Proceedings of the Standing Senate Committee on
Issue 8 - Evidence
OTTAWA, Thursday, November 27, 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 10:54 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
The Chairman: Honourable senators, our first witnesses today are from the Quebec Bar Association.
Ms Carole Brosseau, Solicitor, Research and Legislation Services, Quebec Bar Association: Madam Chairman, first of all, I would like to thank the Senate committee for inviting us here to make representations on Bill S-5 on behalf of the Quebec Bar Association. I am a solicitor with the Bar's Research and Legislation Services. I am happy to have with me today Ms Madeleine Caron and I will give you her professional background in a few moments.
I would like to begin by describing for you the role of the Quebec Bar as set out in the enabling legislation. We have a responsibility to protect the public and when we make representations, this responsibility is always uppermost in our minds. We will not represent the interests of any one group; rather, when bills are tabled, we will work to ensure that the proposed legislation is in the best interests of the public.
The Quebec Bar takes the following approach: we consult with experts in specific areas who sit on advisory committees. With the help of these committees, we establish our official positions which are then approved by the bâtonnier or the office of the bâtonnier, or by the bar's decision-making bodies, namely the executive committee and the general council. This gives you an idea of how we work.
As part of our study of Bill S-5, we consulted two working committees: one specifically established to deal with matters pertaining to administrative law and human rights, and the standing committee on criminal law committee which has given testimony several times before the Senate committee. Our brief also lists the names of those who were consulted in the drafting of this document. I hope this gives you an idea of how our organization is structured and how we went about preparing this submission.
Ms Caron is an expert in the field of human rights. She has worked as a lawyer for a number of years and since 1979, has been with Quebec's Commission des droits de la personne where she served as the head of litigation services from 1986 to 1997. I will let Ms Caron talk to you about human rights issues, the Canadian Human Rights Tribunal and the amendments to the Canadian Human Rights Act.
Given the time frame that we had to work with, we used the copy of Bill C-98 tabled last April for the purposes of our study. I checked and the provisions of Bill S-5 and Bill C-98 are consistent with one another. For the purposes of our study and to facilitate matters, we used the Bill C-98 version. All of our references are to provisions in Bill C-98.
I will start by examining the provisions in the bill which amend the Evidence Act and the Criminal Code. As far as the Evidence Act is concerned, the amendments reflect the desire on the part of the legislator to accommodate disabled persons so that they can participate more fully in the judicial process.
We have two comments to make regarding amendments to the Criminal Code. The first concerns the proposed new section 153.1 in clause 2 of Bill C-98. Pursuant to this provision, the sexual exploitation of a person with a mental or physical disability would constitute an offence. We understand the principle underlying this clause. However, sections 151 and 152 of the Criminal Code provide for a term of imprisonment of up to ten years to be imposed on a person found guilty of taking sexual advantage of a disabled adult, whereas the maximum penalty under the new section 153.1 for a comparable offence is five years.
While the two situations are comparable, the punishment imposed is different. Section 153 of the Criminal Code already covers incidents involving minors. Therefore, we are puzzled by the creation of a new offence.
My second comment pertains to clause 3 of the bill which amends section 627 of the Criminal Code to permit a person with a physical disability who is otherwise qualified to serve as a juror to have technical, interpretive or other support services. We have a question that we would like to put to you regarding this provision.
We do have some reservations in respect of this clause. Remember that we are talking about seating a jury. Juries deal with serious offences. Consequently, in the case of a juror with a hearing disability who requires technical support, an interpreter might eventually be brought in as a kind of thirteenth juror. Our question is as follows: As the thirteenth juror, would this individual participate in the jury's deliberations?
Steps would have to be taken to ensure that the technical support provided by an individual to a hearing-impaired juror would not make this individual a thirteenth juror.
It is not that we have a problem with this provision, but rather that we question how it will be implemented. This concludes our comments about the proposed amendments to the Criminal Code.
I will now turn the floor over to Ms Caron. She will be discussing the amendments to the Canadian Human Rights Act.
Ms Madeleine Caron, Solicitor, Member, Subcommittee on Bill S-5, Quebec Bar Association: The first provision that we would like to comment on is clause 8. We fully concur with the aim of this provision which is to ensure that the needs of persons with disabilities are accommodated. We feel that the French version of the bill is perhaps stronger and more proactive than the English one. The French version refers to "prise de mesures visant à la satisfaction des besoins". The English version should be harmonized with the French one to convey this proactive notion of protecting all individuals and ensuring equal opportunity for all.
Subsections 2 and 8 of this clause are very interesting. Clause 9 amends section 15 of the act.
Senator Cogger: We are not following you. You are not referring to the same version of the bill as we are.
Ms Caron: Would the reference be to clause 8 of the bill? Is there a difference between Bill C-98 and Bill S-5?
Senator Cogger: Do you have a copy of Bill S-5?
Ms Brosseau: Clause 8 is now clause 9.
Ms Caron: You are correct, it is clause 9 of Bill S-5 which amends section 2 of the Canadian Human Rights Act.
We agree with this provision. The French version of clause 9 is worded more strongly than the English one. It refers specifically to "prise de mesures visant à la satisfaction des besoins".
This reflects the taking of a proactive approach. We totally agree with this wording. In fact, the wording of the English text could be more explicit.
Clause 10 amends section 15 of the act which provides for non- discriminatory practices. Subsection (2) contains a definition of undue hardship.
For any practice mentioned in paragraph 1(a)[...], it must be established that accommodation of the needs of an individual or class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and costs.
Subsection (2) restricts the criteria of undue hardship to costs, health and safety. Case law, particularly Supreme Court case law, has already carefully worked out the concept of undue hardship in respect accommodation and discrimination. We are concerned that the definitions given in this subsection will limit the concept of undue hard ship. Perhaps we could confine ourselves to talking about this concept of undue hardship and leave it to the courts to define the parameters.
Ms Brosseau: We are pleased with the clause in the bill which provides for the Governor in Council to make regulations prescribing standards for assessing undue hardship and with the fact that the regulations arising from the Canadian Human Rights Act will be published in advance. The Quebec Bar made representations to the Standing Committee on Justice in conjunction with its study of Bill C-25, the federal Regulations Act and recommended to the government that it adopt Quebec's approach which requires the publication of all draft regulations.
The field of human rights is one of particular interest to the public. Publication of the draft regulations is a positive step and we want it to underscore this fact. This is a very interesting and important measure.
Ms Caron: Our position on clause 10(9) is similar. It appears to set out specific employment requirements for the members of the Canadian forces. This is unnecessary. In any event, case law has recognized that certain special skills are required to secure employment in the Canadian forces. It seems pointless to include a special definition here in the bill. Case law has not resulted in any instances of abuse in this area.
Clause 14 concerns retaliation. The Quebec Bar agrees that retaliation against an individual who files a complaint of discrimination could be deemed a discriminatory practice. However, we suggest that some provision should be made for emergency measures to be taken immediately. For example, when a person files a complaint of discrimination and that person's employer takes retaliatory action, that complainant should not have to wait until an investigation is concluded and have a court order a stop to this retaliatory action. We recommend that the provision set out some emergency measures that could be invoked in such instances.
Ms Brosseau: When consulting our brief, you should always adjust the numbering by one. Instead of clause 8, you should read clause 9. That is the only difference between S-5 and C-98.
Clause 19 amends section 25 of the Act and defines "employment" as including a contractual relationship with an individual for the provision of services. We concur with this provision which protects contractual employees or employees hired through placement services from discrimination.
Pursuant to clause 23, the commission -- the commission submits a request to the tribunal and we will talk more about this later -- may file complaints to be heard jointly by the tribunal. The bar suggests, and we will come back to this a little later when we discuss the need to put more distance between the tribunal and the commission, that emphasis be placed on the fact that it is the tribunal that may order the filing of joint complaints. We propose the following wording: the tribunal may, on application from the commission, request that complaints be dealt with jointly. As the provision is now worded, we are left with the impression that as soon as the commission requests that complaints be dealt with jointly, the tribunal has no choice but to go along with this request. There must be more distance between the commission and the tribunal. The former is an administrative body, while the latter has adjudication functions.
