However, what is happening with the phone companies is that the same criteria is not being applied.
When I ask for a phone, because I can show proof of employment and an address where I have lived for more than two years, an assumption is made that I will pay my bill. No further questions are asked.
Senator Cogger: What about the issuance of a credit card? Do you not recognize the right of the issuer to assess the history of credit or credit worthiness of the party making the application? Should not anyone have the same right?
Ms Jackman: I am suggesting that the same criteria should be applied to all. I am constantly invited to apply for ever-increasing, exorbitant credit limits on all kinds of credit cards. The bank has a lot of control. It issues the credit and puts a limit on it.
Senator Cogger: But the phone company that installs the phone cannot put a limit on it.
Ms Jackman: They can suspend the service if I do not pay my bill.
Senator Cogger: Yes, they would suspend the service after you had run up an outrageous bill.
Ms Jackman: Again, it is a business. In this computer age, they can easily control what kind of debit they allow me to run up before they decide they will no longer let me use the service.
Senator Cogger: That would be discriminatory because they would monitor you, and they would not monitor my telephone.
Ms Jackman: The point I am trying to make is that federally regulated service providers -- and I use banks as an example because I want to use an area where there is documented evidence -- are discriminating on the basis of stereotype rather than factual credit history.
Senator Gigantès: The famous J. P. Getty was so sick of paying huge phone bills incurred by his rich guests, that he installed coin telephones beside every bed.
Senator Cogger: You would have us amend the bill to withdraw the notion of cost from one of the criteria of hardship. We would merely retain health and safety. Is that your proposal?
Ms Jackman: With regard to this bill, yes, I am suggesting that cost should be scrapped as a limiting consideration. This would keep the bill in line with human rights case law and other statutes.
Senator Cogger: As I recall, the last time we discussed that, someone raised a matter of heritage buildings. I pointed out to Ms Falardeau-Ramsay that they would not have a right to look into these matters under these criteria, and she told me that they would come in under costs, for instance.
What you are suggesting is that, if the provider or the person who is the alleged discriminator cannot prove a health or safety reason, regardless of the costs, he will have to comply.
I do not want to get too philosophical here; but removing the notion of costs in a bill that imposes duties and responsibilities on providers of services, seems to me to be devoid of connection to the real world. Of course, in the ideal world, costs would not be a factor.
Ms Jackman: I am not usually in such good company, but in interpreting section 15 of the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada has held that one cannot justify discrimination on the basis of cost. Where it is significant is in terms of a remedy. This legislation is being enforced by a commission and a tribunal. Tribunal members, like judges, are inherently conservative. I can assure you that to go to a tribunal or to a court and to argue a remedy for discrimination which imposes the slightest financial obligation on the state is to run a big risk.
Many of us believed that we might well lose the Elderidge case, even though we were talking about $150,000 as compared to $6 billion. That was because we have examples of case law where the courts have said, "We are in times of fiscal restraint. It is not appropriate to order the government to spend money to remedy discrimination."
You need not worry that, by qualifying the notion of cost with "excessive" you will open the floodgates to tribunals and courts ordering the state or the private sector to pay out hundreds of thousands of dollars to victims of discrimination.
Senator Cogger: Why not? If the notion of excessive cost is the only item in the balance between that and outright spending, once you have removed that only criterion, then I suspect you are, indeed, opening the floodgate. Technically, for instance, you could tell the Caisses populaires that ramps are needed in every single locale in the country. Cost would not be a factor, if you cannot invoke health or safety.
I sympathize with you. I understand your position, but it seems to me to be connected to an ideal world and it may be weak in that it fails to take into consideration the everyday reality.
Ms Jackman: I hear what you saying, senator. All I can say in my own defence is that I am profoundly in touch with the real world of this type of litigation. I can assure you that the decision makers are extremely conservative. When you add the word "cost," it legitimates a pre-existing but often inarticulate practice of denying equality rights if it could possibly cost the state money.
