Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 3 - Evidence
OTTAWA, Wednesday, November 5, 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 4:30 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we are here for consideration of Bill S-5. We have two witnesses from the Canadian Human Rights Commission: Ms Michelle Falardeau-Ramsay, Chief Commissioner, and Mr. William Pentney, General Counsel, Legal Services Branch.
Our usual approach is to have the witnesses make whatever kind of presentation they wish; then we open it up to members of the committee for questions.
[Translation]
Ms Michelle Falardeau-Ramsay, Q.C., Chief Commissioner, Canadian Human Rights Commission: I appreciate the opportunity you have given me to comment on Bill S-5 on behalf of the Canadian Human Rights Commission. We understand that the committee members have received some background material about the Canadian Human Rights Act and the work of the Commission. We hope this material will be useful to you as you review this legislation.
The Commission welcomes the introduction of this bill, which contains amendments to the Canadian Human Rights Act which we believe are long overdue. While the discussion around the bill has largely focussed on persons with disabilities, the impact of these amendments is much wider and will be of importance to all Canadians.
We also support the proposed amendments to the Canada Evidence Act and the Criminal Code which deal with the accommodation of persons with disabilities in the judicial and criminal justice systems. However, these issues do not fall within the Commission's expertise and I will not comment on them in detail.
Instead, I would like to focus on some of the key aspects of the bill as they relate to the Canadian Human Rights Act.
[English]
First and foremost, I should like to mention the bill's provisions with regard to the accommodation of special needs short of undue hardship. This is something the commission has urged for many years, and it would bring the act into accord with the jurisprudence on the issue -- most recently, the Supreme Court's decision in the Eldridge case -- as well as with provincial legislation.
Because the court has repeatedly upheld the duty of employers and, more recently, service providers to accommodate special needs, the amendment is not really a major departure from the current situation. But not everyone is familiar with the jurisprudence, and the amendment makes it clear that unless undue hardship can be shown, accommodation is the rule and not the exception.
While this amendment would have an impact on other groups -- religious minorities, for example -- it would primarily affect persons with disabilities; but, because all of us are likely to be touched by disability at some time in our lives, the question is important to all Canadians.
Last May, our commission brought together representatives of disability groups from across the country. They made it clear that accommodation is central to their right to be treated as equals with the rest of society. In the area of employment, it can mean the difference between being a productive member of the workforce and being forever on the margins.
Moreover, studies have shown that the cost of accommodating most disabilities is modest. A study by the U.S. President's Council on Employment of People with Disabilities showed that one-fifth of all employee accommodations carry no cost at all, and that just over half can be accomplished for under $500 U.S. There is no reason to believe that the situation would be any different here in Canada. Even the costs associated with making buildings accessible can be dealt with if properly planned and phased in. And in any case, the only alternative to accommodation is to deny persons with disabilities access to jobs and services that are available to everyone else.
We also believe that the language of the bill with regard to undue hardship is a workable balance between the interests of persons with disabilities and the needs of employers and service providers.
While the accommodation amendment is the most important element of this bill from the commission's perspective, there are other provisions that I should like to mention.
The provision that would see the commission reporting directly to Parliament is an important symbol of the commission's independence. Even though no minister of justice has ever interfered with the commission's work, direct reporting would make it clear that the commission is independent of the government of the day, a principle that has been enshrined in the international norms regarding statutory human rights agencies.
The amendment that would create a permanent tribunal to replace the current part-time tribunal panel has an even more practical significance. Needless to say, we cannot speak on behalf of the tribunal, because it is a completely separate entity from the commission and the committee may want to ask the tribunal representatives to comment on this issue themselves.
However, in our view, the creation of a permanent tribunal would make the tribunal process both more efficient and more effective. Under the current system, the fact that tribunal members are part-time has resulted in scheduling delays and in a longer lag time between the conclusion of hearings and the writing of decisions. Moreover, a permanent tribunal would give tribunal members a greater opportunity to develop the kind of in-depth human rights expertise they need to deal with the complex cases that come before them.
[Translation]
We are also strongly in favour of the amendment which would increase the amount a tribunal can award in damages from $5,000 to $20,000. Victims of discrimination, and in particular those who have been subject to sexual or racial harassment, may suffer considerably as a result of their experience. The increased limit not only brings the awards closer into line with the actual wrong that has been suffered, but it also indicates the importance that Parliament puts on deterring discrimination.
Deterrence is also an important consideration in the provisions of the bill which strengthen section 13 of the act dealing with the dissemination of propaganda. Under the existing legislation, a tribunal may order an organization or individual to stop disseminating hate messages, but it may not impose any penalty. There is also no redress for individuals who have been specifically named in hate messages. The amendments, which would allow the tribunal to impose penalties of up to $10,000 in hate propaganda cases, as well as provide compensation for named individuals, would help deter those who now use telephone lines or the Internet to disseminate these kinds of messages. As I have already mentioned with regard to damage awards, it would show that Parliament is serious about enforcing the provisions of section 13.
While we believe these amendments significantly improve the protections afforded by the Canadian Human Rights Act, we know there are other improvements that could be made. At the same time, we believe the amendments in Bill S-5 are important and will provide a starting point for the broader review of the act. These amendments will help the Commission in a very practical way, and we would not want them to be delayed because of other outstanding issues.