This brings us to clause 27 of the bill on page 12 and to the section on the Canadian Human Rights Tribunal. We take note of the legislator's intention of establishing a permanent human rights tribunal. The bar supports this initiative. However, we wish to point out that the tribunal's independence vis-à-vis the commission, the public administration and in particular the department could be expressed in stronger terms.
In our brief, we refer to the criteria for judicial independence. I have no wish to quote our submission in its entirety, but on page 9, we include a citation of Madam Justice McLlaughlin who stated the following:
The critical requirement for the maintenance of judicial independence is that the relations between the judiciary and other branches of government not impinge on the essential "authority or function" of the court.
Consequently, a court must not only operate in an impartial manner, but it also must be seen to do so by a reasonable and intelligent person. The Quebec Bar notes that the federal bill is not identical to existing Quebec legislation. In Quebec, a human rights tribunal is a judicial body in that hearings are presided over by full-time judges. We are not asking the federal tribunal to take a similar approach. However, as we mentioned earlier, the legislation must be very clear as to the separate status of the tribunal and the commission. The commission files requests and the tribunal hands down decisions. The law is clear on this point. Otherwise, in cases where an individual might think that the tribunal has bowed to the pressures of the commission, legal disputes could arise and the legislation would be of no help in resolving these disputes.
Clause 48.3 of Bill S-5 gives the Minister of Justice extensive powers in respect of remedial or disciplinary measures that can be imposed on a member of the tribunal. This is quite obvious in clause 48.3. The Minister of Justice may take disciplinary action against a member of the human rights tribunal. We find this surprising and somewhat incongruous. This provision should be amended.
Section 48.5 reads as follows:
The full-time members of the tribunal shall reside in the National Capital Region...
We believe that this provision will make it difficult to recruit high calibre individuals because members will be chosen from across the country. We fail to understand this requirement, given present-day means of communication, and we question the importance of a permanent residence in or on the edge of the National Capital Region. We feel that tribunal members should not all necessarily have to reside in the National Capital Region, especially since the cases being brought to their attention originate from all over Canada.
Ms Brosseau: One of the principles behind or reasons for this provision was to ensure full regional representation on the tribunal. Given the mobility of individuals and families, we also doubt whether it will be possible to meet the objective of ensuring that full regional representation, bearing in mind that we want the tribunal members to be as competent as possible. The competence of tribunal members is another important consideration in terms of ensuring the sound operation of the tribunal. We have some serious reservations, therefore, about this residency requirement.
Ms Caron: A recent Supreme Court ruling dealt with this issue of requiring an individual to have a permanent residence in a given location in order to carry out his or her duties. A close correlation must exist between the requirements of the position and the residency requirements. Senators can refer to the relevant ruling, that is Godbout v. the City of Longueuil.
Ms Brosseau: In clause 48.8 of Bill S-5, these provisions have not been amended. On page 17 of the bill, the chairperson may, and I quote:
[...] engage persons having technical or specialknowledge to assist or advise members [...]
While the Quebec Bar does not object to the presence of experts, problems may, however, arise with respect to openness when experts raise new facts. It should be noted here that the experts would be working for the tribunal, not for the parties in the case. If the expert raises new facts, a mechanism should be in place for disclosing these expert opinions to allow the parties to take them into consideration, analyze them and cross-examine the tribunal's experts.
At present, the bill does not provide a mechanism for disclosing new facts. In our opinion, such a mechanism should be an integral part of Bill S-5. We are not opposed to the principle at hand, but when new facts are disclosed, there should be a mechanism for disclosure in place.
Senator Beaudoin: Are you referring to clause 48?
Ms Brosseau: Clause 48.8(2). This would be an important addition.
Ms Caron: Clause 49.1 is one example of a lack of strict demarcation between the role of the commission and that of the tribunal. This provision reads as follows:
At any stage in the filing of a complaint, the Commissionmay requests the Chairperson of the Tribunal to institute an inquiry [...]
Firstly, this gives us the impression that the commission can choose judges; that is not the purpose of this provision. The tribunal operates within a given jurisdiction; the commission files a complaint and the tribunal disposes of it in accordance with its jurisdiction. However, we do not think that there should be any kind of administrative complicity between the commission and the tribunal.
The same comments apply to sub-section 2 in that we do not feel that the chairperson should be assigning a member of the tribunal on receipt of a request from the commission.
With respect to subsection 3 and the appointment of the tribunal chairperson, we contend that the chairperson should at all times be someone who has a legal background for the following reasons: adjudicating these cases requires a certain knowledge of case law and the rules of evidence. Human rights tribunals are not required to strictly observe the normal rules of evidence. However, in order to ensure more flexibility as far as procedure and evidence is concerned, those overseeing the proceedings must have knowledge of the rules so that they are in a better position to assess them. However, the person appointed to chair the tribunal pursuant to the bill need only have a legal background under certain circumstances. We believe that this should always be the case for reasons related to evidence and knowledge of law and case law.
Ms Brosseau: I refer you to section 50.1 of Bill S-5 on page 19 which reads as follows:
After due notice to the Commission, the complainant, the person against whom the complaint was made and, at the discretion of the member or panel conducting the inquiry, any other interested party, the member or panel shall inquire into the complaint and shall give all parties to whom notice has been given [...]
I emphasize these words:
[...] full and ample opportunity, in person or through counsel, to appear at the inquiry, present evidence and make representations.
The concept of "full and ample opportunity" is always one that relates to criminal law. This requirement is much too excessive in the case of human rights and is not in keeping with the spirit of human rights legislation.
We believe that the requirement is consistent with the criteria set out in the Supreme Court decision in Stinchcombe. Considering the purpose of the bill, this is an excessive requirement.
Senator Gigantès: Could you explain to us further why you object to this provision? What risk do you see?
Ms Brosseau: The words "full and ample" refer to a concept in criminal law. In the context of human rights, there is no need to invoke criminal law because the appropriate measures to take are corrective, not repressive ones.
With respect to evidence, the court ruled in Stinchcombe that the Crown attorney is required to disclose to the defence all of the evidence that he has. If we put ourselves in the commission's place and, having gathered evidence for and on behalf of the tribunal, find ourselves forced to disclose any evidence in our possession to the defendant in the case, this would be unpleasant indeed. The standard imposed, that of "full and ample" evidence, is excessive. We would be satisfied if these two words were deleted.
Senator Gigantès: Is it always a bad thing for the commission to be faced with an unpleasant situation?
Ms Caron: The question is not whether the commission may or may not find itself in an unpleasant situation. The issue is that in the area of human rights, we should not be dealing with repressive or criminal law, but rather with preventive law and corrective or remedial action. However, the reference is to a full and ample defence puts us squarely in the field of criminal law. In civil law, we refer more to the opportunity to present any evidence and to use every means available. It is the words "full and ample" which point to criminal law and which should be avoided. Of course, the parties must have every opportunity to present all of the evidence.
Ms Brosseau: To present the evidence fully, but not be held to the same standard of full and ample evidence as the defence would be held.
Senator Gigantès: I would like a concrete example.
Senator Losier-Cool: Do the English words "full and ample" have the same meaning as the words in the French version?
Senator Cogger: I do not think that we should be applying the terms "full and ample" to the degree of evidence that must be presented. The reference here is to the full and ample opportunity to appear. This has nothing to do with the degree of evidence. I fail to see the connection that you are making. These are terms used in criminal law.
Senator Losier-Cool: It is the opportunity that is full and ample.
Senator Cogger: I have no problem with the legislator's intent.
Ms Caron: It is a question of wording. It is quite permissible to use the expression "full and ample opportunity to appear". That is how it is with legalese.
Ms Brosseau: The wording could pose a problem.
Senator Cogger: It refers to full and ample opportunity to appear, present evidence and make representations.
Senator Lewis: It does not say anything about the evidence.
Senator Cogger: That is what I am saying. "Full and ample opportunity" does not refer to the degree of evidence.
Ms Brosseau: When we make representations, we do so with the goal of concluding that legislation is either good or bad. We are cautioning you about the terminology. In our view, it is too strong. We have a problem with the use of the words "full and ample" in reference to the evidence presented.
The Chairman: May I ask committee members for their guidance on whether you want to carry on at this point or hear the rest of the presentation first?
Senator Beaudoin: I suggest we clear up this point because there is a mistake somewhere here.
In the ruling which you cited, it is the defence that is "full and ample", not the opportunity to appear. We have no problem with this wording. The accused has a "full and ample" defence. It is a question of the wording used and I have no problem with this.
