Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 2 - Evidence
OTTAWA, Thursday, October 30, 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 10:55 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chair: Senators, we have with us this morning from the Department of Justice Mr. Mark Berlin, Mr. Stephen Sharzer, Ms Gloria Mintah and Ms Carole Théberge. The floor is yours.
Mr. Mark Berlin, Senior Counsel, Criminal Law Policy Section, Department of Justice: Madam chairman. I am pleased to speak to this committee today concerning Bill S-5. I will provide some explanations concerning the background of this legislative initiative so that committee members will better understand its background. I will also explain the amendments which relate to criminal law reform, more particularly to the Canada Evidence Act and the Criminal Code.
Mr. Sharzer will then explain the amendments relating to the reform of human rights legislation, more particularly to the Canadian Human Rights Act. We will, of course, be happy to answer any questions concerning our respective law reform initiatives which have been put together in this one bill.
This bill is essentially the same as Bill C-98, which died on the order paper with the most recent dissolution of Parliament. Let me briefly give this committee some historical context to this legislative reform package.
[Translation]
In May 1991, the federal government announced its commitment to a five-year national strategy for the integration of persons with disabilities. The first step in the national strategy was Bill C-78, an Act to amend certain acts with respect to persons with disabilities. This omnibus bill amended six federal laws, including the Criminal Code, the National Transportation Act, the Canada Elections Act, the Citizenship Act, the Access to Information Act and the Privacy Act. It came into force on June 30, 1992.
[English]
In response to demands by disability advocates, the Department of Justice has been reviewing legislation within its mandate to identify and find ways to deal with barriers to access for persons with disabilities. During the past number of years, extensive consultations have taken place involving the disability community, the equality-seeking groups, employer groups, the police, and the defence bar.
As well, the Standing Committee on Human Rights and Status of Disabled Persons issued its fourth report to the House of Commons in December, 1995, recommending legislative action to remove barriers for people with disabilities. The Federal Task Force on Disability Issues was established on June 5, 1996, jointly sponsored by four departments and four ministers: Human Resources Development, Finance, Revenue, and Justice.
This task force, chaired by the Honourable Andy Scott, released its report on October 28, 1996, calling for the government to introduce amendments to the criminal law and to human rights legislation in respect of persons with disabilities.
[Translation]
As I mentioned before, Bill C-98, which contains basically the same amendments as this Bill S-5, died on the Order Paper with the calling of the last elections. However, in the Liberal policy plan, "Securing Our Future Together", the Liberal government indicated its commitment to propose changes to the Criminal Code, the Canada Evidence Act and the Canadian Human Rights Act and promised to reintroduce this package on a priority basis, which is what is being done here with this bill.
[English]
The recent Speech from the Throne indicated that, "The government will continue to work with the provinces to ensure greater mobility for people with disabilities to ensure their integration into the economic and social mainstream of Canadian life."
Bill S-5 contains several positive and concrete steps to address some of the most pressing concerns that persons with disabilities have with the justice system. In addition, the proposals in Bill S-5 form an important part of the federal government's response to the task force.
At this point, Madam Chair, I would like to discuss amendments that are being proposed in respect of the criminal law.
More than four million Canadians have a disability, representing some 16 per cent of the Canadian population. Research into the incidence of physical and sexual abuse against persons with disabilities has consistently found that they are at a much higher risk of abuse than non-disabled persons. The criminal law amendments contained in this bill will assist the disability community in gaining easier access to the criminal justice system to address these and other related problems.
Bill S-5 contains five disability issue areas which were found appropriate for criminal law reform. First, a new provision of the Canada Evidence Act will provide that communication assistance would be made available to persons with disabilities who have special communication needs, irrespective of whether they are the accused or a witness. This would allow, for example, the use of a Bliss board by persons with cerebral palsy, the use of sign language interpretation by persons who are Deaf, the use of an assisted listening device -- real time captioning or oral interpretation -- by persons who are hard of hearing, and the use of other types of communication facilitators. Prior to authorizing such assistance, the judge may hold a voir dire to determine whether the proposed type of assistance is necessary and reliable.
Second, a new provision in the Canada Evidence Act would provide that alternate means of identification of the accused, for example, by auditory or tactile means, can be admitted in court. This would be in addition to the more traditional means of identification, that is to say, visual identification.
[Translation]
The rest of the criminal law amendments involve the Criminal Code. The third amendment contained in this bill deals with a new provision that would make it possible for witnesses with disabilities that make communication difficult to testify by means of videotaped evidence, whether such witnesses are complainants or not, and with respect to the same offences currently listed in section 715.1 in respect of young witnesses.
Essentially, these offences are related to situations of sexual abuse, pornography, prostitution and assault. In these cases, a videotape made shortly after the alleged offence is admissible in court provided that the disabled person adopts the content of the tape while testifying in court and is available for cross-examination. Furthermore, the court can order restrictions concerning the use of such videotaped evidence, except for the use intended. This would be helpful to protect the privacy of the person whose story is recorded on videotape.
[English]
Fourth, a series of related amendments to the Criminal Code would encourage the participation on juries of persons with disabilities. First of all, an amendment to section 638(1)(e) would provide that a physical disability is generally not a cause for exclusion if, with proper technical assistance, support or interpretation, the person is capable of jury service. For example, a person who is deaf could serve on a jury if, with the use of American Sign Language, le langage des signes québécois or LSQ, he or she is able to follow the proceedings.