We were, however, pleased with the minister's announcement at the time this bill was introduced that a further review of the Act would be forthcoming. We are looking forward to participating in this review, and to a public discussion of some of the broader issues facing human rights protection in the future.
[English]
I would be happy to respond to the committee members' questions.
Senator Gigantès: It is nice to meet you again.
The bankers are harassing me over this. They object.
Senator Cogger: They are what, harassing you?
Senator Gigantès: Harassing me. There are too many phone calls. They say the rules of access will prove difficult. They say there are buildings where it is not possible, and why should this be put upon them. They believe they have made every possible answer. What do I answer?
Ms Falardeau-Ramsay: You could give them the example of Canada Post. Their situation is, in some ways, along the same lines where there are heritage buildings, but there are also new buildings being built.
We were able to arrive at a settlement with Canada Post whereby, based on a ten-year plan, their outlets all across Canada will be made accessible.
What is needed is a commitment. We are not an organization that expects every building in this country to be accessible tomorrow. We understand that there are other considerations, and, among them, cost has to be taken into account.
However, we feel that these things should be done. It is important to set a plan with specific dates that are agreed upon between the parties. It has to be not only concrete, but feasible, so that, in fact, it will be done. Then at some point in time -- and it might be in two years, five years, ten years, depending on what has to be accomplished -- accessibility will be available for people with disabilities.
[Translation]
Senator Nolin: For instance, when you are presented with an argument about the building's architecture, unless technology were to change radically, the architecture will certainly not be changed in ten years. How then do you go about making arrangements for a ten-year period?
Ms Falardeau-Ramsay: In most cases, it is possible to build a ramp or install an elevator for persons with disabilities. However, in some instances, this is truly impossible. When this happens, we ensure that the person has access to services at a location easily accessible from a geographic standpoint.
Senator Nolin: Do you mean at another branch?
Ms Falardeau-Ramsay: Ideally, of course, all services should be adapted. However, each case is dealt with individually and it is very difficult to make pronouncements --
Senator Nolin: Ex cathedra.
Ms Falardeau-Ramsay: Exactly. When we are confronted with a particular case, we look at the overall picture to see what is feasible and what is not and to determine how we can come to some kind of arrangement.
Senator Nolin: Judging from your presentation, I take it that you are pleased with this bill.
Ms Falardeau-Ramsay: Yes.
Senator Nolin: It gives you more room to manoeuvre when it comes to providing your services. Is that not correct?
Ms Falardeau-Ramsay: In some ways, yes. However, regarding this particular matter, all the bill does, in my view, is codify existing jurisprudence. Take, for example, a government clerk or a bank teller who wishes to know which rules apply. This person is certainly not going to go to the Supreme Court library to look up rulings on reasonable accommodation. However, if legislation is in place, they can refer directly to it because everything is written down in black and white. The bill does not really change the way in which the commission operates. All it does is codify jurisprudence.
Senator Nolin: You stated that there are other improvements that could be made to this bill. Is that right?
Ms Falardeau-Ramsay: Clearly, there is room for improvement.
Senator Nolin: There is always room to improve legislation, to the point where no further improvements can be made. Are there some changes that you would like to suggest today, but hesitate to do so for fear of delaying the passage of this bill?
Ms Falardeau: Yes. The field of human rights must keep pace with societal changes.
Senator Nolin: We heard that yesterday in the Supreme Court.
Ms Falardeau-Ramsay: Indeed. Moreover, our general counsel presented a very good case to the Supreme Court. Since our Human Rights Act has not been overhauled since its adoption in 1977, such a review would be appropriate to mark our 20th anniversary next year.
Senator Losier-Cool: As a member of the Special Senate Committee on Post-secondary Education, I had the opportunity to visit several universities across Canada. In Halifax, Nova Scotia, there are some historical buildings that are not accessible to students with disabilities. University administration officials told us that they could not make too many changes without altering the buildings' historical features. We also received a number of requests from disabled students and the committee is now drawing up recommendations. We all agree that the heritage and beauty of buildings must be preserved, but access should not be denied to these students either. What would you recommend?
Ms Falardeau-Ramsay: I would recommend that the university consult a good architect and an historian with a view to setting up an interdisciplinary committee to examine options for making the building accessible while preserving its heritage features. One of our commissioners studied law at Dalhousie University and encountered problems of this nature. The Supreme Court building, as well as the Parliament buildings, present certain accessibility problems. These types of problems are quite widespread and striking a committee to look into them would certainly bring about some resolution.
[English]
Senator Kinsella: In light of Mr. Pentney's fine presentation before the court, perhaps I could raise my first question around section 16 and the need for clarification as to whether or not sexual orientation is to be understood as being included here.
Mr. William Pentney, General Counsel, Legal Services Branch: As the amendment now is worded, section 16 would not include sexual orientation. It may be that, after the decision of the Supreme Court of Canada is released, that level of uniformity will be required in all human rights laws across the country; but perhaps not. We will have to wait to see the scope of the reasoning of the court.
It is not clear, based on the argument yesterday, whether all of the exceptions or special provisions will have to cover sexual orientation or whether it would only extend to what I would call the basic protections against employment or service discrimination.
Senator Kinsella: What is the preference of the Canadian Human Rights Commission, as we speak this evening? Should that or should that not be included in section 16, in your opinion, as a Human Rights Commission?
Ms Falardeau-Ramsay: We would have nothing against the fact that it should be included. I think it would be a very good idea. A survey is being conducted on the situation of gays and lesbians in Canada. It would be very useful if this could be used in a program of some kind that would be under section 16 of our legislation.
