Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 12 -- Evidence
Ottawa, Tuesday, May 28, 1996
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-33, to amend the Canadian Human Rights Act, met this day, at 9:30 a.m., to give consideration to the bill.
Senator Sharon Carstairs (Chairman) in the Chair.
[English]
The Chair: Good morning, colleagues. I want some guidance from you as to how you wish to approach this very important piece of legislation. As you know, the committee has already dealt with a similar though not identical bill, and certainly Senator Kinsella will be going into the differences between which C-33 and S-2.. As a result, your steering committee decided it was appropriate that we hear from the officials of the Department of Justice. In addition, I contacted the witnesses we heard on S-2 and asked them to provide me with any additional comments they might wish to make about C-33. Some of them have done that and that information was distributed to your offices yesterday I understand, but is it your wish now to hear from the officials of the Department of Justice?
Senator Jessiman: When we considered the bill placed before the Senate by Senator Kinsella I did not receive many comments from constituents of Manitoba. Since this bill has been put forward I have received 54 phone calls and 56 letters, all of which are against it. They appreciate that it will pass but they would like to see the bill amended to exclude churches and religious schools. They feel that this bill discriminates against their right to freedom of religion.
They also would like to see the term "sexual orientation" defined. I know that question of definition has been discussed before the courts, and, although they have defined it somewhat, they do not think that a full definition is necessary. Many of these people have made the point that churches and religious schools do not want to have homosexuals teaching their children or ministering in their churches.
I simply bring that matter to your attention. I know that a Manitoba statute provides for this situation somewhat, but I would like to read a paragraph from one letter. It may be a bit of a stretch, but it says:
The award of such rights to those who practice homosexuality is a huge crack in the dam. Personal responsibility for behavioral choices is already under attack. The sexual preference of paedophiles is small children. Why then discriminate against them? Indeed, the sexual preferences of rapists is unwilling women. Why discriminate against them?
I bring that to your attention because I am concerned about churches and schools.
The Chairman: Senator Jessiman and I think it is important for the justice officials to address that question when they appear before us. The senator and I are from the province of Manitoba. This subject received much discussion in the province during the passage of a bill in 1987, and I was sitting in the legislature at that time. Education, as you know, is a provincial responsibility. The Manitoba Human Rights Act contains a section excluding religious groups from enforcement under the act with respect to the hiring teachers to teach in their religious schools. It is important for the justice officials to affirm today that this particular piece of legislation does not in any way impact on education in Canada. I understand that it does not, but they can elaborate.
We have three departmental officials here this morning; John Scratch, senior general counsel, Stephen Sharzer, general counsel and Jim Hendry, counsel, human rights law.
Mr. John Scratch, Senior General Counsel, Department of Justice: Madam Chairman, as you know, we were here a few weeks ago when you were dealing with Bill S-2, and we are delighted to appear this morning as you deal with Bill C-33. I have a brief opening statement before I try to respond to your questions.
The principle of this bill is the same as Bill S-2; it is to ensure that people are not discriminated against on the basis of sexual orientation. The last time I was here I spoke about the areas of coverage of Bill S-2 and the Canadian Human Rights Act. What I said then applies to Bill C-33 as well.
There are some differences between Bill S-2 and Bill C-33 but the basic purpose is the same. The first thing is that Bill C-33 has a preamble. The preamble to the bill states the basic principle of this amendment when it affirms the dignity and worth of all individuals and recognizes that they have the right to be free from discrimination in those areas coming under federal jurisdiction. That this bill just deals with areas under federal jurisdiction, is an important point.
The preamble also recognizes family as the foundation of Canadian society and affirms that the amendment will not alter the fundamental role of family in our society. The preamble simply confirms the government's view that this amendment does not affect the role of family.
The preamble also says that the law applies to lawful conduct. Under the Charter, and in those jurisdictions in Canada that have included sexual orientation in their laws, it is clear that the law applies to lawful behaviour. The preamble makes this express.
There is one other difference between Bill S-2 and Bill C-33. Bill C-33 does not include an amendment to section 16, the affirmative action provision. In our view, this will not make a practical difference. In almost 20 years, section 16 has only been used once by a tribunal to order an affirmative action program under the Canadian Human Rights Act in a case of discrimination against women. With respect to sexual orientation, the cases have sought to break down barriers. The Human Rights Tribunal will have full power to order someone to cease discrimination and to provide a remedy to someone who has been harassed, fired from a job or refused a service.