Ms Brosseau: Our concern is that the terminology used is not quite right and that the provision could be interpreted incorrectly.
Senator Beaudoin: Perhaps the word "full" would have been sufficient.
Ms Brosseau: Exactly.
Senator Beaudoin: I am not prepared to reject the bill because of that.
Ms Brosseau: No, but you could recommend changes in your comments or in your report. The Quebec Bar has cautioned you about the provision. Our only interest is in seeing that the legislation can be applied in keeping with the spirit of existing legislation.
Senator Beaudoin: Madam Chair, we have only 15 minutes left. I am sure that we all have questions. I have questions on the independence of the tribunal and I would like very much to discuss that.
The Chairman: I am informed that no one else will be using this room after us, so we can keep this panel for a little longer. Our next witnesses will be waiting.
Senator Doyle: I have a follow-up question on the issue of permanent judges. If you have permanent judges, the subtlety of the language or the legalese of the language will be entirely set by the presiding officer where it might not be by a social worker in the same job. I am wondering if the two items could not be addressed, perhaps, when we bring it back to judges and the merits of having them preside.
I am impressed with the situation in Quebec where judges do preside. That speaks for the recognition of the difference between corrective and criminal.
You must know, Madam Chair, whether this is the time to try and nail that down, or whether it should wait until later when we are talking about the language per se in the item we have just finished.
The Chairman: I suggest you bring that up later when you can attempt to tie the two approaches together.
Senator Losier-Cool: My question concern the wording "full and ample opportunity."
Does this have the same connotation or carry the same risk? Does this mean the same thing to you?
Ms Brosseau: Yes.
Senator Losier-Cool: It is immediately apparent that the reference to "full and ample opportunity" relates to the opportunity to appear.
Senator Beaudoin: In criminal law, a "full and ample" defence is a recognized concept.
Senator Losier-Cool: We are not talking about a defence.
Senator Cogger: The French version refers to the "possibilité pleine et entière". It is the same as in the English version.
Ms Caron: We would now like to move on section 51 amended to read as follows.
In appearing at a hearing, presenting evidence and making representations, the Commission shall adopt such position as, in its opinion, is in the public interest having regard to the nature of the complaint.
This procedure before the Human Rights Tribunal, as is the case before other Human Rights Tribunals in Canada and in Quebec, is inquisitorial in nature. The tribunal itself can gather evidence. We note that this clause gives the commission the discretion to defend the public interest. The provision states that "the Commission shall adopt such position as, in its opinion, is in the public interest". We believe that the commission should not have this kind of discretion and that the bill should stipulate that it is under the obligation to represent the interest of the victim, while bearing in mind the public interest. The measure of discretion enjoyed by the commission should be eliminated.
Section 53(2) hints at some criminal aspects. On several occasions, the Supreme Court has indicated that human rights legislation is preventive and remedial legislation, not punitive or repressive. The French version of section 53(2) provides that "le membre instructeur peut ordonner à la personne trouvée coupable d'un acte discriminatoire...". Who would like the expression "trouvée coupable" to be stricken from the bill. This expression could be replaced by "tenu responsable d'un acte discriminatoire". The formulation should be changed to avoid a reference to a criminal law concept when dealing with human rights legislation.
The French version of this section refers to the possibility of the member or panel conducting the inquiry to make an order against the person found to be engaging in a discriminatory practice or to take measures to redress the practice, "selon les circonstances". We would prefer it if the expression "en fonction de la preuve recueillie" was used instead of "selon les circonstances", This would be more objective than a reference to "circonstances". Thus, the provision could read "le membre peut ordonner, en fonction de la preuve obtenue"...
Senator Gigantès: There are serious problems with the translation throughout this clause. I suspect that the person who has translated from English to French may well be from France because he has this concept of "le membre instructeur", which does not appear in the English version at all. In English, it states the "member or panel".
That is what the text says in French, but that is not what it says in English. In English, we have "the member or panel".
Ms Caron: The legislation makes provision for either a one-member or a three-member panel, depending on the type of case being heard.
Senator Gigantès: However, in French, the word "instructeur" refers to the trial judge.
The Chairman: I point out to the committee that bills are not translated from one language to the other; they are crafted separately in both languages. This may well be where "le membre instructeur" has arisen.
Senator Cogger: I agree with Senator Gigantès. In this case, it appears that the word "panel" does not appear in French. Regardless of whether or not "membre instructeur" is an appropriate translation of "member", the word "panel" is not reflected.
Senator Gigantès: Do these drafters not speak to one another; or are they not bilingual?
The Chairman: This is a question we may well ask the minister. We will make note of this.
Keeping an eye on our time, we will move on.
Ms Caron: We would also like to comment on section 54 on page 22 which pertains to complaints relating to hate messages. The legislation makes provision for special sanctions in the case of hate messages. The bar wishes to point out that hate messages are prohibited under the Criminal Code. The Human Rights Act may make provision for remedial measures to deal with hate messages. We suggest that any reference to penalties be eliminated because a person would be punished twice for the same offence under the Criminal Code. Therefore, we suggest that section 54(1)(c) which makes provision for a monetary penalty of at least $10,000 and section 54(1.1) which also refers to a monetary penalty be deleted.
Senator Beaudoin: On which page?
Ms Caron: Section 54(1)(c) and section 54(1.1) on page 22. This concludes the representations of the Quebec Bar.
The Chairman: Thank you, members of the panel. You have been very comprehensive. You have given us a specific critique of this bill and I know there are many questions as a result.
Senator Beaudoin: Since there will be many questions, I shall restrict myself to one or two.
Therefore, I congratulate you. It is not everyday that we hear representations from the Quebec Bar, the Canadian Bar or the Ontario Bar. We are always interested in hearing the views of these associations.
One thing that stands out from your presentation is the issue of judicial independence. I have the impression that in Quebec, judicial independence is probably more highly respected. I agree with you that the chairperson of a human rights tribunal should also be a jurist. This is not a constitutional requirement, but I do think that it is a good thing. Could you describe briefly for us how it works in Quebec? Human rights tribunals are chaired by jurists. Non-jurists with extensive experience in the field of human rights may, of course, also serve on the tribunal. This is a better system, in my view. I wonder if perhaps we should not consider adopting it at the federal level. Briefly then, what is the situation in Quebec?
Ms Caron: The chairperson of Quebec's Human Rights Tribunal is a Quebec Court judge.
Senator Beaudoin: He is a permanent judge appointed for life.
Ms Caron: That is correct. In addition, two part-time judges who are also regular Quebec Superior Court judges serve on the tribunal. The panel that hears cases is also composed of a judge and two assessors who need not be jurists, although they do play a rather special role. They assist the judge in that they collect evidence and give advice to him. However, the judge is the one responsible for the final ruling. He, not the assessors, signs the decisions. Assessors can be either jurists and non-jurists. Briefly, that describes the situation in Quebec.
Senator Beaudoin: You mentioned that section 48.1 on page 12 should assert the principle of judicial independence. How do you propose it do that? Do you care to propose an amendment to section 48.1?
Ms Caron: On the question of judicial independence, the bar is not asking or has not gone so far as to ask that the Human Rights Tribunal be composed of permanent judges who have been appointed for life. We are talking about an administrative tribunal. The bar is not opposed to this setup. However, on a number of occasions, we have pointed out to the commission that the concept of independence should be clearer. I can go back to these provisions if you wish.
Senator Beaudoin: Could you give us an example?
Ms Caron: It should be clearly stated that the tribunal orders an inquiry to be held on receipt of a request from the commission or from the other party and that there is no administrative relationship, pursuant to the legislation, between the commission and the tribunal. The commission investigates to determine if there is sufficient evidence to bring the matter before the tribunal. It should be clearly stipulated in the legislation that the commission is acting as the plaintiff and the process should reflect the tribunal's independence vis-à-vis the commission. The commission requests an inquiry and adduces evidence. It does not ask the tribunal to assign a member to inquire into the complaint.
The commission presents its case which the tribunal examines, in accordance with its jurisdiction under the act. The other party may raise some objections as to the tribunal's competence in this matter.
Senator Beaudoin: In other words, when the tribunal acts at the request of the commission, the tribunal must be independent. Is that correct?
Ms Caron: That is correct.
