Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 9 - Evidence
OTTAWA, Wednesday, December 3, 1997
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-5, to amend the Canada Evidence Act and the Criminal Code in respect of persons with disabilities, to amend the Canadian Human Rights Act in respect of persons with disabilities and other matters and to make consequential amendments to other Acts, met this day at 3:33 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we have with us today representatives of the Canadian Bankers Association.
Please proceed.
Ms Harriet Stairs, Executive Vice-President, Bank of Montreal: Honourable senators, we are here today on behalf of the Canadian Bankers Association, which represents Canada's 53 chartered banks. We are very pleased to have the opportunity to appear before you this afternoon to address the several issues relating to the changes in the Canadian Human Rights Act that are proposed in Bill S-5.
The banking industry is one of the three major industries regulated under federal human rights law. We work with over 200,000 employees and literally millions of customers across the country.
The banks support the principles and objectives of the Human Rights Act. There are numerous changes in Bill S-5 which we support, including the addition of the duty to accommodate special needs. For many years, we have been working on the duty to provide reasonable accommodations for our employees and our customers who need them.
The banks are aware that there is much to be done to ensure that persons with disability can participate fully in Canada's social and economic mainstream. The banking industry wants to be part of the momentum for change for persons with disability. In order to do that, we need a legal framework that is supportive and enabling, not restrictive and unreasonable.
Our concerns with Bill S-5 are about clarity, flexibility, and reasonableness. They are also about workability, not what is convenient, but what is workable and achievable as we move towards greater integration of society.
It is on the basis of these concerns that we make only two recommendations for changes to Bill S-5. These recommendations are: First, to amend the proposed language for clause 15(2) to add the word "reasonable" to the duty to accommodate, and to broaden the criteria for interpreting the test of undue hardship, and; secondly, we recommend that the law should not allow for complaints where there is no identifiable victim.
Let me discuss the duty to accommodate to the point of undue hardship.
In our written submission, we recommended amended wording for clause 15(2) regarding the duty to accommodate special needs to the point of undue hardship. The changes we propose are as follows: To insert the word "reasonable" before "accommodation," and to add a phrase with respect to undue hardship which would read, "having regard to all relevant and bona fide considerations including health, safety and cost." This wording introduces greater flexibility of interpretation of undue hardship than is now provided in Bill S-5. We believe this wording, if added to the legislation, will maintain the firm, fundamental duty to accommodate to the point of undue hardship in a way that is consistent with the duty imposed by the Employment Equity Act.
Even more significant, it is also consistent with the decisions of the Supreme Court on this subject since the early 1980s. In our written submission, we show very explicitly how the Supreme Court has dealt with the duty to accommodate and how it has interpreted undue hardship in many of its decisions. Those decisions offer a range of factors to be considered, including, but not limited to, financial cost, disruption of a collective agreement, morale of employees, interchangeability of the workforce, facilities, size of business, and safety. The consideration of these factors promotes flexibility and balance, and truly reflects the notion of reasonableness in assessing undue hardship.
However, Bill S-5 explicitly narrows the criteria for interpreting undue hardship to three factors -- health, safety and cost. These are important criteria, but the Supreme Court has recognized others and has enumerated them. Most important, the court has said that the list of factors is not exhaustive. The factors may need to be weighted differently for large and small businesses and in response to different economic conditions. Obviously, they will vary from case to case.
We cannot accept the arguments which suggest that the present wording of Bill S-5 simply codifies existing jurisprudence. The examples from court decisions we provide in our submission demonstrate that the present wording in the bill is a significant departure from the approaches taken by the Supreme Court in all of their decisions on this subject.
Senator Gigantès: Is that a significant departure?
Ms Stairs: Yes. The wording in the bill now is a significant departure from the approach taken by the Supreme Court.
We also find it difficult to understand why Bill S-5 leaves out the word "reasonable" with the duty to accommodate. The Supreme Court has consistently addressed reasonableness as a necessary part of accommodation.
Some people have suggested that the concept of reasonableness is inherent in the bill. If it is inherent, why should it not be stated so that the law is clear and transparent?
In addition, we have been advised that the approach taken by Ontario is the model that the Department of Justice has chosen for revising the Canadian Human Rights Act. In our written submission, we provided you with details of an Ontario tribunal decision which interpreted the Ontario law and the guidelines strictly. That decision provides an example of how that approach can lead to decisions that are not reasonable.
I should like to discuss an example of accommodation that may help to clarify the points we are making about the need for flexibility, balance and reasonableness in assessing undue hardship.