In the end, the basic goal of Bill C-33 is the same as Bill S-2; it is to expressly amend the Canadian Human Rights Act to prevent discrimination on the basis of sexual orientation.
That is all I wish to say by way of opening statement and I would be pleased to answer any questions that you have.
Senator Beaudoin: My first question is on the preamble. Of course we have many cases of the Supreme Court that say the preamble may be taken into account to interpret the statute, and you referred to family. I am not too worried about that, but you must realize that, while marriage and divorce are federal, family law is not federal to a great extent. At least, Quebec has greater jurisdiction in matters of family under the Civil Code.
As stated in the proposed section 2, the powers under this legislation will remain within the legislative authority of Parliament. However, I want to be absolutely sure, and I would like it to be on the record that there is no attempt on the part of the Parliament of Canada to define family?
The reason why I say that is this: I have no problem as far as discrimination is concerned. I am in favour of the principle of that legislation. However, I may have a problem in the future with, for example, adoption and other matters under the provincial competence. Obviously the bill does not touch in such areas so it is acceptable to me, but I would like to have some affirmation on this point.
Mr. Scratch: There is no definition of family here, and in our view it is not necessary. The preamble sets the context for the bill. This bill is about discrimination in areas of employment and the provision of goods and services in that it adds sexual orientation to the list. In our view, that is the ground for dealing with issues and problems that will arise in this area, and it is not necessary to define family.
Senator Beaudoin: I agree, and I do not have any problem with that principle.
Mr. Scratch: I have one other point: This bill and this amendment will not affect provincial law, it simply applies in areas of federal jurisdiction.
Senator Beaudoin: I would like to know a little more about the question of the religious association. I can understand their concern but what is it exactly? Do they fear that the law of the land, this federal legislation, may regulate to a certain extent the internal constitutions of religious associations and they do not want to have, for example, homosexuals in their ranks?
Mr. Scratch: I believe that has been the concern expressed but, once again, in my view the matters referred to are all within provincial jurisdiction; religious schools and various other matters with respect to religious activities, are all within provincial jurisdiction and this amendment will not affect nor have an impact on them.
However, on the point of teachers in religious schools, there has been jurisprudence from the Supreme Court of Canada on this issue. The Supreme Court has found it reasonable and justifiable, for example, for a Catholic school to require that the religious views of its instructors conform with the views of the church. This amendment will not have an impact on that jurisprudence. Even if it did, the Supreme Court has dealt with issues such as what a church can require from its teachers, and I believe that there is ample room here for a church to require its teachers to adhere to the beliefs of the church.
Senator Beaudoin: You refer to the Caldwell case?
Mr. Scratch: Yes.
Senator Beaudoin: I have no problem with that either because section 93 is clear-cut in that it gives constitutional protection to denominational schools. It may be amended, and we will soon see in the case of Newfoundland when it comes before us, but that is another problem. We are not concerned with that here. What are these groups concerned with, the associations in Winnipeg, for example? I would like to know what the problem is for them.
Mr. Scratch: I am not sure I am the one to answer that question, with respect. Certainly I have heard from people from various churches and other organizations. A number of groups appeared before the House of Commons committee that considered this bill and outlined a number of concerns, as I said to you, just as a general matter. In my view, those matters are covered by provincial law, not by this amendment, and that is in fact where their concerns must be dealt with.
I mention the case law on teachers in religious schools by way of pointing out that, when the issue has come up through various cases that have arisen in the various provinces, the courts have been able to deal with the matters and certainly have been able to give religious organizations the leeway to employ people who share their beliefs or who believe in the doctrines and dogmas of the church.
Senator Beaudoin: I take it that if there is a problem it comes under provincial law?
Mr. Scratch: Yes.
Senator Jessiman: My question has to do with the family. Part of my question was about whether "family" has been defined, and you have said that it is not. What does the department, those administering the Canadian Human Rights Act, those who put forward this preamble, say is family and its place in the foundation of Canadian society? What do you understand it to be?
Mr. Scratch: If you have heard and listened to the concerns that have been brought forward, especially around this bill, there are many definitions of "family" in Canada.
Senator Jessiman: To include same sex couples with children, is that a family?