Senator Beaudoin: It cannot receive orders from the commission, simply requests. Is that right?
Ms Caron: Exactly. That is the first point. The second point relates to the justice minister. The bill contains a lengthy provision whereby the justice minister can sanction a member of the tribunal for violating the code of ethics. We object to this provision as well.
Senator Beaudoin: Which clause are you referring to?
Ms Brosseau: We identified it.
Senator Losier-Cool: Section 48.3
Senator Beaudoin: Section 48.3 reads as follows:
The chairperson of the Tribunal may request the Minister of Justice to decide whether a member should be subject to remedial or disciplinary measures [...]
This is strongly worded, I would say.
Senator Gigantès: They are not judges, therefore it is not a panel of judges who are going to decide which remedial measures to take. Who is going to decide, if not the Minister of Justice? This is something we should know.
Senator Beaudoin: I raise this point because this is the first time I have seen anything like this in a bill, namely a tribunal asking the Minister of Justice to take remedial or disciplinary measures.
Senator Gigantès: We are talking about an administrative tribunal, are we not?
Senator Beaudoin: Yes.
Senator Gigantès: To whom should the tribunal be directing this request?
Ms Brosseau: It is an administrative tribunal, but it also have some judicial functions. We have mentioned them in the course of our presentation and see no need to repeat them at this time. However, this tribunal does exercise some judicial powers and we do have certain reservations about this. In response to what you were saying, Senator Beaudoin, when we cited the Valente ruling and referred to the whole concept of independence and summarized Madam Justice McLlaughlin's thinking on the subject, we came to the conclusion that some distance must be maintained. The tribunal must be independent of the parties pleading their case before it. It is a matter of independence and impartiality and it brings into focus the very credibility of our judicial system. This is an important consideration.
The Chairman: If I may interject here for the benefit of the panel, we were told yesterday that there are similar provisions in the legislation concerning several other tribunals, so this is not something that is new and different.
Ms Caron: I will answer that. Some criticism has indeed been levelled against human rights tribunals in all provinces. The system in Quebec is different, as we explained. I think that this legislation aims to address some of the criticism that has been directed at human rights tribunals which were too closely tied to government. Some progress has been made, but still more remains to be made to ensure this separation between the administrative branch and the tribunal. Tribunal members are appointed by the Governor in Council. Provision could be made for a complaint procedure and there would need to be overwhelming evidence of misconduct in order for the Governor in Council to remove the member and for the reprimand process to be tied to the appointments process. That is one possible solution.
Senator Beaudoin: It would be an easy one.
Senator Gigantès: The Governor in Council is cabinet, and the Governor General endorses a Cabinet decision. For such matters, cabinet will certainly assign priority to the justice minister's viewpoint. If we do not adopt the same course as Quebec and appoint permanent judges subject to disciplinary sanctions by a judicial council, what other option do you think the justice minister has, given that the tribunal members are not regular judges? We must not hide behind words and claim that the order in council comes from the Minister of Justice.
Senator Cogger: The city of Ottawa is littered with people appointed to hold office during good behaviour pursuant to an order in council. The same body that appointed them has the power to remove them from office. We could refrain from making any mention whatsoever of the Minister of Justice and say instead that members are appointed, not by the Minister of Justice, but by order in council.
Senator Gigantès: I was saying that the Governor in Council is cabinet and in such instances, it is the Minister of Justice who will hear the case. He will say, "My dear colleagues, here is what I recommend." Cabinet's response will be: "Agreed, Mr. Minister", and the decision will be signed by the Governor in Council.
Ms Caron: With cabinet, there may be a debate, whereas if the Minister of Justice is the only one involved, a debate is avoided.
The Chairman: If I could, I should like to move us back from a discussion among ourselves to questions for the panel.
Senator Beaudoin: I am very satisfied with your answer. You say that there is a problem. As a lawyer and as a member of the bar, you say that the independence of this tribunal needs to be demonstrated more clearly once it has received a request from the commission. I agree with this point. I am not saying that all members should be legal experts, but if we want human rights tribunals to act at arm's length from the government, we must give them the autonomy to do so. I am satisfied with that response. However, my question is this: Do we need to amend the bill?
The Chairman: I believe that was really a comment rather than a question, senator.
Senator Beaudoin: That is right, it was a comment, following my question.
Senator Cogger: I want to thank you for your presentation and let you know that I fully agree with you when you suggest that we delete in section 15 the words "considering health, safety and costs", and that we leave it up to the courts to interpret the expression "undue hardship". I have to tell you that other witnesses have taken the same position.
Senator Gigantès: Which line are you referring to and on which page?
Ms Caron: Clause 10 of the bill on page 7.
Senator Cogger: Clause 10 amends section 15. The Quebec Bar is proposing to delete the words "considering health, safety and cost" at the very end of the first paragraph.
Senator Gigantès: Disabled groups like these words and employers do not, judging from the testimony that we have heard thus far.
Senator Cogger: You should not be so categorical. Ms Falardeau-Ramsay feels that the concept of "undue hardship" should remain. However, you are telling us that when a panel is set up to hear a complaint, it would be composed of three members, including the chairperson who would be a member of the Bar. What happens when a complaint is heard by a panel of one? Are you telling me that all commission members should be lawyers?
Ms Brosseau: No, that is not what we are saying. The chairperson of the tribunal must be a jurist.
Senator Cogger: That person will act alone and as chairperson. I would point out to you that pursuant to section 50.(2), "the member or panel may decide all questions of law or fact necessary to determine the matter".
Ms Caron: It is a matter of opinion. A member of the Bar is in a better position to recognize problems associated with the administration of evidence and to appreciate case law than someone without any legal training.
Senator Cogger: Is this not what the legislator was trying to say by giving the chairperson the power to retain the services of an expert?
Ms Brosseau: No, it is not the same thing.
Senator Cogger: That is your interpretation.
Ms Brosseau: There is some confusion about this expert.
Senator Cogger: Pursuant to section 48.8, the chairperson may retain the services of an expert. Is that not correct?
Ms Caron: The expert in question can be someone with special knowledge of construction, medicine or matters relevant to the case.
Senator Cogger: The provision states that the expert is on hand "to assist or advise members". What is there to stop the member of the tribunal who is not a lawyer from having by his side an expert who just happens to be a member of the Bar and who can help him decide points of law?
Ms Brosseau: Why engage the services of two persons when one person would be sufficient?
Senator Cogger: However, the alternative would be either for all members to be lawyers or for someone on the panel not to be a lawyer and not have access to the services of an expert, and nevertheless be required to rule on points of law.
Ms Caron: Some panels have one or three members. It is not necessary for all members to be lawyers. In the case of three-member panels, some members may not be legal experts. However, in the case of a one-member panel, that person should be a jurist. Non-jurists would be appointed only to two or three-member panels.
Senator Doyle: Perhaps you can help me, Madam Chairman. On those human rights commissions that do not require the chairman to be a lawyer, is it common practice for them to hire a lawyer to advise the chairman?
The Chairman: Apparently not.
Senator Doyle: Would they countenance hiring a lawyer to advise them?
The Chairman: If I may quote from yesterday's evidence before us by Ms Mactavish:
The practice of the tribunal is that cases are ordinarily chaired by lawyers. In the 19 years that we have been in existence, there has been only one case not chaired by a lawyer and that was the first case before the panel.
Senator Doyle: Why not make it an article of faith and say hire a lawyer when you are in need of a chairman?
Senator Gigantès: After the errors of the first case, they hired lawyers for all the other ones.
The Chairman: That is the practice now. It is not entrenched in the bill before us. I assume that they will continue the practice. This may well be something that we can talk about later in terms of an amendment.
Senator Gigantès: It is very enjoyable to have such knowledgeable witnesses here to present their views to us. I still have some problems with the issue of independence in the case of part-time judges. Professional judges are accountable to the judicial council and this, I would assume, gives them a certain measure of independence. We forget that judges are human beings, that they have some biases, that they make mistakes and that they sometimes condemn people who are not guilty. They have the independence to make these mistakes on their own without interference from anyone. I fail to see how this independence can be asserted if they are not professional judges.
Ms Brosseau: On the one hand, we have the issue of judicial independence, while on the other hand, we have the independence of the institution. We referred earlier to the fact that we want the tribunal to be independent of the commission. What about the independence of the judge? Judges and the tribunal chairperson are two factors to consider. We were not talking about aspects having to do with the judge as such, but about those tied to the institution. I sense a certain amount of confusion regarding the tribunal itself.