We have not found another human rights statute that introduces this notion. It does not exist. This would be a first and, as I say, a disturbing first.
The Chairman: Are you saying that there is not another piece of legislation that brings in the idea of costs?
Ms Jackman: We have not been able to find another human rights code that qualified "undue hardship" with the word "cost." This is radical and I, would argue, regressive.
The Chairman: What about Ontario?
Senator Cogger: Let us say we were to strike out health, safety and cost -- that is, strike out the last five words -- I would suggest that the provider of services can still argue costs under undue hardship at any time. Presumably there is other legislation elsewhere that involves the notion of undue hardship. Maybe we are only being a little more honest or up front about it by including the notion of costs.
Ms Jackman: The notion of undue hardship has a well established meaning in human rights case law. If you scrapped the words, "considering health, safety and costs," from my point of view that would be preferable. You would then be relying upon the tribunals and the courts to continue in their practice of interpreting the idea of undue hardship.
Senator Cogger: When you say it is well known in jurisprudence, does that take into account costs?
Ms Jackman: Historically, the notion of undue hardship has included cost, safety and health related considerations.
Senator Cogger: We are being up front. What is wrong with that?
Ms Jackman: In the case law, to prove undue hardship based on cost, as I mentioned in my opening remarks, has been a heavy burden on the person attempting to defend the discrimination.
Senator Cogger: You seem to argue that, not only does the party discriminated against have to prove discrimination, but has to prove no undue hardship. I beg to differ. Although the party has to prove discrimination, it is for the provider to prove that he cannot correct the situation because of undue hardship. The burden of proof is not on the discriminated party.
Ms Jackman: As the law is written, yes; but you would be negligent in arguing, if you did not address the defence that will be raised.
Senator Cogger: There is a major difference between presenting your case and defending a rebuttal.
Ms Jackman: Perhaps I am confused. I did not mean to suggest that the complainant had the burden.
Senator Cogger: Technically, the complainant can say, "My Lord, I have proved there is discrimination. I rest my case." He can stop right there. It is then for the other party to try to rebut the allegation of discrimination itself. Should he fail in that regard, he would then have to prove undue hardship.
Ms Jackman: Yes. He would have to prove that remedying the discrimination would impose undue hardship.
Senator Lewis: What we sometimes tend to forget is that life is hard and life is unfair. Some of the answers to the questions that have been asked have dealt with the points I wanted to raise, in particular, the matters raised by Senator Beaudoin.
It seems to me there needs to be a definition of "poverty" or "social condition." Where it would start and end, I do not know. It would be an onerous task to draft those definitions.
Laying aside altogether the provisions of the Bills of Exchange Act and the Bank Act, what would be the practical result of a bank refusing to cash a person's cheque because of their social condition? If that person made a complaint to the Human Rights Commission, I suppose there would be action taken against the bank. The bank would be put to the expense of employing a lawyer to defend itself and there would be no answer to it from a practical point of view.
Ms Jackman: The person whose cheque was not cashed cannot simply go to the commission and complain of being discriminated against because of poverty. The person complaining must convince the commission, and subsequently a tribunal, that a systematic failure to cash people's welfare cheques amounts to a discriminatory practice against poor people or welfare recipients.
I use the term "social condition" because the Quebec commission in particular has spent some time considering and defining what is meant by "social condition." It would include things like source of income and receipt of social assistance. These are the types of things which are generally understood as being included in "social condition."
I used the banking example because it is well documented as being a systemic discriminatory practice against poor people. If the legislation were amended in the way I am suggesting, the bank might reconsider its current practices and consider whether is it fair or effective to turn away every person who comes to the wicket with a welfare cheque; or whether they should be taking extra steps to make it easier for poor people to open accounts.
Why do poor people not open accounts? Is it because a disproportionate number of them are illiterate and it is very intimidating for them to open an account? Maybe the banks should take extra time and extra steps to help poor people with literacy problems open a bank account.