Mr. Scratch: The point the Minister of Justice has made is that this bill is not a debate about the definition of "family" and that it is not necessary to get into it in order to ensure that gays and lesbians are protected from discrimination. You only need to look at the cases that have come, especially recently, before courts and tribunals. For example, the most recent decision of the Supreme Court of Canada in Egan and Nesbitt dealt with the issue of whether or not one person in a same sex couple should receive a spousal allowance under the pension plan, not on the basis of family status or marital status, but on the basis of sexual orientation.
I think that debates about family in this context are really quite destructive because it leads us away from the central point of this bill and of Senator Kinsella's bill, which is the prohibition of discrimination, not the definition of "family", not the definition of "marital status" or "marriage."
Senator Jessiman: I have no objection with the part about discrimination, I think there should be protection against discrimination, but surely if you are defining it or placing "sexual orientation" in the act, I do not think it is unreasonable for senators trying to consider this bill to ask that you tell the Canadian public what you think is the definition of "family." You are talking about "family" as the foundation of Canadian society. I would like to know what the government thinks is "family." If it thinks it is same sex couples, tell us. If it thinks it is same sex couples with children, tell us. That is all we are asking.
Mr. Scratch: I do not think it is necessary to define the role of family.
Senator Jessiman: You have put it in. I want to know the meaning.
Mr. Scratch: It is not in there for that purpose. It is in there for the purpose of stating clearly that this amendment does not affect the role of family. That is the important point to remember in this debate, that it does not.
Senator Jessiman: What you are saying to me is this: While you have included the word "family" in reference to it being the foundation of Canadian society, you are saying to me, as someone who is seeking information to determine whether to pass the bill or have it amended, that you will not tell me what you think "family" means. Do we have a choice? Do we decide what "family" means?
Mr. Scratch: I do not think anybody has to decide and I think the purpose of the preamble is in fact to make that clear, that this amendment does not affect the role of family, whatever it means to you and many other people. The purpose of this amendment is to deal with discrimination against gays and lesbians, it is not to affect the role of family.
Senator Jessiman: That part I agree with, but I certainly do not agree with the preamble. I really want to know what it means but you are not prepared to tell us what it means.
Senator Kinsella: I would like to turn our attention to section 16, which is not covered by Bill C-33. In my opinion, that is a major distinction between Bills S-2 and C-33. What is your opinion as to the applicability of section 15(2) of the Charter in relationship to section 16 of the Canadian Human Rights Act?
Mr. Scratch: May I ask you to elaborate a bit on your question?
Senator Kinsella: Is it not true that our Charter of Rights and Freedoms and Constitution provides, in section 15, that everyone is equal before and under the law without discrimination, and then subsection (2) of section 15 explicitly provides that there may be special programs of the very kind, almost word for word, contained in section 16 of the Canadian Human Rights Act?
Mr. Scratch: No, that is certainly correct. Section 15(1) sets out the basic guarantee of equality and then section 15(2) says that an affirmative action program set out within the confines of section 15(2) will not be a violation of section 15(1). What I would say is that both section 15(2) and section 16 of the Canadian Human Rights Act are permissive; they permit affirmative action programs under certain conditions but, of course, neither is mandatory.
Senator Kinsella: In my judgment, there is a certain amount of cognitive dissonance created when one uses the term "affirmative action". That term is neither used in section 16 of the Human Rights Act nor in section 15(2) of the Charter. The Charter speaks of programs or activities that have as their objective the amelioration. Similar terminology is in section 16.
Mr. Scratch: You are right, they both use "programs", sometimes "special programs", and I think also sometimes "affirmative action programs", and I think in the Charter the marginal note on section 15 says "affirmative action programs". Technically speaking, in the Charter it is not referred to but certainly the marginal note has it and I think in common parlance we frequently will say "affirmative action programs", meaning these types of programs or special programs.
Senator Kinsella: Is it not true that the Supreme Court of Canada has determined that section 15(1) of our Charter is to be read as including sexual orientation?
Mr. Scratch: Yes, they have.
Senator Kinsella: Would that therefore mean that section 15(2), as far as our constitutional human rights law is concerned, would have included sexual orientation?
Mr. Scratch: The courts have not ruled on this at all with respect to 15(2). Undoubtedly, as Senator Beaudoin has said, the issue will come up.
Senator Kinsella: Is there any technical reason in your opinion not to include sexual orientation in section 16 of the act?
Mr. Scratch: No, I do not think there is a technical reason. I think it is a question of policy really.