The other amendments to the Criminal Code with respect to juries are intended to provide for the presence of attendants or interpreters who are providing support to a disabled juror. An amendment to section 649 would extend the obligation of nondisclosure of jury deliberations to these attendants or interpreters. A new subclause to section 649 would make it an offence for an attendant, interpreter or other support person to interfere or unduly influence jury deliberations.
An amendment to section 631(4) would provide that any attendant, interpreter or other support person shall swear to interpret objectively and to forego interference or undue influence.
Finally, a new provision would be added to the Criminal Code to establish the hybrid offence of sexual exploitation of vulnerable persons with disabilities who are in particular situations of dependency with respect to the offender. The offence would be punishable upon summary conviction for a term not exceeding five years. This amendment would be particularly useful, for example, in the case of vulnerable dependent adults with disabilities who are institutionalized or who receive attendant care or similar services in their homes and are sexually exploited by their care givers. This amendment, however, would also provide that such dependent adults can nevertheless consent to sexual activity when they so choose.
In addition, section 278.2(1) of the Criminal Code would have to be amended to add this new sexual exploitation offence to the list of sexual offences in relation to which the records of the complainant or witness shall not be produced to an accused.
By and large, these amendments to the Canada Evidence Act and the Criminal Code have received wide-spread support from not only the disability community, but also the provincial and territorial jurisdictions, the defence bar, and law enforcement officials.
I now turn to Mr. Sharzer to discuss the amendments in respect to human rights legislation.
Mr. Stephen Sharzer, Senior Counsel, Human Rights Law Section, Department of Justice: Madam chair, like my colleague Mr. Berlin, I am also pleased to speak to the committee today on Bill S-5.
Mr. Berlin has already given the background of the legislative package. I will, therefore, proceed directly to highlight some of the amendments relating to the Canadian Human Rights Act.
The key element of the amendment to the Canadian Human Rights Act is the addition of an express duty to accommodate the needs of persons protected by the act, including persons with disabilities and religious minority groups, taking into account health, safety, and cost. The duty of accommodation helps to eliminate barriers so as to ensure equal opportunities in the work place and in the provision of services or goods for all Canadians. The proposed express duty of accommodation represents a balance between the needs of persons with disabilities and the obligations of employers and service providers.
Apart from the duty to accommodate provisions, there are other changes to the act. Many of these are codifications of existing law, while others have been adopted to bring the federal law in line with provincial human rights legislation.
[Translation]
For instance, the bill recognizes that individuals may be discriminated against on the basis of multiple grounds of discrimination. The bill would also make retaliation or threat of retaliation a discriminatory practice. In addition, human rights protection would be extended to contracts for personal services. Furthermore, the bill would now allow human rights complaints to be filed in the provision of goods or services where there is no identifiable victim.
[English]
Madam Chair, one other important amendment to the Canadian Rights Act is the streamlining of the Canadian adjudicative process with the establishment of an efficient, dedicated, small and permanent Canadian Human Rights Tribunal. The tribunal, which would replace the present ad hoc panel system, would have 15 members, including a chairperson and a vice-chairperson. Members of the tribunal would be required to have experience, expertise and interest in, and sensitivity to human rights matters. Appointments would also be made having regard to regional representation.
The remedial powers of the tribunal would also be enhanced. For example, the existing maximum of $5,000 for compensation for pain and suffering would be increased to $20,000. Special compensation of up to another $20,000 could be awarded against a person who engages in discriminatory practices wilfully or recklessly.
[Translation]
The bill would empower the Tribunal to award special compensation of up to $20,000 in favour of an individual specifically identified as the subject or recipient of hate messages. The Tribunal may also order an author of hate messages to pay a penalty not exceeding $10,000.
[English]
Any person found guilty of an offence under the act, including obstructing the tribunal, reducing wages as a means of eliminating a discriminatory practice, obstructing an investigator, or retaliating or threatening retaliation against a person who files a complaint, would be subject to a maximum fine of $50,000.
The amendments would enable settlement to be filed in the Federal Court and enforced as orders of that court.
[Translation]
The limitation period for prosecuting offences under, or violation of the act would be increased from six months to one year to ensure that there would be sufficient time to investigate such offences.
[English]
In keeping with the independence of the Canadian Human Rights Commission, the amendments would permit the commission to present its annual and special reports directly to Parliament rather than following the present practice whereby these reports are filed through the Minister of Justice.
This is all I would like to say by way of introductory remarks. My colleague and I would be glad to answer any questions that you have.
Senator Jessiman: Clause 1 of the bill would allow persons who have difficulty in communicating to give evidence by any means which would render that evidence intelligible. It would allow a witness to give evidence as to the identity of an accused using any sensory method of identification such as voice or touch.
In 1991, the Canadian Disabilities Rights Council recommended that we have legislative amendments accommodating the communication needs of persons with disabilities. They also said that legislation should set out that the courts, not the person with the disability, bear the costs associated with this assistance.
Bill S-5 makes no reference to costs. I have read in the paper about the case of Eldridge v. British Columbia (Attorney General). That is just a recent case. Have you got the citation?
Mr. Berlin: Senator, there is no citation at this point. The decision was rendered on October 9, therefore, it is not yet reported.
Senator Jessiman: It may not be the one I read about then. Is it the case where the court said aid must be provided for the hearing-impaired?
Mr. Berlin: In that particular case, there were approximately three Deaf individuals who were seeking medical assistance. Under British Columbia statute, there was provision for interpretation services for Deaf individuals who were going to see their doctors. The Supreme Court of Canada did not find that statute contrary to the Charter but found that the manner in which it was administered in the jurisdiction was contrary because, indeed, the provinces chose not to provide interpretation services for Deaf patients or Deaf parents of children who were seeking medical assistance. Interpretation services were not available. The Supreme Court found this non-provision of interpretation services contrary to the Charter. In so finding, it said that the provision of this type of medical service tended to represent .0025 per cent of the overall medical budget of the Province of British Columbia. It found that since it was such a minimum amount, the province is not justified in withholding this type of service in that jurisdiction.