Senator Gigantès: However, the commission requests, not demands, that the tribunal appoints someone. When it receives a request, the tribunal is not required to oblige. A request is merely that, not an order. Therefore, both bodies are independent. The commission cannot order the tribunal to appoint any one person in particular.
Ms Caron: The fundamental intent of the bill is sound. I see nothing here in the way of ill intent or complicity when it comes to accepting or rejecting cases. It is a matter of changing the wording of the bill to ensure that the intent is not only sound, but clear.
Senator Gigantès: We are all a little paranoid here. On a committee such as this, one has to be.
Ms Caron: In some instances, the Canadian commission was criticized for its position, because the law could perhaps suggest that to ill-intentioned individuals.
The Chairman: Before we go on to another question, I would point out that that is the present wording in the act.
Senator Gigantès: When Ms Brosseau explained why the bar was opposed to the reference to "full and ample opportunity" in section 50.(1) on page 19, Senator Beaudoin remarked, and others agreed with him, that this reference was to opportunity, and not to the degree of evidence required. You did not give us a concrete example of the possible problem that this could cause.
Ms Brosseau: We did not, because we were simply raising a question about this provision and the standard which appeared excessive to us. When we examine a bill, we try to get an overall picture of it. In the context of human rights, we found this standard excessive in that it went much too far. This is a concept which relates to criminal law and is therefore not in keeping with the spirit of the legislation. This was one of many possible examples that we could have given. We mentioned it not because we want you to change the intent of this provision, but rather because we want you to change the wording used. We have researched this matter and we are here because we feel it is important to clarify this issue, so that the law will not be challenged at some future date. That is why we brought this point up. We do not have any concrete examples to give you. We merely wanted to raise a question about the scope of the provision itself.
Senator Gigantès: Madam Chairman, all of these issues have to do with the fact that the French and English versions of the bill are not consistent enough. This is a point that should be raised with the Minister or Deputy Minister of Justice.
Ms Brosseau: We did mention in our brief that generally speaking, the English and French versions are not totally consistent with each other. Official languages being what they are, provisions are always open to interpretation.
Senator Gigantès: Perhaps we should force the people who draft the bills in each of the two official languages to communicate occasionally with one another.
The Chairman: Senators, I would remind you that we do have another panel waiting to appear before us this morning.
Senator Lewis: I am afraid that I will have to ask my questions in English.
Ms Brosseau: That is fine.
Senator Lewis: I believe Bill S-5 is the same as Bill C-98.
Ms Brosseau: Yes. Basically, it had to be for it to have been sent directly to the Senate. The bill had already been tabled last April.
Senator Lewis: That was in the House of Commons, I believe. Did you have occasion then to make submissions on Bill C-98 as you are doing here today before us?
Ms Brosseau: No.
Senator Lewis: This is the first time you have done so?
Ms Brosseau: Yes.
Senator Lewis: And you did not make those submissions to the department?
Ms Brosseau: No, not at all.
The Chairman: I understand that the bill died on the Order Paper in the House of Commons before it could be referred to committee.
Senator Lewis: You did not have occasion to make any submissions, so is this the first occasion that you have had to do so?
Ms Brosseau: That is correct.
Senator Lewis: I understood you to say that you question the provision in clause 48.5 on page 16. I think you questioned the provision that the members of the tribunal "shall reside in the National Capital Region". The clause states "full-time members", whereas in the previous clause it provides that only the chairperson and vice-chairperson are to be full-time members of the tribunal. The provision contained in clause 48.5 would only apply to the chairperson and the vice-chairperson. That is the how I read it.
The Chairman: The other members can reside elsewhere. They may be either full-time or part-time members.
Senator Lewis: If they are full-time members, then they would have to reside in the National Capital Region. It seems as though you could have members of the panel residing in other parts of the country, which would cover that situation.
Ms Brosseau: We have some reservations about the representation issue. The goal is to ensure full regional representation on the tribunal. Clearly, this provision is borrowed from the Federal Court Act where the status of the tribunal is clear. There is no problem there. However, in this case, we are dealing with an administrative tribunal and regional representation is important. The tribunal attracts highly qualified people who must move their family to the National Capital Region. That is why we stress the fact that we do not see the need for requiring members to have a permanent residence in the National Capital Region. Like senators or members, they could have a secondary residence in the region, but not necessarily their permanent one which would mean having to move their entire family here. That is not necessary.
The Chairman: I should point out here that the wording does not say "reside permanently", it just says "shall reside". I should also point out that all parts of this country are represented in both the House of Commons and the Senate by people who live part time here in Ottawa.
Senator Lewis: I think we can sympathize with the remarks of the witness.
I brought that up because the intent seems to be that only the chairperson and vice-chairperson would be required to reside in the capital city, but other members, unless they are appointed full time, are not required to do so.
Senator Jessiman: I would like to expand on that point. Do the hearings of the Human Rights Commission not take place in Ottawa?
Ms Caron: No, hearings are held across Canada.
Ms Brosseau: They take place all over the country.
Senator Jessiman: They are itinerant, that is, they move around the country.
Ms Brosseau: Yes.
Senator Jessiman: I can see your point, then. I thought most of these hearings would held be in Ottawa, as are the hearings of the Supreme Court of Canada.
Ms Brosseau: This is more like the federal court which is an itinerant court.
Senator Jessiman: Which provision in the act allows them to move around?
The Chairman: It has been suggested that we clarify this point with the officials later. I trust the minister's staff is making notes of this.
Senator Beaudoin: I have one little point.
You have piqued my curiosity about clause 4 which amends section 627.
The judge may permit a juror with a physical disability [...] to have technical, personal, interpretative or other support services.
You stated that the person providing this support should not become a thirteenth juror. I would hope not. It seems to me that a person who requires the services of an interpreter is free to request assistance or not.
Ms Brosseau: Pursuant to Bill S-5, the person providing interpretive support is sworn in by the clerk of the court. I mentioned this in my brief and I would have to look at this again. The issue of the thirteenth juror comes into play in the case of a person with a hearing impairment or physical or mental disability. For example, someone suffering from paralysis or someone who is incapable of speech would need a translator to assist him.
In the case of a hearing-impaired person, a different language is used. Hopefully, that person would not interpret in his own way the jury deliberations. The problem does not arise when the jurors are in court, but rather when they are deliberating.
Senator Beaudoin: The interpreter would be seated with the jury?
Ms Brosseau: He would have no choice in the matter, since the juror would be deaf and incapable of speaking.
Senator Beaudoin: Is this a new provision?
Ms Brosseau: Yes. The legislation is being adapted. Allow me to refer back to the brief where I quoted the beginning of this particular clause. The clause refers to a person who:
[...] is otherwise qualified to serve as a juror [...]
Whether or not that person is qualified to serve as a juror is not determined in this provision of Bill S-5, but it does leave us with a question. We may be wrong, since we do not profess to have the absolute truth. However, has any consideration be given to way in which this provision was drafted?
Senator Beaudoin: If it is simply a matter of interpretation, then there is no problem. If you have a witness who speaks a language that no one understands...
Ms Brosseau: We are talking here about a person with a disability. We are not talking about interpretation or translation.
Senator Cogger: If someone is translating from Serbo-Croatian into English...
Ms Brosseau: That is not the issue.
Senator Cogger: You are not in a position to evaluate whether the interpreter is interpreting the debate and altering the meaning of it.
Ms Brosseau: In this case, we are dealing with a jury. The jury weighs the evidence in criminal law proceedings and the outcome could be quite dramatic for the accused party. The jury deals with serious offences.
Senator Cogger: Similarly, an interpreter translating from Serbo-Croatian into French could say something which may lead a person to be sentenced to death. We have to rely on the quality of the interpretation and accept that once the interpreter has been duly sworn in, he will carry out his duties in an appropriate manner.
Ms Brosseau: However, we are not dealing with the same thing.
Senator Beaudoin: Are we not talking about a language interpreter?
Ms Brosseau: The issue of sign language for the hearing impaired is totally different. The person providing technical support will be sworn in like the other jurors. Our concern is with the constitution of the jury. It is not the same thing as the court weighing the evidence in a given case. When the jury retires to deliberate, this person will have no other choice but to associate with this jury and to become in some respects the thirteenth juror. We need assurances that this person will not take part in the deliberations.