Senator Kinsella: Indeed, that is consistent with your testimony before this committee a couple of years ago, when we were examining the then Bill S-5, which was passed unanimously in the Senate. It was overtaken by a government bill, introduced by the government of the House of Commons. It came to us, and we passed it expeditiously.
Madam Chairman, our position is on the record as a chamber. Collectively, we have joined the view of the Human Rights Commission that section 16 ought to be inclusive of sexual orientation.
We are dealing with this bill first. It is a bill that the government has initiated in the Senate. Therefore, if we are to amend it, it will be easier for us to amend it here. Such an amendment would be consistent with what the commission would want and is on the record as wanting. Then the bill would go to the House of Commons, and the House of Commons would have the bill already passed by one of the chambers.
Do you think we should go that way?
Ms Falardeau-Ramsay: You are the committee that is supposed to make those decisions.
Senator Kinsella: I have a second matter dealing with the issue of reasonable accommodation and getting into the technicality of the matter. We had the opportunity to explore this issue with your colleagues from the Department of Justice. It relates to the determination of a bona fide justification of the inability to provide reasonable accommodation.
As you know, in some jurisdictions, such as my own, New Brunswick, the existence or the non-existence of a bona fide limitation is determined by the commission. In this particular area, a reasonable accommodation related to examples that were given by my colleagues who spoke just a moment ago about old buildings and things such as that. Having the Human Rights Commission in the position of being able to predetermine, as they do in New Brunswick, the existence or non-existence of a bona fide justification would be a real service that the Canadian Human Rights Commission would be providing to the people who provide services or accommodations, facilities, employment, whatever, and have to meet the obligation of providing reasonable accommodation for persons with disabilities. It would be a real service by the commission to these people if the commission were able to work with them as they sought to have a complaint determined ahead of time -- and when I say "ahead of time," I mean before a complaint is filed. As we all know, this whole process is complaint driven.
What would you say to having what is contained here, plus providing to Canadians that service of the commission's being able to predetermine?
Ms Falardeau-Ramsay: I would like to refer you to sections 17 and 18 of the Canadian Human Rights Act. Those sections give us the possibility to approve in advance a plan that would be proposed by a person or persons to implement measures for adapting any services, facilities, premises, equipment or operations to meet the needs of persons arising from a disability. That covers pretty much that type of intervention.
We are in constant consultation with most of our respondents. That is why we are able to establish long-term plans with them as far as dealing with accessibility issues. That is probably what you had in mind, Senator Kinsella.
Senator Kinsella: Is it the experience of the commission, in using section 17, that it is for that kind of thing, or was section 17 being used for affirmative action activities?
Ms Falardeau-Ramsay: No, because section 17 deals specifically with disability. It is, in fact, a provision that has not been used very often because of that constant consultation that we have, and also because in those particular instances, due to the rules of natural justice, we would have to have a hearing so that all the parties who are concerned with the matter would have to be called in front of the commission to let us know their views of the situation. That can become a complicated structure.
Any structure that would deal with the pre-approval of bona fide justification or bona fide operation or requirement would have to go through that same process so that it would allow all the stakeholders in the area to have their say. Then we would have to make a decision as to whether or not this would be applicable. I am not sure if it would make the whole process heavier.
Now we have informal consultations going on. Up to this point in time that has worked very well.
Senator Kinsella: If Canadian National came to the Human Rights Commission and said, "We've got an old building," to use Senator Losier-Cool's example, "and we don't think we'll ever be able to accommodate persons who have mobility disabilities," you are saying, in effect, that, under the current section 17 they would be able to adopt a plan, but their plan would be saying effectively, "We can't put an elevator in, but we'll go down and meet the people at the front door." Then the job gets done.
Ms Falardeau-Ramsay: That would be the subject of a hearing, and the associations for the disabled or the union that is certified at CN Rail would come and express their views on that. Then it would be for the commission to make a decision.
As a result of individual complaints, while they are not obliged to do so, many of the big employers -- because we are dealing mostly with big employers -- will be ready to make any effort to look at the entirety of their organizations. That is why we would like to have the other amendment that deals with the possibility of having a policy complaint on service, without having a stated victim. There might be, for example, the association of the paraplegics that would file a complaint stating, for example, that Canada Post outlets are not accessible across Canada.
At the present time, we would not be able to deal with such a complaint. We can deal with a complaint of Mr. So and So from Newfoundland who says that in Newfoundland he cannot access. But if Canada Post is not ready to come forward and say that they will look at all their operations across the country, then you can only force them to look at a specific area.
That is one of the reasons why we asked for that other amendment. I am using Canada Post as an example because they were very cooperative with us.
Senator Kinsella: With reference to the amendment dealing with the report and reporting by the Human Rights Commission to Parliament, would you describe for the members of this committee the reporting mechanism as it exists right now and what it is that you, as a Human Rights Commission, envisage? At the present time, whom do you report to?
Ms Falardeau-Ramsay: We report through the Minister of Justice. As I said in my opening statement, we have not had any interference whatsoever. However, sometimes it is awkward and it might even create a conflict of interest due to the fact that the majority of respondents that appear in front of the commission are represented by Department of Justice lawyers.
It is interesting that we would report through the Minister of Justice, while at the same time the Minister of Justice represents the most frequent respondent in front of the commission. We think it would increase the public perception of the independence of the commission. That is why we asked for that particular amendment.