Accommodations in the bank cover a wide range of needs. A recent example has been the need to set aside a room for prayer which can be used regularly by an employee who wishes to observe the requirements of his religion. For a large organization, this accommodation was not unreasonable; it was straightforward and inexpensive. On the other hand, for a small business with limited space, such an accommodation would be more difficult.
How far should a small employer be required to go to accommodate that need? According to some testimony you have heard, if only safety and health were an issue, perhaps a small business person should build an extra room on to his or her facility.
The duty of reasonable accommodation, short of undue hardship, has been firmly entrenched in federal law by virtue of the court decision at the highest level of the country. It has also been entrenched in the Employment Equity Act for 10 years under which the bank, as employers, has been able to make substantial progress towards achieving representative work force. The concept is well understood and we are able to make it work well within our organizations.
Our second point concerns the victimless complaint in the provision of goods and services. Let me deal briefly with that second recommendation.
We are concerned about an amendment that will allow for the laying of a complaint in the provision of goods and services where there is no identifiable victim. In our view, the addition of proposed section 5 to the paragraph which provides for the laying of complaints where there is no identifiable victim will not enhance the complaint process under the proposed legislation. Indeed, it will tie up the commission's resources in long negotiations and will ultimately be unresolvable.
The banks themselves have had experience with victimless complaints in employment and they have proven almost impossible to resolve. As noted in our submission, three out of the five victimless complaints laid against the banks in 1988 are still unresolved nine years later.
Such complaints violate our system of natural justice, which upholds the right of the accused to know his or her accuser. It is also fundamental that, where a complaint has been brought against a person, full particulars be defined in order that the respondent be given a fair opportunity to put forward a defence.
In addition, we wish to point out that when the Employment Equity Act was reviewed and amended in 1995, the House of Commons Committee on Human Rights and the Status of Disabled Persons recognized the ineffectiveness of victimless complaints and ensured that the new law contained provision which prevents the laying of victimless complaints in employment based on statistics alone.
We urge this committee to amend Bill S-5 and to remove clause 5 from the list of areas in respect of which complaints can be made where there is no identifiable victim.
In conclusion, we acknowledge that the process of moving towards the elimination of all discrimination in the provision of employment and in goods and services is going too slowly for some advocates. At the same time, we wish to point out that Canada has come a long way in the past 20 years in many respects. Aided by the Employment Equity Act and the Canadian Standard Association's barrier-free design standard, federally regulated industries have been able to make positive changes within a structured but flexible framework of law and standards.
The changes in our workforce policies and practices, in our premises, and our services are substantial. They have provided testimony to the effectiveness of the existing federal laws and precedents. In our experience, when the law establishes inflexible narrowly defined restrictions, ironically, they do not create momentum for positive change. Instead, they tend to create frustration, acrimony, complaints and litigation.
We urge to you consider the changes we have proposed. They would provide employers and service providers with the necessary confidence to move forward at a pace and in ways that can help us maintain the steady momentum already underway in our efforts to achieve the goal of participation and equality in economic life.
Senator Cogger: Ms Stairs, I have had the opportunity to go through your brief and to meet with representatives of the association. We have heard several views concerning this bill. I will now address clause 10 of the bill, which amends section 15 of the Canadian Human Rights Act.
There is concern about the application of the undue hardship test. There are those who suggest that we broaden the scope of criteria to be brought in, right down to social condition, and so on. In other words, as legislators, we would have the power to say, "When it comes to assessing undue hardship, you will take into consideration the following." We could then list 15 or 30 things. There are others who suggest that we should leave it all in the hands of the tribunal of the Human Rights Commission. In other words, we should remove the last words of section 15 and say "would impose undue hardship on the person who would have to accommodate those needs," period. That would leave it to the tribunal to take into account whatever they deem is appropriate to take into account.
How would you react to the second proposal -- not the one you brought forth but the other avenue?
Ms Stairs: We would prefer the one we brought forth, but the second one sounds reasonable. Perhaps Mr. Finlay could answer that.
Mr. Andrew Finlay, Senior Counsel, Employment Law Group, The Bank of Nova Scotia, Canadian Bankers Association: In this case, we are fortunate that the courts in Canada have breathed life into the concepts of reasonable accommodation and undue hardship. They have done a good job providing guidance both to employers and to service providers.
By not defining "undue hardship" in the act, Parliament recognizes that there is good law on this topic and that it will work quite well. It will also work with fairly well established law. We would be comfortable with no definition whatsoever. The definition we proposed is meant to capture the flexibility and balance that the Supreme Court has presented.
Senator Cogger: What you propose is not a definition; it is the criterion to assess. You do not define "undue hardship."
Mr. Finlay: That is correct.