Senator Kinsella: Is it basically your testimony to this committee that the subject matter of Bill C-33 is the same as S-2, the principle or the scope is basically the same?
Mr. Scratch: Yes, it is. I think the basic purpose is the same, and that is the prohibition of discrimination.
Senator Milne: A lot of rather heated terms have been used when this act has been discussed. It might be helpful for the record if you would respond to the suggestion that this Canadian Human Rights Act supersedes the Criminal Code. I am thinking particularly of the idea that paedophilia will somehow be protected by this bill. How would you respond to that?
Mr. Scratch: I would say that paedophilia will not be protected by this bill. I know a number of people have questioned why sexual orientation has not been defined. When I was here last time I said I thought there were two good reasons why it was not defined; first, there have been a number of cases before courts and tribunals and I do not think, from looking at some of them, that they have any problem in applying this term. The Supreme Court of Canada recently, in confirming that in fact sexual orientation was part of section 15 of the Charter, did not appear to have any need to have a definition. Second, a basic principle of human rights law is the protection of vulnerable groups, and children are a vulnerable group. Paedophilia, whether committed by homosexuals or heterosexuals, will not be protected by this amendment.
Senator Milne: Good. I am glad to have that confirmed loudly and clearly.
In response to Senator Jessiman's concerns about the family as it is mentioned in the preamble, does Canadian law define race or religion anywhere?
Mr. Scratch: Not that I know of.
Senator Milne: Terms like family, race and religion are terms that are generally left to the courts to define?
Mr. Scratch: If you look at most of the grounds in the Canadian Human Rights Act, marital status, family status, have been interpreted by tribunals and by courts through individual cases. The jurisprudence is the same. I mean, tribunals and courts have not defined the terms, but they have interpreted them in the context of the case.
Senator Pearson: My question follows directly from Senator Milne's. These are always opportunities for those of us who are not lawyers to learn and, while I have no fundamental problem with the legislation at all, I am interested, like others, in the issue of the family and the individual. I have two questions of fact. There is the question of marital status and family status, which are already in the act, are they not?
Mr. Scratch: Yes.
Senator Pearson: What do they mean? You say there is jurisprudence.
Mr. Scratch: If you can just bear with me a minute, there have been definitions of them and if I can just turn to this reference. Family status has been interpreted by the courts to mean being in a family relationship, such as mother and son or sister and brother.
Senator Pearson: How would that possibly act as a basis for discrimination?
Mr. Scratch: Nepotism cases are usually the instances where that happens. Marital status has been interpreted to mean being single, married or living in a common-law relationship.
Senator Pearson: My other question is more philosophical. I am merely raising the issue, it is not an argument. If the government recognizes the family as the "foundation" of Canadian society, philosophically others may say that actually individuals are the foundation of society. Is anyone prepared to tackle that stance?
Mr. Scratch: My response to that would be that this act protects individuals and does not deal with families in this context.
Senator Doyle: I want to pick up on a turn of phrase that you used. You have said, in referring to something or other in the bill, that the courts have been able to satisfy, that you believe that Bill C-33 will invite judicial clarification, and that it is really not very clear itself. King John may never have allowed the Magna Carta through if he had known where it was going. Are we dealing with a piece of legislation in the hope that the more delicate questions it raises will be satisfied in the courts, by the courts and not as a specific part of the act?
Mr. Scratch: In legislation there is always a fine line to be drawn as to what you define and what you do not, although one of the cardinal rules is that you should not put in definitions if they are not necessary. What I said earlier is that as a result of the Haig decision of the Ontario Court of Appeal in 1992, sexual orientation was effectively added to the Canadian Human Rights Act and since that time the Canadian Human Rights Commission has accepted complaints on that basis. There have been a number of cases both before tribunals and before courts dealing with the term and it is my observation, which is borne out by others, that they have not had a problem with the term. I mean, they have not searched for its meaning. I believe there have been one or two decisions which have stated clearly that "sexual orientation" means homosexuality, heterosexuality and bisexuality, but in general the courts have proceeded to deal with the issue before them without the need for further definition.
Based on that process, it is our view that in fact they will be able to take this amendment and deal effectively with the issues of discrimination that are raised before them. All legislation grows or is eventually interpreted by courts as time passes, there is no doubt about that. However, in this instance, it is our view that there is sufficient clarity here for courts and tribunals to deal with the issues that may come before them.