As I mentioned earlier, this is one of the principles that have been recognized internationally for the national institutions for protection of human rights in various countries. Those are known as the Paris Principles, and one of them is the independence in reporting to Parliament.
Senator Kinsella: It is interesting that this amendment specifies that a copy of the report be submitted to the Speaker of each chamber. What is the hope of the Human Rights Commission as to what the two chambers of Parliament would do with that report? What would be your expectations?
Ms Falardeau-Ramsay: I would hope, first of all, that they would read it, and take into consideration what the commission is saying, and perhaps use it in their functions as legislators.
Sometimes we are closer to specific areas of human rights in Canada than you can be, because you cannot be everywhere at the same time. It is important that you should know from our organization what we think are important human rights issues at the moment in Canada. I hope you would see it as a help.
Senator Jessiman: Do you make recommendations in your report?
Ms Falardeau-Ramsay: Yes.
Senator Jessiman: The House of Commons and the Senate will get those recommendations, and you hope we act on them. Is that correct?
Ms Falardeau-Ramsay: Yes. Part of our role is to monitor the situation of human rights in the country.
Senator Kinsella: In 1998 the world will mark the 50th anniversary of the universal declaration of human rights -- the Magna Carta of this century. One of the recommendations that are contained in the suggestions from the UN Human Rights Commission around this matter is that national Parliaments would strike special committees dealing with human rights.
Do you think that it would be helpful to have a special committee of the Senate on human rights that would, if this bill passes, be receiving your report annually? Is it not true that reports of some detail are submitted by Canada under the two international covenants on human rights, as well as reports under a number of special human rights conventions and other instruments? There are a number of reports in Canada that are being prepared on human rights, many on the domestic situation of human rights in Canada, some on international matters. Would there not be sufficient data for having a standing committee or a special committee -- a committee on human rights -- that would be kept busy on the matter of human rights?
Ms Falardeau-Ramsay: We always welcome people who are especially interested in the area of human rights. I am sure that a human rights committee of the Senate would be of help in looking at the human rights situation in Canada.
You would probably be the best people to decide, depending on your particular interest in human rights and the importance that it has in Canadian society, whether or not to form a committee. I do not want to take the place of the Senate to decide whether or not there should be a committee. Any help in human rights issues is always welcome.
Senator Kinsella: Madam Chairman, I would like to have the opportunity to ask some questions on the Canadian Human Rights Tribunal, but I will stop now so other colleagues can have a chance to ask questions.
The Chairman: Senator Cogger.
[Translation]
Senator Cogger: Getting back to the question from my colleague Senator Losier-Cool and to your answer, in no way do I profess to be an expert on the subject, but I would assume that issues relating to architecture and heritage preservation come up repeatedly. However, if we read the text of the bill, I do not see how the Commission could have jurisdiction over these areas. The legislator states that undue hardship will be assessed by taking into account health, safety and cost. You say that you will consult with historians and architects on architectural and heritage preservation issues. However, unless you can establish a direct link between these issues and health, safety and cost considerations, you do not have the authority to take them into account. They cannot be a consideration. Therefore, is the bill not imposing limitations as far as you are concerned?
Ms Falardeau-Ramsay: Generally speaking, cost is always a factor. Ordinarily, if cost is not a consideration, it is always possible to come to some kind of arrangement. However, cost is almost always a contributing factor.
Senator Nolin: Is it not occasionally invoked as a red herring?
Ms Falardeau-Ramsay: That is what we need to assess.
Senator Cogger: Do you feel that by restricting the standards for assessing undue hardship to cost, health and safety, you have sufficient freedom of action or decision-making authority to fully exercise your jurisdiction?
Ms Falardeau-Ramsay: We feel that this strikes a balance between the two schools of thought on the subject. One school holds that undue hardship should not be invoked as a reason for denying accessibility while the other holds that there are limitations, meaning that accessibility is all well and good, but sometimes it is expensive and involves some risks.
This bill is a happy medium. It strikes a balance between the two extreme positions and enables us to operate effectively and to extend protection to persons with disabilities while safeguarding at the same time the interests of employers and suppliers of services.
Senator Cogger: My second question is tied to the first. The first provision refers to assessment standards, while the next indicates who has the power to make regulations prescribing assessment standards. I do not understand this very well. In my view, the legislation is poorly drafted.
I am not certain what the first provision refers to, unless the legislator meant to say standards for applying the criteria. Perhaps your lawyer could enlighten us. If I were the chief commissioner, I would not be happy with this. I would say: Go ahead and limit my field of intervention, but leave me some discretionary power.
Ms Falardeau-Ramsay: I totally agree with you, Senator Cogger. You have taken the words out of my mouth. There is no reason why the Governor in Council should make regulations prescribing standards for enforcing the first part of this provision.
This is an interesting point, because it raises the same problem that I referred to, namely that the commission reports through the Department of Justice. This creates a fairly obvious conflict of interest, in that the government establishes its own guidelines with respect to accommodation. That is one point.
Second, in the United States as in Ontario right now, commissions make their own regulations governing this area.
We have no objections to the commission making its own regulations or to these regulations not being affected by the legislation, because the courts will be the ones to interpret the first part of this provision.
Senator Nolin: We will concede that point to you.
Ms Falardeau-Ramsay: How kind.