Senator Jessiman: The court held then, in effect, that the province that is administering the law has to provide the services?
Mr. Berlin: In this particular case, because the statute was provincial in nature, it found that the administration of it was also provincial. Similarly, both the Criminal Code and the Canada Evidence Act are administered by the jurisdictions, and, essentially, any costs associated with them are generally borne by the provincial jurisdictions.
Senator Jessiman: I thought that was quite a long time ago. Obviously, I have read about this case.
Was there not also an outcry by British Columbia or some of the other provinces that the ruling was of great concern because the costs involved could be substantial?
Mr. Berlin: I would agree with you on that. In fact, the Province of British Columbia, which contested the case, said that it would open the floodgates for all kinds of other concerns and place a huge avalanche of financial burdens on the province. The Supreme Court disagreed with that interpretation and said, first of all, it would restrict itself to these two pieces of legislation. As I previously related, because the increased cost to medical expenses of the province were minimal, they were to be of no concern.
Senator Jessiman: Do you mean these costs were minimal in relation to all costs?
Mr. Berlin: These costs were minimal in relation to the overall costs of medical services. It is our view, from what we understand as well, that any additional costs for interpreting services provided by the provinces would be so minimal in relation to the overall costs of administering criminal justice that, by way of analogy, the courts would accept that type of increased cost for these types of services.
Senator Jessiman: Even without this legislation, the courts have now held that the provinces have to provide interpreting services. Do you know whether this decision is being appealed?
Mr. Berlin: This decision was by the Supreme Court of Canada. That was the final decision. There will be no appeal from that.
By extrapolation, what you are suggesting may, in fact, be the case. One could extrapolate from the case of Eldridge that services in other areas need to be provided, but the court was clear in restricting itself, nevertheless, to the cases of deaf patients and deaf parents of children for medical services in this province. It was restricted to those two groups, although one could think that what you suggest may be the case.
Senator Jessiman: That is going to cause some real problems, as I understand it.
The first part deals with the Canada Evidence Act and clause 1 refers to section 6 of the act. In the first part, it is physical disability and, in the second part, it is mental disability.
When Senator Kinsella spoke to the Senate, he looked at section 16 of the Canada Evidence Act, which has to do with persons giving evidence. It only refers to mental capacity or incapacity. His question, which I now ask of you, is: Why was 16 not amended as well?
Mr. Berlin: It was a good question when posed by Senator Kinsella and it remains a good question now, posed by you. I will try to give you the answer.
We tried to distinguish between mental disability and other forms of disability in proposed section 6 for the following reasons: Section 16 of the Canada Evidence Act basically deals with the capacity to testify. The only disability for which capacity is challenged is mental disability, the capacity to give testimony. The individual must be able to understand the nature of an oath or a solemn affirmation. Basically, it is the understanding of the nature of the oath that deals with the capacity or the ability to understand.
It was our assessment that capacity does not relate to physical disability but only mental disability. We want to make it clear that physical disability is not a bar under Section 16. That is a capacity issue. However, when we amend section 6 of the Canada Evidence Act in order for the person to give testimony, basically, what we are saying is anybody who has a physical disability can use whatever communication assistance they need to give testimony.
The distinction, however, is that a person with a mental disability must be proven to have capacity first under the test set down by section 16. If they can meet the test of section 16, having the comprehension, having the ability to testify, then we go to proposed section 6 and say, what means can they use to testify.
In short, section 16 talks about the ability or the capacity to testify. Once a person with a disability has satisfied that test, we will still be talking about the means whereby that person can testify. We put them on an equal footing in proposed section 6.
Senator Kinsella: I would like to turn to the Human Rights Act. First of all, pages 6 and 7 of the bill deal with the defence available to a respondent to a complaint, that, for whatever reason, he or she was not able to accommodate the person with a disability and the person with a disability filed a complaint. The defence that is available is to argue that there is a bona fide limitation or a bona fide justification.
The model that you seem to be using is the model that was contained in the Ontario Human Rights Code. Did you look at other human rights codes when you were drafting this legislation?
Mr. Sharzer: Yes, we did.
Senator Kinsella: In particular, did you look at the New Brunswick Human Rights Code and the model that is present there?
Mr. Sharzer: Yes.
Senator Kinsella: The New Brunswick model provides this example: The Canadian National Railway, knowing that they would not be able to accommodate the needs of a person with a disability, would like to have predetermined the existence of a bona fide limitation because, under another section of the proposed amendment before us, the Governor in Council will have the authority to make regulations on this whole issue of what would constitute reasonable accommodation. Therefore, the rules, as it were, would be well known by the Human Rights Commission.
Under the New Brunswick law, Canadian National Railway would be able to go to the Human Rights Commission and say: Here is our situation. We cannot accommodate. We want to have the commission predetermine the existence of the bona fide justification. Why would you not adopt that model?
Consider the hundreds of thousands of dollars that would cost, and consider the anguish that the complainant has to go through. Had you adopted the New Brunswick model, that could all be saved.
Mr. Sharzer: As I understand your question, it relates not just to the duty of accommodation but to any of the obligations in the Human Rights Act, the question of being able to go to the commission to find out what they are thinking about it.