Senator Cogger: As you are called upon to assess whether a situation constitutes undue hardship, its definition will be addressed at that time. I should like to remove the last few words of that section and continue to have the definition of "undue hardship" decided upon by the court.
If you read beyond the paragraph we just talked about in this bill, you are opening up a whole knew area where the Governor in Council may make regulations proscribing standards. I do not know if you have ever taken a look at regulations -- I am sure you have in the course of your legal life -- but whenever you find that contained in a bill, there is cause for concern. Sooner or later, you will be opening a door and you will not know what you will find on the other side thereof.
Ms Stairs: There needs to be enough flexibility for reasonable judgment. There seems to be good case law that is pushing us in a way that is reasonable. So if you did not want to put that in, if you did not want to be so explicit with the three words, then case law will drive us to a very reasonable outcome. I say that because of what has happened already in the courts. It is not as if this is brand new any more. There is enough precedent.
The Chairman: There is a body of case law already building up.
Ms Stairs: In our view, it seems very reasonable. However, by putting the word "reasonable" in, it would certainly help. That is what we are trying to say.
Senator Gigantès: I get worried about words such as "reasonable" in legislation because what may be reasonable to Senator Cogger may not be reasonable to me, and vice versa. In fact, that is often the case, is it not?
Senator Cogger: We live in a system where, for 100 years, we have had reasonable doubt in criminal law.
Senator Gigantès: Absolutely.
The Chairman: Senators, we are taking away from the time of our witnesses.
Senator Gigantès: We have heard other witnesses, and not just from the banking community. There was no concrete example that they gave us which could not be fitted under the words, "health," "safety" and "cost."
Mr. Finlay: By concrete example, do you mean a concrete example of an accommodation or a consideration?
Senator Gigantès: Yes.
Mr. Finlay: In terms of considerations, the Supreme Court has been flexible and balanced. What we have tried to include in our submission are quotations from significant decisions of the Supreme Court which highlight those considerations.
Senator Gigantès: The legislature has taken steps in the past that did not follow Supreme Court precedents and innovated in a way that had not been seen in the decisions of the Supreme Court. Why would not any of these accommodations come under those three criteria? Whatever it is, it will either cost you money, or it is bad for your health or it is bad for safety. There is not anything that cannot be fit under those three words. What is your objection to those three words, then?
Ms Stairs: I think we tried to give an example of one that would not fit under that. It was someone asking for a place for worship. While it could give rise to a cost, there could be a willingness to do that as well.
Senator Gigantès: However, it is a cost. The person would be unwilling to do it because it would cost money. If it were me, of course, I would be unwilling to do it because I object to all religious practices. However, religious practices are allowed under the Constitution of Canada. Therefore, I am unconstitutional in my views.
Ms Lynda White, Manager, Employment Equity and Diversity Management, Royal Bank, Canadian Bankers Association: There could also be morale or operational issues within a work environment. If you have a six-day operation, where you need to have people on shift full time for six days, you may end up having to deal with how to do the job accommodations or the flexibility arrangements when dealing with the operations of the company.
Senator Gigantès: We have heard that before. We were given the example of a mother who can only see her children on weekends. However, because of these accommodations, she must be given weekend employment. A little extra cost would solve that problem.
Ms White: The cost is not an issue in terms of accommodation for our industry.
Senator Doyle: In today's practice in this field, a little extra cost very often means "at all costs." Once you read these parts in the law without the word "reasonable," then it becomes a frightening prospect as to what costs could be expected.
Senator Gigantès: I hope we can have a discussion as to what is reasonable at some other time.
The Chairman: I think that is a very good suggestion.
Senator Jessiman: I, too, had the opportunity to talk to some of these people. You mention in your brief the Employment Equity Act. I am talking now, of course, about when there is no victim identified, and therefore you want that section eliminated. You explain that there are a number of cases that go back as far as 1987. You state that three of the five complaints remain unsettled nine years later, and it is possible that the settlements which have been achieved may not be effective in the long run.
What is it that they did that makes you think they will not be effective; or do you know enough about this nine-year old case?
Mr. Finlay: Are you referring to the settlements?
Senator Jessiman: You state that five complaints remain unsettled and it is possible that the settlements which have been achieved may not be effective in the long run. This points out how difficult a victimless complaint is to resolve.
This has been dealt with statistically. It is said because you do not have certain percentages, therefore, you must be discriminating. I want you to give me some facts as to why this is so difficult. What is it that makes this so difficult? How were these three cases settled? Even though they were settled, both sides agreed to it. However, you still say that you do not think it will work in the long run. Tell us what it is that makes you say that.