Senator Losier-Cool: Ask and you shall receive.
Senator Cogger: At the very least, sub-clause 3 should be deleted.
Ms Falardeau-Ramsay: Yes. I fully agree that it should be deleted.
Senator Gigantès: Would this not create more work for the courts? Is the purpose of this legislation not to ease the courts' workload?
Ms Falardeau-Ramsay: I am not certain that that is the aim of the legislation. These criteria are already set out in jurisprudence and these principles already exist. I prefer to see human rights tribunals and courts of law establish standards rather than the Governor in Council who would be acting as an employer.
Senator Cogger: I agree with you. I think that we should give the commission the power to act within a sufficiently broad framework and to prescribe standards which it must abide by and then let it do its work. I fail to see how we can prescribe regulations to assess undue hardship. A corner store operator may view certain costs as undue hardship whereas a multinational would not. I do not like it when we set up commissions with quasi-judicial powers and subsequently, impose so many restrictions on them that ultimately, we seem to be dictating their actions.
I agree that we should delete sub-clause 3 which, in my view, only complicates the interpretation of the legislation. This is true whether we read the text in French or in English. The English version reads as follows:
...would impose undue hardship ... considering health, safety and cost...
The next paragraph continues:
...may make regulations prescribing standards for assessing undue hardship.
It was my understanding that "health, safety and costs" were not standards, but rather criteria. However, if we use the word "critères" in French, we would be using it two times, which would make no sense.
Ms Falardeau-Ramsay: I agree with you.
Senator Nolin: When you say that you agree with me, what exactly do you mean? We are making a recommendation to you.
Ms Falardeau-Ramsay: I prefer that no such authority to make regulations be granted. I would prefer to see the courts interpret this provision and apply it on a case-by-case basis.
Senator Nolin: In other words, you would negotiate with an employer who comes under the jurisdiction of this legislation. The employer may find that the legislation is not suitable and ask the federal court to interpret the Act and make a ruling. Could you explain to me what role you foresee for the courts in all of this?
Ms Falardeau-Ramsay: When we receive a complaint, we try to settle it. We always feel that an agreement or a settlement is preferable to going to court. However, if we cannot settle the complaint and feel that a more thorough investigation is required, we will forward it to the Human Rights Tribunal. Our lawyers represent the public interest and will defend it before the tribunal. After hearing both sides, the tribunal will hand down a ruling.
Of course, the tribunal's decision can be appealed to the Federal Court and ultimately to the Supreme Court. Have I enlightened you?
[English]
Senator Jessiman: Under clause 28 of the bill, the panel has the right to make one of three orders. Proposed paragraph (b) of subsection 54. (1) is:
an order under section 53(3) to compensate a victim specifically identified in the communication that constituted the discriminatory practice.
Is that to be limited to a certain amount or could it be any amount?
In proposed paragraph (c) the penalty is limited to $10,000; is (b) an unlimited amount?
Ms Falardeau-Ramsay: Yes, because, for example, somebody might have been fired from his or her job because of race or religion or whatever. That person, having made all the possible efforts to find a job, may have not found another job. That would be, for example, compensation for time lost.
Senator Jessiman: So it could be substantially in excess of $10,000?
Ms Falardeau-Ramsay: Yes, it could.
The Chairman: I believe it says $20,000.
Senator Jessiman: It does not say that in paragraph (b). The amount of $10,000 is the penalty, but you are saying there is no limitation. It is up to the Human Rights Commission to decide?
Ms Falardeau-Ramsay: It would be decided by the tribunal, but the commission can push for it.
We have had cases where as much as two or three years' compensation were given to the victim of discrimination.
Senator Jessiman: So you already have that authority?
Ms Falardeau-Ramsay: Yes.
Senator Jessiman: I thought this was something that was being added.
Ms Falardeau-Ramsay: This is in relation to section 13 of the act. I am sorry, I gave you the wrong answer.
Section 13 deals with harassment of hate propaganda on telephone lines or any other telecommunication undertakings. At the moment, if it is found that a person has committed hate propaganda, there is no way whatsoever to compensate the victim.
Senator Jessiman: You must have had something to do with this section. Is it unlimited?
Mr. Pentney: No. It refers back to the top of the page, senator. It refers back to compensation of $20,000 for mental distress.
Senator Jessiman: Is it true that you people did not think the government went far enough and you thought this should extend to telephone, mail, radio, internet, and not only to telecommunications?
Ms Falardeau-Ramsay: At the moment, a tribunal is deciding whether or not hate propaganda on the internet is under the jurisdiction of the commission. We are fairly confident that the tribunal will decide that the internet is covered under section 13, because it is a telecommunication undertaking, either by telephone lines or by fibre-optic cable.
Senator Jessiman: What about mail?
Ms Falardeau-Ramsay: Mail is not under our jurisdiction because it is in written form. It would be under our jurisdiction if it is in an employment setting. For example, if there is hate propaganda mail from one federal employee to another federal employee or hate propaganda mail from a manager to an employee, that would be covered under the jurisdiction of the Canadian Human Rights Commission.
The Chairman: On the second round, Senator Kinsella.
Senator Kinsella: What is the budget for the Human Rights Tribunal now?
Ms Falardeau-Ramsay: It would be better to ask that of the Human Rights Tribunal. Since there has been a complete administrative cut between the commission and the tribunal, we are not dealing with the budget of the tribunal.