I do not purport to speak for the Human Rights Commission. I am aware that in the past, speaking from the perspective of government being regulated by the Human Rights Commission, we have been able to go to the commission and talk to it about its views on particular issues. There are a couple of members of the Human Rights Commission sitting behind me. You may at some point in your proceedings want to ask them how they would respond to requests for advice. We have not followed the path in these particular amendments of looking at some sort of legislated procedure for people to get an advisory opinion from the Human Rights Commission.
In the planned second phase or next phase of the review of the Act, we are hoping to look more closely at the overall role of the commission. I think that the question of what it does in relation to requests for advice is very much a matter of their overall role. It is something that we hope to address in the next phase.
Senator Kinsella: The bill will make a surgical amendment dealing with accommodation of needs of persons with disabilities, a principle that I fully embrace and endorse. The question is, how do you do that? We are being asked to approve proposed section 15 on page 7 of the bill which reads, in part:
(2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that the accommodation of the needs --
In the New Brunswick Human Rights Act, section 5(2) deals with accommodation. For example, in New Brunswick, if it is a local hotel, provincially regulated, the hotel has to provide services without discrimination because of disability. However, section 5(2) says that, notwithstanding that obligation, a limitation may be made if it is based upon a bona fide qualification as determined by the commission.
In New Brunswick you can go to the Human Rights Commission and say: I have an old hotel. Let us say it is the Lord Nelson Hotel, one of the older buildings. There is a desire to accommodate, if you can, but for engineering and architectural reasons, it cannot be done. These are all good people who are sensitive to and want to promote human rights and equality of opportunity. The bona fides are there. In New Brunswick, they have the opportunity of going to the commission and having such matters predetermined. The limitation can be determined by the commission ahead of time. No lawyers need be involved.
Senator Moore: It is possible to get a pre-ruling.
Senator Kinsella: Yes.
There are two models in anti-discrimination laws in Canada. There is the model that allows for reasonable limitations to be determined ahead of time. It seems to me that is really important, particularly in the issue of reasonable accommodation.
I am asking a technical question of the departmental officials. When you drafted that section, I assume you looked at the models in other anti-discrimination statutes. You have the Ontario model, which seems to be what you are drawing from in this section of the bill. It seems you did not look at the other model. I am asking you, from a technical standpoint, why you did not. Do you understand the other approach?
Mr. Sharzer: We did look at the other model but, again, not specifically in the context of the duty of accommodation because it is a question that comes up in any area of discrimination covered by the Human Rights Act.
There is a statute out west that provides the capacity to apply through a formal procedure for an advisory opinion. That procedure applies to all aspects of legislation. It is not something that specifically came up in the context of the duty of accommodation. We have thought about it in the past. It is something that really goes to what you think should be the overall role of the Human Rights Commission. Should the commission be more involved in making these sorts of determinations or should they be the ones, as they are now, simply, in a sense, operating as the door to the adjudicative procedure?
Ultimately, decisions are made by the tribunals and the courts on this issue, and I think there is an important issue there. As I say, I do not think it specifically pertains to this set of amendments. I think it is a more general question relating to the whole Human Rights Act. It is something that we want to address in the planned next phase of the act that the minister has mentioned.
Senator Kinsella: Clause 16 on page 9 reads:
The Act is amended by adding the following after section 16:
16.1 It is not a discriminatory practice to collect information relating to a prohibited ground of discrimination if the information is intended to be used in adopting or carrying out a special program, plan or arrangement under subsection 16(1).
Section 3.1 on page 1 of the act lists the prohibited grounds of discrimination. In that list is included sexual orientation. Sexual orientation is a prohibited ground of discrimination pursuant to section 3.1 of the act.
My question is: Is it the intent of this amendment to explicitly include all of those prohibited grounds, including sexual orientation, by that phrase, "a prohibitive ground of discrimination" as it applies to section 16?
Mr. Sharzer: This particular provision is referenced to section 16.1. As you know, when Parliament modified the act to add sexual orientation, they did not add it to section 16.1. With respect to this particular provision, our view is this is a codification of the law. If people collect information that relates to a particular ground enumerated in section 3 of the act, if it is done so without discriminatory purpose, and if it meets the justification clauses in the act, then there will be no problem. This is a clarification. I think that the law is already in existence on that particular point.
Senator Kinsella: If we pass proposed section 16.1, does that mean that it would not be a discriminatory practice to carry out special programs or arrangements with regard to provisions designed to prevent, eliminate or reduce disadvantages that are suffered by any group of individuals when those disadvantages would be based on sexual orientation?
Mr. Sharzer: If the particular program met the requirements of the existing defences in the act, yes, it would not be discriminatory. If the information is not collected and not carried out for discriminatory purposes, then I think it is inherent in the concept of discrimination as interpreted by the Supreme Court that this would not be a discriminatory act.
Senator Kinsella: Would the current section 16.1 of the act have sexual orientation in the list of prohibited grounds?
Mr. Sharzer: It is not in the list, no. It is not there specifically.
Senator Kinsella: Would the amendment proposed in Bill S-5 put it in there?
Mr. Sharzer: It does not change section 16.1. It simply makes reference to section 16.1.
Senator Kinsella: If we wanted to make sure it is there, we would have to amend this to put sexual orientation in section 16.1 of the act.
Mr. Sharzer: If you wanted to ensure that sexual orientation was in section 16.1, you would have to make that amendment. If your concern is with respect to the collection of information to further the social programs, our view is that this is simply a codification of existing law that would apply equally to any ground of discrimination where the information is collected for a non-discriminatory purpose.