Senator Doyle: The criticism that I hear most frequently in letters and in phone calls is that the court has already indicated that if the law were changed, much in the fashion that this would change it, they would be willing to deal then with questions of compensation, family status and so on, but that until that requirement was met they would not feel that they could rule. I think Judge Lamer himself is the author of a famous decision in that area. That is what I meant by "invites", as differing from saying, "Well, our habit is to have the courts, when they feel it is correct, to clarify the law," but there is another way, which is to almost invite them to make the law, particularly where it may be politically something less than expedient to be specific.
Mr. Scratch: Perhaps the case you are referring to is the Mossop case and the comments of the Chief Justice then with respect to family status in the Canadian Human Rights Act. There are a couple of points that I should like to make there: First, one of the other judges, Mr. Justice La Forest, also commented with respect to "family status", and his comments were, in a number of ways, quite different from the Chief Justice's. Second, and perhaps most important, the issue that was before the court then came before the court again in Egan and Nesbitt, which is a later case. In that case, which involved discrimination against a partner in a same sex couple, the court did not turn to family status or to marital status, they turned to the ground of sexual orientation to deal with the legal issue. That case is a demonstration of how the courts in fact will deal with these issues now. They will not deal with them under the grounds of family status or marital status and you will not find new definitions. You will find that they will deal with those issues under this ground of sexual orientation, and they certainly can do so.
Senator Doyle: To come back to the original question, I take it from what you said that you do not feel that the legislation invites immediate judicial response to clarify it?
Mr. Scratch: No. Quite frankly sexual orientation has really effectively been part of the Canadian Human Rights Act since 1992. It has been very clearly under section 15 of the Charter since the decision in Egan and Nesbitt last year. This amendment is really making express what was already there in the law, and the Canadian Human Rights Commission has been dealing with these cases.
Some people may ask, "Then, what is all the fuss about? Why are you putting it in?" and one of the answers to that is that people should be able to pick up a copy of the Canadian Human Rights Act and know right away what are the prohibited grounds of discrimination. That is a major reason for this legislation, to make sure that any Canadian can pick up a copy of this act and know, without referring to the jurisprudence, what are the prohibited grounds of discrimination. As I say, the courts and tribunals do not appear to have had problems interpreting and applying it. I do not see the need for great clarification but now that it is expressly there, we will be able to get on to other issues, if you approve it.
[Translation]
Senator Losier-Cool: Madam Chairman, I have a question directly related to the one senator Doyle asked about the meaning of "sexual orientation". I believe seven provinces have already included sexual orientation as a ground of discrimination. Did they define this expression?
[English]
Mr. Scratch: The Yukon is the only province or territory that has defined it, and Manitoba, I believe, has said that anything in the act or any of the prohibited grounds of discrimination only apply to lawful agreement. I believe there are eight provinces and territories that have it. There is only one that has a definition, which is the Yukon, and Manitoba has that general provision applying to it. The definition in the Yukon Act is very similar to the one I set out before.
Senator Losier-Cool: With regard to the Employment Equity Act -- and you will remember that not too long ago that legislation was before the Senate and we defined the four groups including, women, natives and handicapped -- could it be that eventually we will add sexual orientation, or gays and lesbians? Could there be a link between what you are putting in the Human Rights Act now, and we will eventually put in the Employment Equity Act?
Mr. Scratch: They are two different pieces of legislation. You must keep in mind the targeted groups in the Employment Equity Act. Presumably it is open to the government of the day to change, to add or whatever, but there is no link between the two pieces of legislation with respect to the targeted groups in the Employment Equity Act.
It would seem to me that the groups included under employment equity is very much a policy question. Where there is the need to improve rates of employment, what groups do you look at, and that is why I think the four groups were chosen. What will happen in the future of course is difficult to say, but there is no necessary link between the two pieces of legislation.
Senator Gigantès: When you were asked by Senator Jessiman about the preamble and the family being the foundation of Canadian society, you said something which I interpreted to mean that this particular paragraph, the second one of the preamble, meant that this act was not dealing with the family. Is that correct?
Mr. Scratch: Yes.
Senator Gigantès: Could you repeat your words, and explain why you said them?