Senator Kinsella: Madam Chairman, may I ask, through you, the committee members whether or not it is the intention to invite a representative from the Human Rights Tribunal to appear as a witness?
The Chairman: We have a list of witnesses at this point, and they are certainly on the list. We have not worked our way down the list and eliminated anybody yet.
Senator Kinsella: The Human Rights Tribunal is on the list?
The Chairman: That is right.
Senator Kinsella: This act is providing for remuneration, and I would be curious to know how much they are paid.
Ms Falardeau-Ramsay: I have no idea, Senator Kinsella. It would be best to ask them directly.
Senator Kinsella: Do you have an opinion on the section of the bill on page 12 where there are statements as to the qualifications necessary to qualify to be a member of the tribunal? In proposed subsection 48.1(2) there is a general statement that seems, in my mind, to cover everything. Then in 48.1(3) there is a restriction that a person must be a member of the bar.
Do you think that limitation is justified? There are many members of the bar who are indeed sensitive to human rights and are good human rights people; but there are many others who have embraced areas that have nothing to do with this field. Do you think that section is redundant to the one that precedes it?
Ms Falardeau-Ramsay: I do not think so. The members of the bars that will be appointed will have expertise, an interest in and be sensitive to human rights. You can have both together.
It is interesting to note that the requirement of subsection 48.1(3) entertains the idea that the chairpman, the vice-chairman and at least two other members should be lawyers; four out of 15. I think that is very important.
Let me speak to you about a former experience when I was chairman of the Immigration Appeal Board, where we were exactly in that same situation and the chairman had to have that same requirement of ten years' experience at the bar. When you deal with a human rights area, you deal with quasi-constitutional issues. The Human Rights Tribunal is the only quasi-judicial tribunal that I know of that has the authority to void a federal law. These are questions for lawyers to help decide.
Tribunals, and mostly human rights tribunals, due to the intervention of the courts, are becoming more and more judicial in nature. Therefore, you need people who know what it means to have the burden of proof, what type of burden of proof must be applied, what is the weight to be given to evidence, what is the relevance of that particular type of evidence, and what are generally the procedural rules that are applicable.
There are cases that are very complicated, and it is important to have somebody who knows how to control the hearing process so that it will not go into areas that are, for example, outside the type of relevant evidence that you need.
There should be a small number of lawyers, but the majority of the members of the tribunal should be outside of the legal profession. They have to have members from the legal profession to help and give advice as far as legal issues are concerned.
Senator Jessiman: Does the commission have its own counsel as well as these people?
Ms Falardeau-Ramsay: We have the pleasure of having Mr. Pentney, who is probably the best lawyer in human rights law in Canada.
[Translation]
Senator Nolin: Are the parties who come before the tribunal represented most of the time by counsel?
Ms Falardeau-Ramsay: Generally speaking, yes. Moreover, that is why the system has become more judiciary in nature over the years. We deal with employers who are multinationals or with very large firms that engage the services of high-powered lawyers.
Senator Nolin: That is why you have good lawyers.
Ms Falardeau-Ramsay: Obviously. It is also another very good reason why some of our members are lawyers.
[English]
Senator Kinsella: In clause 21 of the bill you are amending paragraphs 37 (1)(e) and (f) of the act, which say:
(e) prescribing the rates for remuneration to be paid to part-time members of the commission ...
(f) prescribing reasonable rates of travel ...
Under the current section 37, do you now do this?
Ms Falardeau-Ramsay: Yes.
Senator Kinsella: Why do you need to have that amendment? What are those rates today? Who determines the remuneration of part-time members of the commission at this time?
Ms Falardeau-Ramsay: This is determined by Order in Council.
Senator Kinsella: This amendment would have the commission determine that?
Mr. Pentney: It is essentially determined by a by-law of the commission which is approved by Treasury Board. If you look at the act itself, the current subsection 37(1) provides that the commission may, by by-law, establish the rates of remuneration of part-time commissioners. However, under subsection 37(2), that by-law has to be approved by Treasury Board.
Originally, when the act was passed, the commission also had much more control over the Human Rights Tribunal. By unfortunate lapse in legislative amendment, when the independent Human Rights Tribunal was created, this provision was not amended. So we are in the unfortunate situation of being seen by some to still be setting the rates of pay of the judges -- which, perhaps in a Latin-American kind of context, is a convenient thing to do.
We have obviously not changed those rates of pay, and we certainly do not raise or lower them depending on the outcome of the case.
Senator Kinsella: I am glad Senator Nolin is here. Look at the authority the Human Rights Commission has and Internal Economy does not.
Senator Nolin: I was thinking of the Judges Act, not Internal Economy.
Senator Kinsella: The Human Rights Commission, by by-law, can set the rates of its part-time commissioners.
Mr. Pentney: Only if that by-law is approved by Treasury Board.
Senator Kinsella: How much is that today?
Mr. Pentney: We will have to get that answer. I do not know what it is. I remember Max Yalden wrote that on an hourly basis it was the equivalent of a journeyman electrician's wages.
Ms Falardeau-Ramsay: It is not a large amount.
Senator Kinsella: You prescribe the rates of travel and living expenses to be paid to members. Could you get that for us as well?
Mr. Pentney: The members follow Treasury Board guidelines; therefore, they follow the same guidelines that any public servant follows in respect of travel or living expenses. We think the by-law says that the rate of pay is in the neighbourhood of $325 per day, but we will confirm that.