There are many things banks could do if they had it in mind to provide the same quality of services to poor people as they try to provide to professional people whose business they are constantly chasing. They do not consider it to be in their interests, economic or otherwise, to expend any effort to assess what is necessary in terms of safeguards and procedures around banking services for poor people. There is no onus on them to do it. Systematically, based on stereotypical assumptions about poor people and welfare recipients, they can simply refuse to cash their cheques and refer them to cheque cashing services which charge 5 per cent.
Mr. Lewis: Would one of the alternatives for the commission not be to order the banks to provide this service?
Ms Jackman: The filing and pursuing of a complaint is really a negotiation process. It provides an impetus for action by the person who is the object of the complaint. I am sure that, if there were some sort of coercive backdrop, the commission would be able to give the bank many ideas on how to improve services to poor people which would not be unduly costly.
Mr. Lewis: I am thinking of taking it a step further. It is all very well to provide them with some ideas, but should they go so far as to order them? It is almost like ordering the banks to cash the cheques of anyone who comes in.
Ms Jackman: As I have said, you have to prove discrimination based on an enumerated ground. They are not obliged to cash anyone's cheque. However, they cannot systemically deprive a disadvantaged group, which is recognized under the law, of a service that everyone else gets.
Mr. Lewis: So your quarrel would really be with the policy of the banks.
Ms Jackman: Often it is. Often it is discretion. The teller may be having a bad day and knows that the bank will support this kind of arbitrary decision. If you are a middle-class or well-educated person, you will exhort, insist, go to the next wicket, ask to speak to the manager, and eventually you will probably get the service. However, if you are a poor person, chances are that, if you complain or exhort, it is the security guard that you will meet and not the bank manager.
This is anecdotal, and I am sorry to continue to refer to the banking example, but part of the problem is that the failure to recognize social condition or poverty means that we have very little research or jurisprudence.
Senator Beaudoin can testify to the paucity of human rights scholarship around poverty. There is very little because it is not considered a human rights problem. We are in a transition period where it is increasingly recognized as a human rights problem. Canada, certainly at the federal level, is dragging behind.
Senator Watt: I have a question totally unrelated to the issue we are dealing with, but it deals with the general question of discrimination.
In aboriginal society, particularly on the Inuit side, discriminatory practises were enacted by law, provincially and federally. I refer to individual rights versus collective rights.
Under the collective rights notion, a body that is administering the rights of the individuals is, according to the law, considered one person and has a tendency to override individual rights, and individuals have no recourse. At times they have nowhere to go and therefore become victims. I am speaking from experience. I see that, not on a daily basis, but on a regular basis.
What is your recommendation? Do we require a bill of rights to protect ourselves from ourselves?
The Charter of Rights and Freedoms protects the individual from the wrongdoing of the government. This is similar. How would you deal with that? I know it is not totally related to this, but it should be on the record because sooner or later we will have to deal with this. It is becoming more and more visible as a problem.
Ms Jackman: You are making a very important point. Some of the forward-looking work in this area is making those findings. We are focusing so much on the state, the relationship between the individual and the state where, with the move toward globalization, for example, rights are being trammelled, not by the state, but by private sector interests. This focus may be misguided.
This is the advantage of the Human Rights Act over the Canadian Charter. The Canadian Charter only governs the relationship between the government and the individual, whereas the federal and the provincial human rights codes also control abusive behaviour in the private sector. That is what gives a continuum of rights from the state through to the private corporation. Where we draw the line tends to be at the most private level of individual relations, one on one, private clubs and family relations. At that point, we say, "You have no more guarantees." Certainly, in terms of the private sector, outside the club and the home, this is what this legislation is meant to do.
You can see a continuum with, for example, the employment standards type of legislation. Ideally, you have a continuum of protections in these aspects of your life that are in the realm of the public.