Mr. Scratch: I do not know if I can repeat them exactly because I have said so much this morning. What I tried to say is that in order to deal with the problem of discrimination against gays and lesbians it is not necessary to define "family", and the government has chosen not to define "family." The emphasis and the purpose of this bill is to end discrimination against gays and lesbians, and that is why sexual orientation has been added. In fact, that term gives to the tribunals and the courts the necessary room to deal with issues of discrimination that will come before it.
Senator Gigantès: That is not what the second paragraph says. You have had to explain it to us and, as always, I must ask why you do not write in a way that you do not need to explain it to us? Perhaps you could produce a text so that people can see what are the prohibited grounds of discrimination or see what you are arguing it should be, You used the adverb "clearly," in other words so that people can see clearly. Then you put in this paragraph which refers to the importance of family as the foundation of Canadian society. When you look at that you say, "Wow, we are talking about the family here." Then you explain quite clearly that no, we are not talking about the family. Why could you not say something that somebody who has spent his life with the language can understand without needing an explanation?
Mr. Scratch: I can only respond to you in this way: The Minister of Justice said the preamble is there to provide the context, and the context is that this amendment does not affect the fundamental role of the family in Canadian society because this amendment is not about family, it is about prohibiting discrimination against gays and lesbians.
Senator Gigantès: Why did you not say that?
Mr. Scratch: What I would do is pull you into clauses 1 and 2, where in fact I think it does say that really quite clearly. It says, "The prohibited grounds of discrimination are," and outlines them clearly.
On the question of language, I am sure that we could have a long debate, especially between a lawyer and journalist, if I may say so. I think there is always an attempt to express legislation as clearly as we can but there are other considerations.
Senator Gigantès: No, there is not. I have been on this committee long enough to be convinced there is a conspiracy in the Department of Justice to produce language that is not clear. I am beginning to despair of this situation. The principle that the laws are published so that people can read them implies, I think, that people can understand them without hiring Senator Bryden. With regard to another paragraph, subsection (5) of some bill we saw there, Senator Bryden said that he could make a living just out of that paragraph alone, simply because it had so many possible interpretations.
Senator Bryden: Do not be too difficult on these gentlemen, I may need to go back to making a living.
Senator Gigantès: Could I again make the plea I make every time: Would you please write in clear English and French?
Mr. Scratch: You may not believe me totally but a great deal of time and effort is put into trying to do just that.
Senator Gigantès: I remember an occasion when three deputy ministers yelled at me because I had written a draft cabinet document in two pages. They said," Are you crazy?" I said, "I am sorry, is it not clear?" He said it is, go back, I want 320 pages of obfuscation.
Mr. Scratch: This bill has the benefit of being brief.
Senator Gigantès: Yes, that is true, but with an offensive paragraph which says that the family is fundamental and then you interpret that thing to say, well, we will put it in there to mean that this has nothing to do with the family.
Senator Jessiman: I would think your preamble would make much more sense if we defined "family" as the International Bill of Human Rights defines "family". Let me read part of article 16. It says:
Men and women of full age without any limitation due to race, nationality or religion have the right to marry and to found a family.
That is under the International Bill of Human Rights. It goes on to say:
The family is the natural and fundamental group.
"Natural group", I suggest, must include persons of opposite sex, and, if that is what is meant in the preamble, I think it would make a lot of sense. It is saying in effect, look guys, we have families as we all understand families, men and women that procreate together. We have that there but notwithstanding that we will not discriminate against lesbians and homosexuals. That I would agree with, but I think it makes sense if family is interpreted to mean what I always thought it meant, that it was man and woman and children.
Senator Gigantès: "Full age", that has a great variation socially and culturally around the continents.
Senator Jessiman: They do not mention age in here.
Senator Gigantès: Yes, you said "men and women of full age."
Senator Jessiman: They did say, "full age", you are right, excuse me.
Mr. Scratch: The preamble was put in there because a number of people seem to think that this bill was about the rights of family. The point I was trying to make is the same as the point that the Minister of Justice has made, over and over again, that that is not what this bill is about. This bill does not affect the rights of family, this bill prohibits discrimination against gays and lesbians. Therefore, if we get into a definition of family, and whatever else, we get into a debate that is not relevant for the purposes of this amendment nor for the purposes of this bill. The preamble was put in there, if you want, to get that issue off the table. It may have succeeded with some and not with others but that was the purpose of it.
The Chairman: It is my understanding that the preamble does not in fact find its way into the Canadian Human Rights Act. Is that correct?
Mr. Scratch: That is correct.