Senator Kinsella: In a general way, going to this new permanent Human Rights Tribunal from the present model of the tribunal, from the standpoint of the Human Rights Commission why do you think that is necessary?
Ms Falardeau-Ramsay: We think it will be much more effective and efficient.
Let us say you have a case where there are two or three lawyers involved from a very well-known law firm, and there are three members of the panel from three different regions of Canada, one being a high-priced lawyer, one being an academic, and the third one being in another profession; you have to make sure that those three people will have the same time free to hear the case.
There is the tendency for cases to take much more time than they used to. If two days are set aside for a hearing and at the end of the two days it is realized that three more days are needed, in order to get those people together again it will take three months before another date is found. That explains part of it.
Senator Kinsella: Right now, generally speaking, how long on average does it take a case to be adjudicated from the time the complaint has been filed until it goes through the tribunal process?
Ms Falardeau-Ramsay: At the moment, it takes on average nine months from the moment a complaint is filed until the moment it is sent to tribunal.
Mr. Pentney: Just to be clear, the nine months is within the commission's process.
Senator Kinsella: That is not the hearing?
Mr. Pentney: According to the last figures I saw for the date of its being sent to tribunal until the completion of the tribunal hearing, it takes, on average, about 18 months until the release of the tribunal decision.
Senator Kinsella: Do you think these amendments will have any impact on the average time a complaint takes within the Human Rights Commission, and will the time be abbreviated once it is before the tribunal?
Ms Falardeau-Ramsay: There will be less time between the time a complaint is sent to the tribunal and the time it is first heard. Then there will be less time between the hearings. If it is a case that takes five days of hearings, you can have five days in a row. It will make the time shorter from the finishing of the case at the tribunal and the writing of the decision, because they will be working full-time on the particular issue. That will shorten all the time limits at the tribunal level, and will be a big advantage.
It will have the added advantage of creating a body of people who will know in-depth human rights areas and will probably, we hope, establish a consistent approach to human rights issues.
Senator Kinsella: From a budget standpoint, will this new system save money and, if so, how much money?
Ms Falardeau-Ramsay: I do not know how much money, because it is not our organization. It is the Human Rights Tribunal and it is separate from us.
Senator Kinsella: What is the budget of the Canadian Human Rights Commission?
Ms Falardeau-Ramsay: It is $14,872,000.
Senator Kinsella: What percentage of that budget would you say would be assigned to combating racism?
Ms Falardeau-Ramsay: That is almost impossible to say. Our budgetary allocation is not made by grounds of discrimination but by sectors of operation.
Senator Kinsella: Let me ask the question this way, then. What percentage of the complaints of discrimination the commission has received in the past year, for which you have data, would be based on racial grounds?
Ms Falardeau-Ramsay: If I add race, colour, and national and ethnic origin, it would be 18 per cent.
Senator Kinsella: Of those race complaints, what percentage went to Human Rights Tribunals?
Mr. Pentney: We can get you the data on the number of race cases sent to tribunals. We have data on the total numbers sent to tribunals.
Senator Kinsella: The purpose of the question, Madam Chairman, is that Parliament, you will recall, approved the legislation that created the Canadian Race Relations Foundation, which was given $25 million, but has absolutely no legislative mandate to combat, legislatively, discrimination in Canada because of race.
Therefore, our anti-race discrimination agency remains the Canadian Human Rights Commission. I am very curious to find out how effective the Canadian Human Rights Commission is in combating racial discrimination in Canada. The criticism, in part, that I have of the bill that is before us is that there seems to be a tremendous amount of bureaucratization occurring with the Human Rights Tribunal, et cetera.
I want to be comfortable in the knowledge that your $14 million is not all going to a bureaucracy; surely a significant percentage is going towards tackling the human relations issue which the commission was established to deal with.
Mr. Pentney: We do not have the data on the number of race cases sent to tribunal, but the truth is I am not sure that that data would be all that telling.
For your assistance I should describe three broad initiatives within the commission to deal with race discrimination. First, just looking at cases that are sent to tribunal now, we are dealing with a complaint of promoting racial hatred through the internet against Ernst Zundel; this is a precedent-setting case alleging that his site on the internet promotes racial discrimination.
Last year, to take another example, we proceeded to tribunal, and after a lengthy tribunal proceeding, established that a major federal department, Health Canada, had committed racial discrimination in promotion and hiring of racial minorities into the senior executive category. Through the course of that tribunal, we established that there was a variety of hiring and promotion practices that were not promoting racial equality within that work force. We obtained a tribunal order that will run for the next several years under which Health Canada is to revise its hiring and promotion policies to promote a certain number of people into the feeder groups and into the executive category, where those people are qualified, and to undertake a variety of other initiatives.
We also established before a tribunal in two separate cases that individuals had suffered race discrimination at Health Canada when they failed to obtain jobs, and we obtained jobs for those individuals.
On the tribunal side, the commission has been quite active. If you were to check in the Human Rights Reporter, you would find that the major race discrimination victories in Canada have been won by the Canadian commission, starting with a case that some of the senators may know of, Chander-Grover vs. National Research Council which, at the time, was a landmark in establishing race discrimination.
The commission has been active, as well, in the community, trying to develop relations with community organizations and to monitor the activities of bigots and racists in the community, and to trying to work with community groups to provide information and assistance.