Senator Kinsella: My final question on this round is with regard to the clause of the bill dealing with the new Canadian Human Rights Tribunal and the qualifications that the statute identifies for membership on that tribunal.
Senator Moore: Where is that?
Senator Kinsella: It is on page 18 of the bill.
Mr. Sharzer: Page 12.
Senator Kinsella: It is also on page 12. It appears twice.
Mr. Sharzer: It is there if you miss the point the first time.
Senator Kinsella: On page 12, proposed section 48.1(2) states:
Persons appointed as members of the Tribunal must have experience, expertise and interest in, and sensitivity to, human rights.
I think we all accept that.
Many members of the bar are specialists in maritime law, family law or corporate law. The fact of this right of passage of entrance into the bar does not immediately, like a magic wand, mean they will meet the criteria of proposed subparagraph (2).
Senator Gigantès: What kind of logic is this? Are you suggesting that no members of the bar are sensitive to human rights issues?
Senator Kinsella: No, on the contrary.
Senator Nolin: I hope not.
Senator Gigantès: You are reversing the logic.
Senator Cogger: Are not proposed subparagraphs (2) and (3) to be read in conjunction? In other words, what you are looking for are members of the bar who have experience, expertise and interest in, and sensitivity to, human rights. They are not mutually exclusive.
Senator Kinsella: It is a sensitive matter. In other kinds of administrative tribunals, like the industrial relation boards and arbitration boards, some of our finest arbitrators are sensitive to labour relations but are not members of the bar. They would be excluded if you had that kind of provision in the Labour Relations Act. Why do you have it in here?
Mr. Sharzer: The first point I would make is that there are fifteen members on the tribunal. Eleven of the fifteen do not have to be qualified for the bar as lawyers, so it comes down to four members. I would say the rationale is that, after many years' experience with tribunal hearings, the proceedings have become increasingly legalistic. Many more complex issues of law, questions of evidence and procedure, are coming before these tribunals and becoming very contentious.
Another aspect is that you will also see challenges to other federal legislation under the Human Rights Act, the same sorts of challenges you would see under the Charter in the courts. Taking all these things into consideration, the feeling was that it would be helpful to have presiding over these cases people who have qualified not just as members of the bar, but who meet the same qualifications for appointment to the bench. Proceedings become more court-like. There is a more court-like atmosphere dealing with many issues similar to those going before the courts.
The hope is to have someone with legal experience. This is balanced, of course, by the fact that eleven of the 15 members will not have to be qualified as lawyers. They will sit together with the legal members on these panels and, in many cases, will outnumber perhaps the legal members, with three members on a panel, for example.
Senator Doyle: I have a question for Mr. Sharzer on his statement that the bill would now allow human rights complaints to be filed regarding the provision of goods or services where there is no identifiable victim. I would like him to explain that in a layman's way.
Mr. Sharzer: I will try, even though I am a lawyer.
Senator Doyle: I will be the layman.
Mr. Sharzer: This parallels the employment provisions. The same law already exists in the act with respect to the employment provisions. Where there is no identifiable victim with respect to an employment matter, complaints can be brought forward.
This is intended to parallel what we already have in the act in the employment area to deal with situations where we do not have someone who has come forward, but the commission has identified or has become aware of a discriminatory practice.
From time to time, the commission has conducted surveys and has visited various facilities to see whether they are accessible. If they become aware of a service that is being operated in a discriminatory manner or a policy that is discriminatory, this will put them in a position where they do not have to wait until an individual comes along and files a complaint. They can address it right away. The idea is that rather than have the system function on a reactive basis, depending on the particular individual who comes along, the commission should be in a position to address this on a more systemic basis and perhaps a more proactive basis.
Senator Doyle: I am now having more trouble than I was. Surely you are not suggesting that members of the commission can be seized with information that is not before the body considering the offence. They cannot say, "We know all these watch makers are doing wrong by people with a particular disability, and, therefore, we should bring that to bear even though there may be no identifiable person in this situation."
Mr. Sharzer: If I understand the question, there may not be an identifiable person, but there may yet be victims of that particular policy or practice who have not come forward. If it is not possible to identify specific individuals, and there is a discriminatory practice or policy, the idea is that the law should not condone that. There must be some way of addressing that, even though no one has stepped forward to correct that particular policy or practice.
The commission currently has the power to initiate complaints of discrimination on reasonable grounds.
The Chair: To follow through on Senator Doyle's remarks, are you saying that if the commission itself identifies a potential class of victim, then it can step in?
Mr. Sharzer: Yes, that is certainly part of it. Where it identifies a practice or policy that is discriminatory, presumably it will have also identified a class of people who will be disadvantaged by that policy or practice. It is on that basis and that basis only that the commission would step in to initiate a complaint.
The Chair: This is the sort of pre-judgment, is it not, that Senator Kinsella was talking about in the New Brunswick Bill of Rights?
Mr. Sharzer: If I understood what Senator Kinsella was saying, he was talking about individuals from outside the commission applying for an advisory opinion. Rather, this is the commission perhaps becoming aware of a particular situation.
Senator Doyle: The bill allows the filing of human rights complaints, but who is making the complaints here? I understand that it is a member of the commission itself.
Mr. Sharzer: The commission can do so. The act provides that any person having reasonable grounds to believe that a discriminatory practice has occurred can file a complaint.
Senator Doyle: Can they do that against my company or this chairman for the way in which this committee is functioning?
Mr. Sharzer: That is right, as they can in the employment area now. This bill would extend it to the services area as well.