In the area of social and economic rights I have colleagues who are saying that we are barking up the wrong tree and that the rights violator is no longer the government; it is the private corporation, the multinational corporation, the International Monetary Fund that governments cannot control, and that we have to start considering how to regulate those kinds of relationships.
My weakness is that, as a public law and constitutional lawyer, my focus is on the statutes and laws that govern the relationships between the individual and the state. However, I think there is a lot of merit to the question of whether or not our focus is too narrow.
It is important for these types of statutes to be good because they do touch the private sector.
Senator Doyle: A couple of years ago in the prosperous city of Toronto there was something of a scandal when the chartered banks were found to be requiring people with welfare cheques to line up in special queues on busy days. If I am not mistaken, even the commission may have been alerted to that situation and many a strong editorial was written on the subject. If I am not mistaken, the consequence was that those special queues were eliminated.
I only raise that because the banks' practices, which you yourself have said may begin with one tired teller, may become a habit in a busy bank which is downsizing. However, there are ways and means of considering the problem. Might not the provisions be strengthened by a change in language?
Ms Jackman: I must admit that I am not aware of the specific practice of separate queues, although I am sure it might well have existed at different times. I think you are right to say that at some levels you cannot regulate everything. The banks will find ways to serve the perceived interests of their shareholders; and a teller will find ways to punish the people at the wicket if they are in a bad mood. We all engage in petty tyrannies at some point in our day or our life.
The difference here is that groups which have been recognized historically as being particularly vulnerable to that kind of petty tyranny have some statutory protection and some groups do not.
Perhaps because I am a lawyer I have lost my sense of reality. However, I think there is a symbolic importance to recognizing these rights in law that go beyond just the effect on individual tellers at individual banks.
If you talk to poor people, they feel that their rights are being ignored or trammelled by the private sector and by the state. They feel powerless and aggrieved.
It is the duty of the legislature to represent all its constituents not just the powerful ones, or even the ones who vote, especially in this type of legislation, the entire purpose of which, as set out in clause 2, is designed to ensure equality of opportunity and non-discrimination.
Senator Doyle: If I remember correctly, they were mostly single mothers who turned on the banks and then went public. They appeared on all the talk shows and all the newspapers covered their stories, and the banks changed their policies.
Ms Jackman: Certainly, sole support mothers, welfare mothers, are one sub-group who economically and socially face particular problems right now. You could try to argue that a sole support mother is being discriminated against based on her family status, which is an existing ground. The advantage of recognizing social condition explicitly is that you can invoke the proposed section 3.1 and say, "I do not know if it is because I am a single mother, or if it is because I am on welfare, or if it is because I am poor, but I know what is being done to me, and it is being done systemically to others like me, and it should stop."
Senator Kinsella: Our discussion on poverty is very important. It is not now included in the list of prohibited grounds of discrimination. We understand your submission that it ought to be because the courts probably read the act as though it is included at any rate. The legislative branch ought to be the ones enacting the laws rather than the judicial branch.
However, in the list of prohibited grounds of discrimination in the bill, there is a ground which does not apply to all sections of the act. On that point, what is your opinion, and what is your advice as to at least having all of the prohibited grounds of discrimination that are in the list apply to all of the areas of discrimination covered by the bill? To be more specific, what about the non-application of one of the prohibited grounds to section 16?
Ms Jackman: My preference would be for the proposed section 16.1 to simply refer to section 3. It seems a bit redundant to amend both provisions. The problem has been experienced by gays and lesbians, where, through either legislative oversight or political gesture, they were included in one provision and not the others. I would certainly favour a reference back to section 3.
I should have said this explicitly, but were the committee to modify the proposed section 3.1 to include "social condition", I would hope and expect that the proposed section 16.1 would also be amended to include it because the two sections work in tandem.
Senator Kinsella: That is an important suggestion. We have it also from the Human Rights Commission that they think that all of the current prohibited grounds -- proscribed grounds, as I call them -- listed in section 3 apply to all sections of the act.