Senator Beaudoin: The thirteenth person is not the one who says: guilty or not guilty.
Ms Brosseau: No, but that person will, if acting as an interpreter, tell jury members: the other juror has just told me that she finds the person guilty or not guilty. This thirteenth person may participate in the deliberations in one way or another. We cannot control this. We are asking you today if you have thought at all about the consequences of this provision. Have you given this matter any thought? This person would be a kind of thirteenth juror. Do you see the difference between the interpreter and...
The Chairman: This may involve a difference of opinion, but I think we have delved into this area and we will have to think about it again.
With the permission of the committee, I wish to thank you very much for appearing before us. You have certainly given us a lot of food for thought.
Our next witness is Margot Young, a member of the National Steering Committee of the National Association of Women and the Law. She is an associate professor at the University of Victoria, Faculty of Law.
Welcome, Ms Young. Please proceed.
Ms Margot Young, Member, National Steering Committee; Associate Professor, University of Victoria, Faculty of Law: Thank you for allowing me to appear before you, Madam Chair.
The National Association of Women and the Law is a national non-profit organization dedicated to the advancement of women's equality through legislative and law reform, advocacy, education and research.
I have a few comments to make about the bill before you today and then I will be happy to entertain questions.
I will preface my comments with a reminder that the Canadian Human Rights Act is a central piece of the scheme of human rights protection in Canada. Enacted in 1977, the act confirms that Canadians are entitled to live their lives free from discrimination and to have access to full participation in Canadian life.
In doing this, the act reflects Canada's international commitments, both in terms of the UN Declaration on Human Rights and the two UN covenants on civil and political rights and on social, economic and cultural rights.
The Canadian Human Rights Act applies to both public and private spheres under the regulatory control of the federal government. Therefore, the act binds the federal government in its role as employer and service provider as well as binding any federally regulated business or industry.
The Supreme Court of Canada has repeatedly recognized the fundamental and special nature of human rights legislation. Indeed, the court has characterized human rights legislation as quasi-constitutional, bearing witness to the importance of this legislation.
As well, human rights legislation has played an important role in the development and interpretation of constitutional rights, particularly with reference to the development of equality rights under the Charter of Rights and Freedoms.
The character and scope of the Canadian Human Rights Act is essential to the human rights environment in Canada. I urge the committee to be both proactive and ambitious in its approach to the proposed legislation before it today.
I wish to make three types of comments today. First, I want to make a series of comments that note the positive additions in the legislation, those sections of the legislation which NAWL strongly supports.
I will begin by commending the federal government for inclusion within the bill of various provisions, the first being the provision for recognition of multiple grounds of discrimination. This is an important recognition in allowing the act to cover more fully and competently the kinds of discrimination that Canadians experience today and to give full expression to the types of harms that discrimination brings about.
As well, I commend the bill's express recognition of direct and indirect or adverse affect discrimination, the creation of a permanent full-time tribunal, the requirement that the commission report directly to Parliament rather than to the minster of justice, and the ability that the legislation gives the commission to initiate the complaint process on its own initiative rather than to wait for an individual complaint being brought forward. It is the position of NAWL that these changes add to the effectiveness, coherence and independence of the federal human rights protection scheme.
I add to these comments the caveat that in order to realize the positive potential of the creation of a full-time permanent tribunal, it is critical that the government take seriously the appointment of members of that tribunal, that the appointment process be a transparent one and that it result in the appointment of qualified experts in human rights protection and individuals who are representative of the groups within Canadian society who are most needy of the protections offered by the Canadian Human Rights Act. In this respect, I think that process would be well advised to include consultation with equality-seeking groups which represent disadvantaged individuals in Canadian society.
My second set of comments, also brief, has to do with the critical assessment of features which are not included within the proposed legislation which, from NAWL's perspective, unfortunately have been left out.
The first has to do with the absence in the proposed bill of any reference to poverty or social condition as a prohibited ground of discrimination. NAWL's position is that the omission of social condition as a prohibited ground of discrimination speaks distressingly of the government's complicity in the continued disadvantage and marginalization of the concerns of low-income Canadians and that this failing allows the Human Rights Act itself to remain discriminatory and, arguably, unconstitutional.
Also missing from this bill is an explicit extension of the section 16 provision for affirmative programs to groups disadvantaged on the basis of sexual orientation. Again, it is NAWL's position that this is a discriminatory omission which reinforces structures of societal disadvantage. It would be a simple matter to extend the coverage of section 16 by omitting within that section the list of prohibited grounds and simply referencing within that section the more complete list of prohibited grounds set out in section 3(1) of the act itself.
Finally, I would emphasize that the proposed legislation lacks reference to the longstanding commitment on the part of the government to a full scale review of the act. As understandings and conceptualizations of discrimination and of the problems and harms of inequality have developed and advanced, the act has, in some ways, become outdated or not as effective as one might wish it to be. What is needed is an overall review of this statute. It has been 20 years since it was originally created.
My third set of comments has to do with the identification of problems with some of the provisions which are contained within the proposed legislation.
In particular, I draw to your attention NAWL's concerns about the proposed new section 15(2) which establishes a statutory duty to accommodate with the accompanying defence of undue hardship. As you know, the proposed legislation stipulates that once a complainant establishes a case of discrimination, the respondent has the obligation to accommodate the aggrieved individual. However, available as a defence to a failure to accommodate is the excuse that accommodation would occasion undue hardship. More specifically, employers or service providers may only rely upon the available exceptions of a bona fide qualification or bona fide justification if they are able to establish that accommodating the needs of the individual affected would impose an undue hardship.
Put differently, under the proposed section 15(2), a respondent is relieved of the obligation to address the discrimination, if to do so would result in an undue hardship. The provision of the duty to accommodate accompanied by the defence of undue hardship must be understood as a limitation on equality.
Existing human rights jurisprudence or case law under human rights legislation already recognizes a defence of undue hardship to adverse affect or indirect discrimination, that is, to discrimination which results from the imposition of some rule or practice that is facially neutral. The Supreme Court of Canada has already articulated a list of factors to be considered in relation to undue hardship, which include such things as financial cost, disruption of a collective agreement, the morale of other employees, the interchangeability of workforce and facilities. As part of these considerations, the Supreme Court of Canada will look to the size and scope of the operation in question.
The proposed legislation before the committee identifies only three factors which are relevant to this new statutorily located defence of undue hardship. They are health, safety and cost.
NAWL's concern lies with the last of these three factors, that is, with the stipulation of cost as a consideration to be taken into account with respect to the establishment of an undue hardship defence. NAWL's concern is that the inclusion of the term "cost" in this list communicates or reinforces the legitimacy of tolerating discrimination if it is "too costly" or if it is "costly" to rectify such discrimination. The result of this may well be that rights are traded off against expense and that the anti-discrimination measures of the act are watered down.
NAWL's position is that this raises the dangerous possibility, although I think the very real one in this climate of fiscal conservatism, that human rights protection becomes a question of rights we can afford and rights we cannot afford. Such an approach to human rights protection is simply unacceptable.
Although the concepts of the duty to accommodate and its accompanying defence of undue hardship have been developed in the context of discrimination on the grounds of religion and disability, its inclusion in this matter with the proposed legislation could make these contexts relevant to discrimination on the basis of all the grounds prohibited within the statute. For instance, the defence of undue hardship would become applicable to any form of discrimination experienced by all women.
One can imagine particular examples where this would lead to situations which do not seem particularly conducive or supportive of our human rights and equality commitments. Consider, for instance, the example of women workers who, because of pregnancy, may require adjustments in work schedules or job responsibilities. Such adjustments may well be costly. Are we to say that these costs could possibly justify the denial of workplace equity to women, having already accepted the fundamental importance and value of an inclusive workplace, a workplace that allows for the full participation of individuals regardless of their particular pattern of reproductive involvement and that permits the full professional development of individuals notwithstanding the gender of those individuals? How, then, does it become coherent to assert that this larger and fundamental principle can be subverted by cost concerns?