Let me give you an example of the fruits of that type of community activity in trying to combat racism at the ground level. We find that the hard-core racists in Canada, those that are organized, are trying to recruit youth in a very active way; so we worked with a community organization in Winnipeg to develop a game on the internet specifically directed at youth, presuming that youth are much more internet friendly than most of us around this table are likely to be, and that we can teach them about racism through a game on the internet. We devoted resources both to creating the game and to advertising it, and the game, which is called "Erasing the Hydra of Hate", is now launched. Individuals can get access to our website and get into and play the game through which they are educated about the extent and nature of racist activity in Canada and the sorts of myths and facts, if you like, that they ought to be aware of to better be able to respond to the entreaties of organizations like the Heritage Front and other organizations that are trying to recruit them.
The commission is not hiding in its offices and devoting its time to bureaucracy. We are out there in the community trying actively, through promotion, through research activities, and through litigation where necessary, to address the problem of racism.
Having said that, we are a very, very small player in a much larger universe. There are other federal departments. There is the new federal centre, and a great variety of provincial agencies are also involved. The last aspect of our work is to try to coordinate our activities with others. When you do that, you realize that we are a very small player in a much larger universe in terms of anti-racism activity.
The Chairman: I was going to ask a question or two, but the time is going on and we do have some committee business to cover before we leave. I would like to thank you, Ms Falardeau-Ramsay and Mr. Pentney, for appearing before us. We will certainly give full consideration to what you have said.
Committee members, one of the first things we have to do is consider a draft budget. The figures for it are not a great deal different from last year's budget. Following through all the same items, the amount for professional services and services such as videoconferences has been increased to $10,000; the amount for legal counsel has been increased, as well.
Senator Nolin: Is that $10,000 limited to videoconferences or is it for things "such as"?
The Chairman: "Such as."
Senator Nolin: So that would include communication services?
The Chairman: That is right, if we are dealing with a bill and must hear from someone who cannot be here.
Senator Nolin: That is fine, but if we want communication services, we are going to --
The Chairman: If we need a consultant.
Senator Nolin: We are going to take the money from professional services?
The Chairman: That is right.
Senator Nolin: You assume that $10,000 will be enough?
The Chairman: That is what I have been told.
Senator Gigantès: That seems excessively modest, if they keep sending us things at the present speed and volume.
Senator Nolin: Madam Chairman, Internal Economy has an emergency fund from which it will give you the money if you need it fast.
The Chairman: We have increased the budget on legal counsel from last year to provide ourselves with a cushion in case we need outside legal counsel.
Membership and registration is the same. Meals have been increased by $1,500. If we are going to have the time slot on Thursday morning starting at 10:45 a.m. and going through to 1:00 p.m., it is quite likely that we will have to eat while we are having the meeting. If we are going to continue meetings on Wednesday that carry on through, we will occasionally have to provide food.
Senator Nolin: We do not have the budget for witnesses yet, but we will have that number when we report at the end of the year, and we will know how much the committee has cost.
The Chairman: That is right. The first part of the budget under Professional and Other Services has gone up from $14,300 last year to $22,900 this year. We are building in a cushion for these extra costs that we perceive.
Travel expenses remain the same.
Senator Gigantès: Madam Chairman, there is a reference to two persons at two conferences times $1,000. Who are these two persons and they will go to what conferences?
The Chairman: This is for members of the committee or the staff to be sent to conferences regarding committee-type work. For example, if there was a conference in Washington that related to the work of our staff and would benefit us, this would cover the expense of attending that.
Senator Gigantès: If you are sending them to Washington for a week, $1,000 is nothing. I am paying $52 a night for a flea pad called Days Inn. The walls are peeling.
The Chairman: We do not send our staff off to live in luxury. We send them off to live in flea pads.
We have built in a cushion this year for other expenditures, but mainly for the purchase of books and periodicals. We are providing 12 copies of the Criminal Code and 12 Constitutions in order that every member of the committee will have a copy. This is the major extra expense.
The total of $31,400 seems to me to be very reasonable. Could I have a motion to approve that?
Senator Nolin: I so move.
The Chairman: Is it agreed, honourable senators? Carried. I will make the presentation to Internal Economy.
At the moment, Senator Gigantès is acting in place of Senator Lewis on the steering committee, and there may be times when Senator Cogger cannot be here. We should agree, or have a motion to the effect, that Senator Nolin will stand in as a deputy for Senator Cogger.
Senator Gigantès: I so move.
The Chairman: Honourable senators, as you know, Bill C-13 came to us today, and the House leader, Mr. Boudria, has made himself available to the committee to be heard tomorrow morning; however, he can only do that for a very short time beginning at 10:30, rather than at 10:45, so with your approval we will meet here tomorrow morning at 10:30 to call in Mr. Boudria. Because no further witnesses are available for tomorrow on Bill S-5, we will hear witnesses on Bill C-220 after we have heard from Mr. Boudria.
Senator Nolin: Who are the witnesses for Bill C-220 tomorrow?
The Chairman: Tomorrow we will hear from victims of violence.
Senator Nolin: What type of witnesses are you seeking for Bill C-220? I understand that some departments have asked to appear. Have you sought the advice of constitutional lawyers who are experts in freedom of speech expression?
The Chairman: We have agreed on three or four witnesses to begin with, and then we will carry on with a further list. One group will be a panel of writers, and we will also be hearing from the Justice officials; however, they could not come tomorrow.
The committee adjourned.