Senator Cogger: I am in accord with the Chair here. Would that not tie in with Senator Kinsella's concern that the "pre-emptive strike", the pre-ruling or advance ruling would be allowed only on the side of victim and not on the side of the party having to provide the service?
What I think Senator Kinsella was referring to is another situation where there is no identifiable victim or anything because of a lack of provision of service, where the potential provider would then run to the commission and say, "Here is a hypothetical situation; can I obtain a ruling on it?"
Seeing as you seem to have met one side of the equation, would it not be fairer, then, to meet the other side, as Senator Kinsella was suggesting?
Mr. Sharzer: Perhaps I did not give the complete picture before. Again, I would encourage you, if you do have members of the Human Rights Commission here before you, to ask them how they function. The law is one thing, but there is also the practical application of that law by the commission. I am sure the commission will tell you that a very small percentage of the inquiries it receives are turned into complaints. A further very small percentage of the complaints that it receives ever end up going to a tribunal. The commission makes efforts toward settling these matters before they get too far along.
What happens in practice, although I would not describe it as an advisory opinion, is that people sit down with the Human Rights Commission and work out where they should be on this and how the law applies. For example, what does the commission think they should be doing in getting these matters resolved? The commission will say there is no need to take further proceedings.
It is not an advisory opinion, per se, but it has the same net practical effect of resolving matters before they would ever get thrown into the adjudicative process, which I think is the point of the law.
Senator Cogger: Are you then saying that you meet the concerns expressed by Senator Kinsella in the fact that any interested party can file? The "trick" would be to file a complaint. If I were the owner of a hotel, I could file a complaint because there is no ramp. Then, in the process of studying, I would end up having an advance ruling in the same fashion.
Mr. Sharzer: When I wear my other hat, which is as a legal advisor to the government, I recommend to my clients to get in touch with the Human Rights Commission to find out where they stand and what are their policies. This is the practical approach. The commission has written policies in a number of areas that one can consult, plus it is possible to consult with the commission for guidance on what direction to take on a particular issue.
Senator Jessiman: Let us get back to the cost again. You have told us about the cost before. Now I want to talk about the cost surrounding the duty to provide accommodation and what is really meant by it.
Some people think that by having this in the law you are creating two classes of human rights claimants: those we can afford to treat equally and those we cannot. On the other hand, employers and service providers are concerned about a very restrictive interpretation of undue hardship. They would like a more realistic interpretation of costs to take into account the impact on business productivity and efficiency. Have these concerns been addressed?
Mr. Sharzer: I think they have been addressed by the law. What we have here is something that attempts to strike a balance between the needs of the various groups and individuals protected by the law, and the requirements of employers and service providers as well.
If you look at these particular provisions, there is a great deal of similarity between them and the Ontario Human Rights Code. If you look at the tribunal decisions on the Human Rights Code, they all harken back to Supreme Court of Canada decisions. As you know, the Canadian Human Rights Act, exclusive of these amendments, already requires employers and service providers to accommodate individuals protected by the law. Really, it harkens back to these decisions.
Several decisions of the Supreme Court of Canada have outlined the kinds of criteria that will be applied in these cases. It is really an attempt to balance the interests of employers and to balance the needs of individuals and groups. You see that in the standard of accommodation that has been built into the law. You see it particularly in the factor of cost, which is the crucial factor there.
Senator Jessiman: Explain clause 10 to us, the one dealing with the Canadian Forces. Does it essentially exempt the forces from ever having to comply with a duty to accommodate?
Mr. Sharzer: No, it does not.
Senator Jessiman: Please explain the proposed section.
Mr. Sharzer: The reference is to the principle of universality of service, something which has been taken into account. There have been a number of Federal Court decisions. It does not exempt the Canadian Forces.
The principle of universality of service essentially refers to the requirement that all members of the regular forces be able to go into combat. In relation to that requirement, there are a number of minimum medical standards. Really, that is what this has reference to.
If you are talking about other standards that the Canadian Forces have that do not relate to the principle of universality of service, then the duty of accommodation applies.
This is an attempt to recognize that particular standard, a standard that has been supported by the Federal Court of Appeal in a couple of cases in which the Supreme Court of Canada has denied leave to appeal. Basically, the unique nature of the Canadian Forces is understood in terms of going into combat and being ready to go into combat.
Senator Kinsella: The phrase "adverse effect discrimination" appears on page 7 of the bill in proposed subparagraph 8. Could you provide members of the committee with a definition of "direct discrimination" and a definition of "adverse effect discrimination"?
Mr. Sharzer: Yes. The terms harken back to decisions of the Supreme Court of Canada recognizing the two forms of discrimination. A typical example of direct discrimination would be intentional discrimination, saying that a person of a particular faith or background is not eligible to join a club. It refers to something that is intentional or something that is clear on the face of the policy or practice.
Adverse effect discrimination would be where you have a policy or rule that does not have on its face a distinction against a particular group. It does not intend to discriminate, but it nonetheless has the effect of excluding certain groups.
One of the examples most typically given in the literature is the height and weight requirements for police forces. These requirements were found at one time to have an adverse effect on members of visible minorities and on women. The courts have suggested that this constitutes what we call a prima facie case of adverse effect discrimination.
The next question is: Are they justifiable or not? Defences are available in those circumstances.
Senator Kinsella: If this bill passes, we will have reference to those two forms of discrimination. Do you think it would be advantageous to have a definition of discrimination prior to clause 5, which begins to define discriminatory practices, to make sure that all of those discriminatory practices are both of the direct discrimination type and adverse effect discrimination type? I put the question in the positive.