Already we see that it is the pattern among respondents to human rights complaints to point to costs, whether they are minimal or otherwise, to disqualify clear claims of discrimination. Some examples of arguments put forward by respondents are represented, for instance, by the recent Supreme Court of Canada decision in Elderidge v. British Columbia in which the provincial government argued that the costs of providing sign language translation as one of its insured health care services justified the failure of the provincial government to provide those translation services.
Similarly, large companies, like banks, have also argued that they should be given relief from their human rights obligations in the name of budgetary constraints. We see in a recent Ontario decision, under the Ontario legislation, that the Ford Motor Company was successful in arguing that a cost of $7,000 constituted undue discrimination.
This clearly does not send a very strong message about the value we place on human rights protection. It is our position that the Human Rights Act should not send the message to courts and tribunals that such fiscal claims can trump our equality commitments.
Moreover, the Canadian Human Rights Act applies predominantly to the federal government and to large national companies for whom cost considerations are arguably not serious enough to warrant relief from their obligations to observe human rights protections.
The Supreme Court of Canada in its Charter jurisprudence has rightly refused to recognize cost as a legitimate factor in the justification of an infringement of an individual Charter right. Cost implications may and have played a role in determination of appropriate remedy, but they do not allow the justification of the infringement or violation of a right. It is disturbing that the proposed legislation would codify the legitimacy of these sorts of arguments which have been rejected elsewhere in other human rights settings.
Understanding equality or anti-discrimination measures as a duty to accommodate is in itself a less than fully desirable way of conceptualizing what appropriate anti-discrimination provisions ought to be. However, if we frame human rights protection in the terms of a duty to accommodate, it is extremely important that the defence of undue hardship be worded very narrowly.
It is also NAWL's position that the inclusion of cost as a factor justifying a finding of undue hardship will also foster a body of human rights law which will become increasingly unable to address the needs of the most marginalized in our society. Recognition and remedy of the more severe forms of discrimination will often entail the most costly measures. They will entail often quite extensive changes to the structures, the institutions and the programs found in our society.
The most disadvantaged will often need the most radical and extensive remedies. By allowing cost to determine who does or does not receive a finding of discrimination in a corresponding remedy, one simply ensures that human rights law offers only minimal and marginal and, ultimately, quite ineffective change.
If we take seriously our commitment to create a just and equitable society, it is important that we do not allow the price of equality to determine who has access to equal opportunities and to full participation.
NAWL would urge the committee to strike out the reference to cost in the section which deals with the factors to be considered in relation to the defence of undue hardship. If the committee does not see fit to do this, NAWL strongly urges that, at a minimum, the committee consider inserting the modifier "excessive" before the word "cost" in order that a clear message be communicated that the priority of this legislation is equality and that cost, as a factor preventing addressing discrimination, must indicate more than minimal, trivial costs. It must in fact be a significant and excessive cost.
I have noted from the transcripts of the committee's other hearings on this bill that the issue of the regulatory power contained within the proposed legislation has been raised. I refer to the power of cabinet to make regulations relating to the defence of undue hardship. I would simply echo the concern that this is not the most appropriate placement of this regulatory authority. Given the fact that the government is most often the respondent in complaints under the Canada Human Rights Act, the provision which allows for cabinet to set regulations about what defence is available to the government with respect to undue hardship undermines the integrity of the protections that the act offers. This undermines the message that these human rights protections are to be taken seriously and that they have fundamental public importance.
Senator Jessiman: Did you say you prefer to limit cost to "excessive cost"?
Ms Young: We prefer deletion of the term; however, our second position is that we would like to see inserted the term "excessive" before the word "cost".
The kind of regulatory power to effect the definition of undue hardship to which I have just referred belongs more properly in the hands of the Human Rights Commission, which is a body with expertise in these matters and with a statutory mandate to advance the cause of human rights protection.
Moreover, the provision in the proposed legislation for these regulations does not adequately allow for the involvement of groups representing disadvantaged individuals with specific equality concerns in the process. It does not adequately allow for the kind of consultation that is important with respect to this essential element of the legislation. It allows for consultation, but there is also the stipulation that, within six months, the regulation can go ahead regardless of whether the commission has reported back.
We would like to see stronger protections or stronger indications of the importance and necessity of a consultative process with these groups.
A number of equality-seeking groups have requested appearances before the committee and have not been given the opportunity to appear. Specifically, the Women's Legal Education and Action Fund and the DisAbled Women's Network would like to have representatives appear before the committee and have not been put on your schedule. There is great concern within the women's groups that these groups have an opportunity to present their views. As I am sure has become apparent to the committee, there is some disagreement between equality-seeking groups on the advisability of including the duty to accommodate and the accompanying defence of undue hardship. I would urge the committee to reconsider its decision not to extend these hearings to allow groups, particularly the DisAbled Women's Network, to have a chance to appear before you.
The Chairman: Over 30 different groups have asked to appear before this committee. We have tried to ensure that the point of view of every group was at least advanced so that we could take it into consideration.
The last group that you mentioned comes under the umbrella group that we heard yesterday.
Ms Young: I believe there is a disagreement within the disability rights community over the perspective to take on this proposed legislation. It is my information that the perspective of DAWN on the legislation differs from the disability rights group you heard yesterday. I would particularly urge the cause of DAWN as a necessary group for the committee to hear, given that it represents both the concerns of women and of disability rights.
The Chairman: We received yesterday a brief from DAWN. It will be distributed to members of the committee tomorrow.
Senator Beaudoin: Ms Young, you referred to a full-time tribunal. I do not have any objection to that. You also referred to appointments, but I did not understand what you are suggesting. Are you proposing a new kind of appointment or something else, some new qualities?
Ms Young: I am not proposing any alternative scheme. I am simply making the point that it may be desirable for the committee in its report to remind the government of its obligations to ensure that the appointments to this permanent tribunal are of a high calibre and that there is the need for tribunal members to have expertise in the area, as well as be representative of the groups within Canadian society which have distinctive equality concerns. It is not a comment per se about the legislation; it is a side comment about the political realities of government appointments and the need, in this context, for those appointments to be substantively sound ones to fully capitalize on the benefits that can accrue from having full-time, permanent tribunal members.
Senator Beaudoin: What background should they have? Should it be in the area of law, human rights or something else?
Ms Young: There are a number of factors important to the background of tribunal members. Legal knowledge is often very critical in tribunal proceedings.
Knowledge of human rights, of the concerns of groups whose equality interests are most at stake in this legislation, are quite critical. I do not think that one must be a legal expert in order to be a human rights expert or to be an effective tribunal member. Some of the most impressive human rights experts within Canada are not people who are legally trained but are people who have extensive experience and knowledge of the human rights protection system.
A variety of these factors are important. I understand the committee has spent some time talking about the necessity of inclusion of lawyers in individual panels and on the tribunal. However, one can get the kind of expertise and proficiency in human rights protection that is desirable from individuals who are not legally trained but who have other kinds of valuable experience and exposure to the subject area.
Senator Beaudoin: I come from a faculty of law as well, where a course in women and the law in always offered. I understand that in each faculty of law there is some kind of an association of women and the law. Does the one that you are from represent the whole of Canada?
Ms Young: That is right. It is a national organization which has a head office in Ottawa with a staff and steering committee representing the different regions of which I am a member. It also has local chapters. Some of these chapters are in law schools. For instance, at the Faculty of Law at the University of Victoria, we have the Victoria chapter of the National Association of Women and the Law.
Some of the local chapters are primarily made up of members of the bar and practising lawyers. There is some variety at the local level, but it is an umbrella organization with a national office.
Senator Beaudoin: How many are you?
Ms Young: There are 12 members on the National Steering Committee. We have two and one-half paid staff members at our national office. As to the number of local chapters, I am sorry, I cannot give you the exact number.
Senator Beaudoin: Is there one in each province?
Ms Young: Yes. In some provinces, such as Ontario, there are more than one.
Senator Beaudoin: You suggest that we add poverty as another item to consider. Would it not be better to add "social conditions" as well?
Ms Young: I did say poverty and social conditions. I mentioned the term "poverty" because I wanted to convey what the substance of my concern is which is about low-income individuals. However, the term "social condition" may be a better term to put in the legislation.
Under the Quebec charter, there is already jurisprudence as to what that term means. It captures, quite adequately, the range of concerns that are distinctive in terms of discrimination from the perspective of low-income individuals.
Senator Beaudoin: We already have some cases on the meaning of that expression.