The Chairman: It is actually only the sections of the bill itself that will end up in the Canadian Human Rights Act?
Mr. Scratch: That is correct.
Senator Beaudoin: The second paragraph of the preamble is not strictly necessary, but it is there, and we do that often in legislation just to reassure people on what is the intent of the bill. I learned one thing in the drafting legislation courses and that is you had better stick to the idea, not more, not less, because if you start out wanting to nail down everything you end up with many sections in the bill.
Personally, I do not have a problem with the bill because in section 2 you say strictly that Parliament will stay within its own sphere. Everything that is provincial will be taken care of by the provinces. In other words, you are just legislating on one point. The second paragraph is there only to say we are against discrimination. However, we are not changing the definition of "family", so, on the whole, I do not see any problem with the bill.
Senator Kinsella: I believe that this committee has canvassed all of the issues relating to this bill by our study of Bill S-2. Bill S-2, which was adopted by the Senate, is more comprehensive because it also covers section 16. The only question in my mind is whether or not an amendment to Bill C-33 to have sexual orientation apply to section 16 would be appropriate. I would like to delve into that because you made the comment, if I heard correctly, that in practice the Canadian Human Rights Commission has not made much use of section 16. Are you aware of the usage of the similar provision in the Human Rights Act that is applied in those eight provincial and territorial jurisdictions which have included sexual orientation in their respective statutes. How often have those commissions approved programs or issued guidelines?
Mr. Scratch: We are not aware of any tribunal decisions in which they utilized affirmative action programs. However, that does not mean that it has not been done.
Senator Kinsella: That coincides with my own personal research. I also have not been able to find a board of inquiry decision or a tribunal decision dealing with this issue. I was, however, able to find two cases, one in Nova Scotia and the other in Manitoba, where a special program was approved by the commission to help with a group that was disadvantaged because of sexual orientation. One had to do with a Nova Scotia woman with a telephone counselling line that was restricted for the benefit of the disadvantaged group.
From a practical standpoint, Madam Chair, I tend to concur with the view that the main thrust of combating discrimination can be achieved at the federal level with Bill C-33. However, once the Canadian Human Rights Act is amended by Bill C-33 and becomes law one will find under section 16 a list of prescribed grounds, and that particular prescribed ground will be missing. Do you see any negative possibilities in that fact?
Mr. Scratch: There is one other ground missing from the list, conviction for which a pardon has been received. We certainly considered that point and, as I stated earlier in my statement, we concluded that amendments to sections 2 and 3 were the most important aspects. That position was taken in light of the remedies already in place. For example, tribunals already have the power to remedy discrimination where they find it. On that basis and considering the checks and balances the policy decision was made not to amend section 16.
Senator Kinsella: Is there another means by which the Canadian Human Rights Commission could develop guidelines on special programs similar to the Ontario Human Rights Commission's guidelines with respect to programs? New Brunswick has them and all of the commissions generally have guidelines. Almost all the statutes governing provincial human rights commissions have a section that says that it is the duty of the commission to conduct public education programs to promote the combating of discrimination on all the prescribed grounds. In your judgment would the federal Human Rights Commission be able to conduct proactive programs to deal specifically with institutional discrimination or historical discrimination or systemic discrimination?
Mr. Scratch: They have the power to conduct educational programs.
Senator Kinsella: Would they be able to combat the historical discrimination against Canadians because of their sexual orientation?
Mr. Scratch: Yes, in my view they would have that right.
Senator Doyle: I am not really sure what we have recommended particularly with regard to dropping the preamble. I suppose that does cause a certain change in the bill, and it is really pretty harmless. It might have been at one time, perhaps in the first draft, a useful explanation of what was to follow. Now, it seems to exist merely to tell you what does not follow, which is an odd way for a preamble to work. I do not think that the bill itself does a great deal to clarify anything. I side with Senator Gigantès on that point. Not all of the fault lies in the language; I think some of it is in the intent. However, I do not see where the bill can do much harm.
The Chairman: Is it the will of the committee to proceed with clause-by-clause study?
Hon. Senators: Yes.
The Chairman: Senator Kinsella, you have a motion to make?
Senator Kinsella: I move that we dispense with the clause-by-clause study and that the committee report the bill without amendment.
The Chairman: Is that the will of the committee?
Hon. Senators: Agreed.
The Chairman: Agreed and so ordered.
The committee adjourned.