My second technical question is this. In the Human Rights Act that I have the most familiarity with, which is the Human Rights Act of New Brunswick, the Human Rights Commission determines whether a bona fide limitation exists.
In the bill before us, in the matter of the duty to accommodate persons with disabilities, the respondent to a complaint has available as a defence that a bona fide justification exists that he or she cannot accommodate.
What is your opinion as to the merit of having available under the Canadian Human Rights Act the ability that exists under the New Brunswick Human Rights Act where the Human Rights Commission is able to receive an application from a federal organization covered by the act, such as CN, requesting, ahead of time, a determination by the commission that a bona fide justification exists for them not being able to accommodate a person with a disability under the specified conditions? I raise that for a practical reason. Let us say CN knows they have a problem in that they cannot accommodate, and they feel they have good reasons. If they go to the commission and the commission makes the determination, consider the anguish and the suffering that is saved the complainant and the respondent, not to mention the amount of money that would be saved. It works tremendously well in New Brunswick. What do you think?
Ms Jackman: I referred to the definition of undue hardship earlier. If anyone should not have the power, it should be cabinet. That is what the bill provides. The cabinet could define undue hardship. I have suggested that this should be absolutely struck from the bill.
In terms of advance recognition from the commission, this is not an area in which I work. I am not sure of the existing practice, but my assumption is that there is a back and forth between the commission, the complainant and the respondent to try to settle these disputes as much as possible so they do not end up before the tribunal. Any powers that could be granted to the commission to facilitate that work or legitimate that work would be beneficial.
Senator Kinsella: Senator Beaudoin's former colleague, the late Justice Tarnopolsky, wrote an interesting article about anti-discrimination law and human rights law entitled, "The Iron Fist in the Velvet Glove" which was published in The Canadian Bar Review. One of the theses advanced in that article is that human rights legislation is special legislation, but it is not meant to be punitive legislation.
With respect to the proposed amendments, including the amendments to the tribunal section, what is your advice to this committee as to whether the iron fist in the velvet glove thesis is being maintained?
Ms Jackman: It is in the sense that the Human Rights Code and the jurisprudence attached to it has always focused on remedial aspects. That is what is so good about this jurisprudence. The idea is not to punish but to remedy.
The bill recognizes that, in some situations deterrence, is called for because of a consistent course of practice. The example of the Internet hate speech is a good one. The individual and groups involved in this have shown a flagrant disregard for the law and the rights of others. There is a sense that, without some ability to deter through punishment, the law is not being effective. Certainly, the amounts being contemplated are quite modest in a common law sense. I do not see them as being anomalous or problematic at all.
Senator Beaudoin: Is it going too far to say that we cannot deny a right on account of cost? In other words, we cannot say it is too expensive to be implemented. I am inclined to conclude that we should not conclude that it is too costly to implement a certain right, so it will not be included. However, are there some limits to that? For example, what state in the world is in a position to say, "You have a right to work, and if you do not find a job, there is a remedy." Of course, if a person cannot find a job in a civilized society, there is unemployment insurance and schemes of that sort. However, where is the exact line drawn? Is there a principle that you can never deny a right just because it is costly or it involves too much money?
Ms Jackman: The way this has been dealt with under the charter is as an issue not of substantive right or of justification, but of remedy. It is for the tribunal to determine the required accommodation.
It may be that the ideal remedy would be extremely costly but, in the end, the accommodation ordered would be less costly. That is anticipated under section 24 of the charter as well.
Senator Gigantès: I do not quite understand that response.
Ms Jackman: As Senator Beaudoin pointed out, you do not want to say that if your right is too expensive, it will not exist.
Senator Beaudoin: We do not want to say that.
Ms Jackman: Not at all. However, we may sometimes say that a right is so expensive that we cannot provide the ideal remedy; but we will provide an attenuated remedy.
In the language of the Human Rights Act, we are saying it would impose an undue hardship to accommodate a person in the ideal way, but they may be accommodated in another way.