Ms Young: Within Quebec law, yes.
Senator Doyle: When you were speaking on this point, you spoke about rights being traded off against expense. A moment or two later, you were talking about pregnant women. I missed the point you were making about pregnant women. Could you give me that again?
Ms Young: The point I was making about pregnant women was to serve as a concrete illustration of the ways in which anti-discrimination measures, for which there is wide acceptance in society, may entail costs that, under a wide reading of the defence of undue hardship, may legitimate an employer's failure to provide those anti-discrimination measures.
I gave the example of women workers who, because of pregnancy, may require some shift in their job schedule or in their job responsibilities and that this shift in responsibilities or scheduling may occasion costs on the part of the employer. That situation would be distressing if the existence of those costs were to justify that employer's failure to accommodate the needs of its pregnant female workers.
Senator Doyle: To what extent are women protected by programs of pregnancy leave?
Ms Young: There are legislative protections under employment standards. There are individual protections in the form of collective agreements or some other form of workplace agreement for employers to provide additional benefits or provisions for both maternity leave and pregnancy leave.
There often arises situations in which the context of specific employment, certain job activities or scheduling can become difficult, impossible or even health risks for pregnant women. Accommodation of these needs is usually done on an individual employment context basis.
The legislative urge or motivation for employers to do this is typically human rights legislation. That failure to accommodate the needs of pregnant workers can be seen to be an infringement of the prohibitions against gender discrimination.
Were cost available as a defence against those obligations under human rights legislation, there are quite serious potential consequences for the legislation's ability to encourage or to force employers to bring about a more equitable work environment.
Senator Doyle: I hope you do not rely on a Supreme Court reference to get you where you are going.
I have one other question. I was surprised that in your list of areas where we need improvement, you did not mention the wholesale downsizing of both men and women who are in the 40-to-50 age group, and who seem to me to be the chosen lot for this phase of downsizing. Were not going to raise the question of age discrimination here? It seems to me that if you practise age discrimination on a sufficiently large scale, there is no loud opposition.
Ms Young: The act provides protections against age discrimination, and it may be that there has not been aggressive enough pursuit of enforcing these protections in the scenarios that you describe, senator.
This may be taking us off on another tangent, but I think it is an important one. By allowing the commission to initiate complaints, the situation is created whereby the process need not rely upon an individual who has suffered age discrimination to come forward with her or his own complaint. In that scenario, it is possible that enabling the commission to have a more proactive role in advancing anti-discrimination measures and concerns could deal with the kind of problem you identified where there has not been aggressive individual pursuit of that complaint but there is, nevertheless, a very observable condition of discrimination.
Senator Cogger: Are you telling us that you would like the bill to be amended so as to remove cost as a consideration?
Ms Young: Yes.
Senator Cogger: Is it also your position that, failing that, we should add the word "excessive"?
Ms Young: Yes. I think "excessive" is probably a stronger term than "substantial", but that is our position.
Senator Cogger: Let us look at your second position. Is it not a fact that by the time the cost is excessive, it will have caused undue hardship? You are saying we evaluate undue hardship with regard to considering excessive costs. It seems to me it is a redundancy. If the cost is excessive, in my view, one would have to conclude it imposes an undue hardship. Either we have cost as such as a factor or not. If we have it, excessive costs will be something that will be determined in the evaluation of the hardship, which may be undue or not.
Ms Young: I see what you are stating and I will just pose back to you the dilemma that we are in. We are concerned that the cost must be more than a minimal, trivial, affordable, acceptable cost.
Senator Cogger: If it is trivial, it will not cause undue hardship.
Ms Young: It is unclear how the factor of cost will be read to constitute undue hardship. As I said before, there is concern that there will be tribunal decisions like the recent one in Ontario which found a $7,000 cost to be an undue hardship for the Ford Motor Company. There is a concern that such decisions will proliferate and that there is a need for the legislation to be much more specific and say that the cost must, in fact, be excessive. The finding of undue hardship is a serious matter.
Senator Cogger: You are probably aware that some people have suggested -- and I agree -- that we remove considering health, safety and cost altogether. In other words, we would have the concept of undue hardship, period, and we would evaluate circumstances.
The difficulty I have with your position is that it makes me wonder why you would bother creating a tribunal, appointing a chairperson and a vice-chairperson, with lawyers and whatnot, bringing them here to Ottawa, if in the same breath you are trying to give them so many standards, criteria and so on that eventually you will either try to limit their discretionary power, or you indicate so little confidence in their ability to exercise appropriate judgment, that you give them the job and throw the book at them at the same time.
Ms Young: Those are the two extremes between which legislative drafting always oscillates. There is a concern that the legislative intent be clear and that the discretion that is left for the tribunal to exercise be exercised in the right direction and that all the appropriate indications of what that direction is should be given in the legislation. I do not think that insertion of the word "excessive" in relation to cost problematically constrains the discretion of the tribunal. I think there is a lot of interpretive room still available. Nor do I think that it indicates an inappropriate distrust in the tribunal. I take those to be the two concerns that underlie your comment, senator.
Senator Cogger: You will appreciate also that from many groups, particularly the service providers, of course, there is a great deal of reluctance or difficulty with the bill as it is, where it allows for what have been characterized as victimless complaints. That is one side of that equation. How do you respond to that? Some have expressed concern that bringing complaints will become a cottage industry, and we already have a commission where apparently the lead time is about 40 months or 45 months. Perhaps they do not need a whole lot of further complaints, especially when they are victimless.
Ms Young: There is a very cogent and powerful response to that concern. I would begin by pointing out that it is not about victimless complaints. In fact, I think that is a mis-characterization of the process. It is about initiating a process where there has not been a formal complaint lodged by an individual. In fact, there will be victims, there will be specific instances of discrimination, which will lead the commission to conclude that there is a possible problem of discrimination and to initiate proceedings on its own with reference to very concrete situations it has observed happening in the particular workplace or in a situation of service provision. This change in the responsibilities of the commission reflects what has been for quite a while a very serious concern about the inadequacies of human rights protection as it has existed in the past in Canada. That concern has to do with the fact that the process to date is only a reactive one, and that effective addressing of discrimination concerns often requires a proactive response on the part of the commission. There are many instances where it is not feasible, where it is difficult, or not reasonable to expect that individuals will come forward with complaints but where, nevertheless, there are a number of very clear problems of discrimination or practices which discriminate, and it is important that the commission have the ability to address those circumstances proactively. It is part of a recognition that effective amelioration of discrimination requires a systemic approach and not just an individualized one which relies upon reaction to individual complaints.
The Chairman: With regard to subclause 10(7), you said you thought that the Governor in Council should not be in charge of making the regulations. I am sure, Professor Young, that you realize that all regulations for all acts of Parliament are passed by Order in Council by the Governor in Council. What would you suggest, then, as an alternative? We will obviously not set this bill out of line with every other single act of the Parliament of Canada.
Ms Young: My point pertains specifically to the power in the statute for the Governor in Council to make regulations with respect to the defence of undue hardship, not to the broader regulatory power granted in the statute. I do not think it is appropriate that this power lie with the Governor in Council because the federal government is more often than not the respondent, or the party which will be relying upon the defence of undue hardship. Instead, on this very specific ground, it would be more appropriate for that power to be granted to the commission.
Under the legislation, the commission has the power to issue guidelines or interpretive guides to the legislation. This would simply augment that existing power, but it would locate this specific power with respect to undue hardship in the commission, which has the expertise and the independent and uncomplicated mandate of advancing human rights protection.
The Chairman: But the commission will be much more closely tied in with the Parliament of Canada than this new form of tribunal which will be removed to greater arm's length.
Ms Young: I do not see that as a problem. The commission already issues binding guidelines as to the interpretation of provisions of the act. The commission has a strong mandate to advance human rights protection. It would alleviate some of the concerns of groups such as NAWL if this power to further define or regulate with respect to undue hardship did not lie in the hands of the Governor in Council.
The Chairman: I understand that that power of the commission is presently before the courts. The jury is still out on that point.
I thank you very much for your presentation. You have added and reinforced some of the other presentations that have been made to us.
Colleagues, given Senator Kinsella's time line with respect to reporting the bill, we will have to write the report immediately after the minister appears before the committee. If members of the committee have amendments, the earlier they can bring them forward, the better.
The committee adjourned.