To put the question in the negative, could having that distinction made there cause problems in one of the other discriminatory practices clauses where someone would say, "In the bill, you make a distinction later on." It may be an employment case, but it is an adverse effect case because it is not defined there. Then the adverse effect discrimination employment would not be covered.
Mr. Sharzer: The result of this particular provision is to eliminate the distinction. That is the point. We considered this in terms of having a definition, but the cases are clear on the application of the act to direct discrimination and to the adverse effect discrimination. It has been set out so many times by the Supreme Court of Canada that we thought it was not necessary to address. This particular provision was key because of the Supreme Court of Canada ruling in the Bhinder case that the duty of accommodation does not apply to direct discrimination as a result of the particularities of the wording of the Human Rights Act. This is meant to overcome that particular distinction.
Senator Kinsella: The anti-retaliation clause is found at page 8 of the bill, clause 14. I am glad to see the anti-retaliation clause in the bill because the implementation of the Human Rights Act is all based upon a complaint process. If people are intimidated from filing a complaint, then the mechanism does not work, notwithstanding the fact that the commission itself can initiate a complaint.
My next question might be more appropriately put to people from the commission. I was curious as to whether that has been a big problem in the administration of the Canadian Human Rights Act. Why are they asking to put that in now?
I can add, Madam Chair, that it is in most of the provincial statutes.
Mr. Sharzer: You might want to address that question to members of the commission. I am prepared to answer it to the extent that I can.
It has been a bit of a problem. We have experienced circumstances where, for example, the police force is brought in, and they may not necessarily have as much experience as does the Human Rights Commission in dealing with cases of discrimination. They become involved in looking at fairly complex cases of discrimination. If we have a case of ostensible discrimination, then perhaps the employer has taken some disciplinary measures. The question arises as to whether that is retaliation or justifiable disciplinary measures. It is sometimes difficult to separate these out.
When the RCMP come to look at that, the question arises as to whether they were justified in taking whatever decision they took originally that led to the complaint of discrimination.
In the end, where you have a clear case of retaliation, a clear case of intimidation, that is something that can be dealt with under the offence provisions. Where you have a more complex setting, this puts the commission in a much better position to deal with it through the complaint procedures.
Also, the advantage of this provision versus the offence provisions is that the offence provisions provide for fines. They are very similar to criminal proceedings. This bill will enable the tribunals to order that someone receive compensation or be reinstated to a job. For example, if the intimidation or retaliation had been to fire the individual, the offence provisions did not provide for reinstatement, whereas this will allow for that to be done.
Senator Kinsella: In your opinion, do these proposed amendments have an impact on the proposition that human rights legislation is corrective as opposed to punitive?
Mr. Sharzer: I agree with you that the primary purpose of this human rights legislation is remedial. It is also a deterrent, too, and should act as a deterrent to people.
Senator Kinsella: By having a permanent human rights tribunal now, is this creating more bureaucratization of human rights or less?
Mr. Sharzer: I would like to think of it as less because we have had some inconsistencies in the jurisprudence by virtue of having so many people out there. My impression is that people are virtually unanimous in support of having a smaller, dedicated group. Rather than the result depending on which particular tribunal you end up before, we will have a core group of people, more consistent jurisprudence, more expertise, and an ability to move more quickly and more efficiently through the cases.
Senator Kinsella: With respect to the process dealing with problems that might arise with a member of the tribunal who then becomes subject to an inquiry, on page 14 of the bill, proposed subparagraph 48.3(7) in particular, dealing with confidentiality of the inquiry, that principle of secrecy appears somewhere else.
Mr. Sharzer: This is dealing with the actual Human Rights Tribunal hearings themselves as opposed to an inquiry into the conduct of a member.
Senator Kinsella: In both cases, as a general principle, our system ought to be open. Three parties have an interest in a complaint that a tribunal might be dealing with: the complainant, the respondent to a complaint, and the Human Rights Commission. If a problem comes up relating to the propriety of conduct of a member of the tribunal, at least those three parties would have a direct interest in that hearing and, therefore, ought not to be excluded. The way it is written here, would they be excluded?
Mr. Sharzer: My understanding of this provision is that it is not designed to exclude people. I suppose non-publication would be one dimension.
I will give an example of what we had in mind, an example of a case that happened once before. There was a sexual harassment case, the name of which I cannot remember now. It was quite a serious case of, ultimately, sexual assault. The testimony was provided in camera to spare the witness -- the victim of this harassment -- from testifying in public. Ultimately, the record of those proceedings was maintained in a confidential fashion so that it was available upon appeal, but it would not be disclosed to the public.
I agree that the principle should be that hearings remain open. This proposed subparagraph is designed for those unusual, exceptional circumstances where, for example, if you need to protect the victim of sexual harassment, that will be available to the judge or a tribunal.
Senator Gigantès: On the same issue, proposed subparagraph 48.3(7) states:
(a) there is a real and substantial risk that matters involving public security will be disclosed;
Could you give me an example of this, please?
Mr. Sharzer: I am more well versed with respect to actual Human Rights Tribunal proceedings than with disciplinary measures with respect to members of the tribunal. If, for example, you have someone who was employed at the Canadian Security Intelligence Service, he or she could file a complaint, and certain matters relating to national security might be relevant to examining how this person was dealt with in an employment situation.
I think the idea is that you then retain the capacity to ensure that those matters relating to national security are not disclosed. That is the kind of issue that this has in mind.
Senator Gigantès: What protection remains for the person who is filing the complaint?