For example, in the Elderidge case, the applicants requested that the Supreme Court order the B.C. government to fund sign language interpretation services, the same way you would expect service if you went to the doctor's office complaining of a cold. The interpreter would attend with the person who requires the service, and would be reimbursed as is a physician.
The court decided to send the matter back to the Government of British Columbia to decide what could be more effective.
Senator Beaudoin: They found it was a right.
Ms Jackman: Yes, however the cost became a factor in the remedy. It became a factor at the level of the remedy that was ordered, not at the level of whether or not discrimination existed.
Senator Beaudoin: How could the judicial branch say to the executive or legislative branch, "It is a right; find the money somewhere"? If there is no money, that is the end of the matter.
Ms Jackman: What the courts said, is that the right of deaf people is violated if they cannot communicate with their physicians or the hospitals. It must be ensured that deaf people can communicate.
Senator Beaudoin: What about, for example, the right to work?
Senator Kinsella: As a supplementary comment, from a human rights analysis, is it not true that there is a principle that espouses that the enjoyment of economic, social and cultural rights are dependent upon the ability of the state to pay. The principle is well recognized. Is that not a valid principle?
Ms Jackman: That is absolutely right, yes. It is a right that you enjoy progressively, in accordance with the means of your society. All rights are interpreted in that context.
Our understanding of the right to vote would include, for example, being enumerated at our own doors rather than going somewhere to be enumerated. That is specific to our political context.
In response to Senator Cogger, in particular, within our interpretative context he is right, cost is always a consideration. I am objecting to identifying cost as a red flag. If you can argue costs, you are off the hook.
We already have a well-defined definition of undue hardship which balances cost and other considerations. What is the need to include those qualifiers? I would scrap the last part of that sentence and rely on the jurisprudential notion of undue hardship. It exists, it has been interpreted. We know what it means. I anticipate this emphasis will have a harmful effect, because the courts and tribunals are already so concerned about telling the state and the private sector to spend money to remedy discrimination.
Senator Kinsella: For the record, recently Senator Beaudoin and I had an opportunity to participate in a very interesting meeting of Parliamentarians of the Americas in Quebec City. The participants at that conference adopted a resolution which the Senate of Canada advanced, to the effect that we would undertake to attempt, in our respective parliaments, to examine our respective countries' reports on human rights submitted under the various international instruments.
In your presentation, you alluded to reports which are made and submitted by Canada under the covenants. You also drew to our attention to some of the recommendations which the human rights committee examining our country's report have made.
Hopefully, Madam Chairman, we will take up the challenge of examining the reports which Canada has been submitting dealing with human rights, because we have just heard testimony from an expert witness relating to a valuable recommendation which was made by the United Nations to Canada to improve our human rights record.
Senator Gigantès: In response to my earlier question, your answer indicated to me that workfare schemes do not work, and that for those which do work, there are huge queues. If there were enough workfare schemes that are worthwhile and did work, would you have an objection to them?
Ms Jackman: If we are to call it "workfare," I would object, because "workfare" has a whole set of connotations.
Senator Gigantès: Let us change the name.
Ms Jackman: Employment opportunity is really ugly, too, and that has become the euphemism for "workfare."
Programs that are designed to help people who are on welfare reintegrate to the work force, are a positive thing. In our economy, the only way to ensure economic security for one's self and one's family is through paid employment in the work force. This is where my gender starts to factor in. When I look at programs like workfare, one of the questions I would be asking would be: Does it come with daycare?
As a sole support mother who wants to go back in the work force, my rates of pay are low, the stigma is horrible. I do not want my children to grow up in that culture. However, I am either offered or forced to participate in a program with no provision made for caring for my pre-school children.
The way I look at it, increasingly, in most jurisdictions in Canada, workfare is popular because it is punitive and not remedial.
Senator Gigantès: I fully agree with you.
The Chairman: Thank you, very much, Ms Jackman. You have given us some very valuable insights. Thank you for coming today.
The committee adjourned.