Mr. Sharzer: None of this evidence will be excluded from the tribunal, necessarily. The provisions that we see here give the power to the tribunal to exclude others, but the tribunal will presumably have the evidence before them. It ensures that they can get the information by assuring, I suppose, the intelligence service that the information it is providing will not be disclosed to the public, but it will be available for the trial of this particular case.
Senator Gigantès: The act establishing CSIS set up for the first time some appeal provisions. As well, a board of outsiders forms a second level of appeal. Does this enlarge it? Can the Human Rights Tribunal go beyond that?
Mr. Sharzer: I do not think this really enlarges it. I think what it contemplates is that people can go quite independently of the CSIS Act, file a complaint under the Human Rights Act, and that another tribunal is seized of the matter because it happens to be a human rights issue.
What this tries to ensure is that we are not allowing a gap to develop under the Human Rights Act simply because one of these issues is coming before the tribunal. We give the capacity to the tribunal also to ensure that this evidence can come forth without endangering public security.
Senator Gigantès: You have enlarged it. It did not exist for them before. They could go to the internal appeal mechanisms. What you are telling me is now a member of CSIS can go beyond the internal mechanisms and go to the Human Rights Tribunal.
Mr. Sharzer: In fact, if you look at the act, there are in place provisions that contemplate that situation. People have always been able to file complaints in employment matters. Anyone who is employed by a federally regulated body, whether it is the private or public sector, including CSIS, has always been able to file a complaint of discrimination under the Human Rights Act and have that matter determined through the commission or through the tribunals.
There are provisions that deal with the relationship of Human Rights Commission investigations with the CSIS process. Nothing deals with that process except these sorts of provisions when you get to the tribunal and to the adjudicative process, but this will provide for that as well.
Senator Gigantès: Can the said member of CSIS, having failed in his appeals both with the internal mechanism of CSIS and the Human Rights Tribunal, then go to the Federal Court?
Mr. Sharzer: The first step in the process under the Human Rights Act would be to go to the commission. Then the next step would be the tribunal. Ultimately, there is a judicial review in the Federal Court.
Senator Watt: I wish to raise a general question. I have been following your presentation, trying to satisfy myself as to how an instrument being put in place such as a tribunal can be used as an avenue for a certain class of people. I am speaking about the aboriginal people, who might have different needs and an understanding altogether different from the existing mainstream of society.
I have no questions about the establishment of the Canadian Human Rights Tribunal; neither do I have questions in regard to the qualification of the appointment of the members.
When it gets down to the point of regional representation, I wonder what accommodations, if any, have been made for aboriginal peoples. Are they entirely left out? We all live in Canada, and we need one system to examine whether there is discrimination in this country.
I am concerned with two things. There is a certain amount of discrimination within our own people, too, without taking into consideration what is happening outside. There is also discrimination outside.
I am thinking of a case where an individual person feels that he is being discriminated against, not because of sexual orientation or any wrongdoing, but based on the practice of that individual. We already have the case of an Indian person who had his nets out and was fishing. There was a ruling from the Supreme Court of Canada on that some time ago.
Can you give me a general answer on that so I can at least understand what is happening in that particular sector? Although I have looked through the bill, at this point I do not have an appreciation that this aspect is being taken into consideration.
Mr. Sharzer: I would say two things in response. First, you were talking about the criteria for appointment. Of course, as a public servant, I am not responsible for the appointment process. However, I have heard expressed through the minister's office that the commitment is to ensure that we have representation from all of our society on the commission on the tribunal. That is a definite commitment.
With respect to the way in which the law is administered vis-à-vis different communities, I would again encourage you to speak to the Human Rights Commission. I knew Mr. Max Yalden when he was chief of the Human Rights Commission, and he had a strong commitment in this area. I am sure Michelle Falardeau-Ramsay, as well, has a very strong commitment to ensure that the law as administered is sensitive to the needs of the aboriginal people. That is clear if you look at the record of their work in this area.
Again, that is the sort of thing that you may want to ask members of the Human Rights Commission if they come before the committee.
Senator Watt: An additional area to be taken into consideration is that aboriginal rights are not defined at this point in time. I believe that reaching the point of that definition is probably still quite a long way down the road. Nevertheless, the rights exist.
There is an attempt at a movement to define what those rights are, but there is still a long way to go. Until the day comes when we exhaust defining all those rights and trying to place them under this tribunal or any other, it still leaves us out in the dark.
If, finally, we decide to follow the American route, the so-called melting pot, then we do not have to worry about what I am raising.
The Chair: I can assure you, Senator Watt, that we will have the human rights people appear before us. If they have not already applied to appear before us, they will certainly be invited to appear. I would remark, though, that I do not really consider being an aboriginal person a disability.
Senator Watt: It depends on how you interpret "disability". It could be interpreted in such a way that if a person cannot function within the main society, then he might be considered disabled. Who knows? We do not know that.
The Chair: That is a good point.
I have one final question for the very patient people who have been with us this morning. You mentioned the qualifications of being called to the bench. I believe that to be named as a judge and to be called to the bench, a lawyer must have served for 10 years in the legal profession. Is there a precedent for sticking to this particular definition of qualification in any other legislation other than being called to the bench?
Mr. Sharzer: It has been a while since I looked at it. I believe that there is a precedent or two for it. When we looked at the kinds of cases coming before the tribunals, we could not find any other real analogies. It seemed to be a unique tribunal, for example, in being able to challenge other legislation under the Human Rights Act in the way that you would challenge other legislation under the Charter. It is an innovative approach, but it takes into account the special circumstances of the legislation.
I will undertake to check again and to see what precedents we were able to find, and I will provide them to the committee.
The Chair: Thank you for your appearance here this morning.
The committee adjourned.