Not only do you have to convince us on this side, we have to convince the people on that side and the government to change this provision. I want some more ammunition here. I am not saying I agree with you yet, but I want to listen. I have read your brief.
Ms White: I appreciate that. You are probably aware that when the review of the Employment Equity Act was done, the requirements were changed so that complaints could not be lodged under the act on the basis of numbers alone. In that context, they were appreciating the fact that a complaint that had been victimless and which was lodged in 1988 had not worked as well as it might have. The complaint, when it was lodged in 1988, suggested that the five large banks and four other major organizations in this country were discriminating in hiring of people with disabilities. It was based solely upon, "Your representation is low. Therefore, you must be discriminating."
We entered into review processes with the Human Rights Commission. They spent years reviewing information and policies. It was really looking at the outcomes that we all wanted. We were sitting down with the commission in partnership in the context of wanting to resolve issues that were there. However, the specific issues that we were looking at were those around hiring. It became so broad that that has been one of the things that has caused it to be difficult for the unresolved cases.
Senator Jessiman: Tell us about the ones that were resolved, what you did and why you do not think it will work anyway.
Ms White: I can speak from my experience because ours was resolved and I was involved in that process.
There were three key components. One is around hiring. One is around technology being accessible to people with disabilities, internally. The other one was a resurvey of our staff. The resurvey on the employment equity data of our staff has nothing to do with the complaint.
We would have done it. It is good business practice. It had nothing to do, in my mind, with the resolution of that complaint.
Senator Gigantès: What does "re-survey of your staff" mean?
Ms White: It means we send out a survey document to all 55,000 staff asking them to self-identify if they are one of the designated group members or, at a minimum, to return the questionnaire to us indicating that they do not want to fill out the survey documents. Doing that survey requires huge communication processes because we have to get every staff member in the organization to do it. That is one piece of it.
Senator Gigantès: You sound worse than the public service.
Ms White: The public service also does this sort of thing, and I can tell you that it is a legislative requirement under the act, not our choice.
Senator Jessiman: Is it required every three or five years?
Ms White: There is no time frame requirement around surveying staff, but most will do it regularly because there is a difficulty in ensuring that you capture new staff or people in your system whose situations change, which could relate specifically to disability. As we age, we often acquire disabilities, and it is hard to catch people in the system. The survey was one piece of our agreement.
Let me address access to technology, particularly for people with disabilities. We committed that, in a going forward way, we would make technology accessible, to the greatest extent that we could, to people with disabilities. In all of our banks, we have individual mainframe systems. I am not a systems expert, so I really cannot speak to the magnitude of this, but people in our banks use mainframe systems and software-based systems. Some of those mainframe systems have been in place for 20 years, and they are at a stage where they have had many add-ons and have been altered over a period of time. They are costly systems, but they work for us today. In some cases, we may be looking for new products to change those systems but, if we want to continue working with them, the cost and the magnitude of being able to make those accessible is large.
There are also issues around changes being made on systems on a daily or even weekly basis, issues such as how we can ensure that people, particularly the blind, can have the technical support necessary to be able to use PCs to access the available programs and to get the systems information.
Senator Jessiman: Was one of the complaints that blind people did not have access, and is this how you are solving it?
Ms White: We are trying to make our system accessible across disability, but that is one of the things we are doing.
Senator Jessiman: I am talking about this specific situation. What did you do to remedy it?
Ms White: We are making technology accessible to the greatest extent we can.
Senator Jessiman: Have the people on the other side of this issue agreed with what you are doing so that it is settled?
Ms White: They have not. The agreement has been settled, and we are now in a monitoring situation with the Canadian Human Rights Commission for a three-year period. They will come back and examine the progress we are making.
Ms Stairs: As part of the accommodations the banks are making with the people with disabilities in this case, there is a plan that they have agreed to, but they are not satisfied yet with the outcome.
Ms White: The implementation is going forward.
Senator Jessiman: It is a matter of an agreement for monitoring. You say you have an agreement on the other complaints nine years later.
Ms White: That is right. The other piece of that agreement is a hiring goal, and the hiring goal that was agreed to was fairly significant at a time when we were hiring about 400 full-time people a year. Our information at that time suggested that our hiring numbers would not go up significantly, and they have gone up significantly, so we are not reaching the agreed percentage. We would be reaching it if we had stayed at the same hiring base.
Senator Jessiman: By taking on more employees, your percentage is not as good as the one in the agreement?
Ms White: There is another factor that has an impact on that, and that is the fact that the industry is changing and our jobs are shifting. We are not unusual in that. Most industries are going through a shift in the skills needed for the new knowledge-based jobs, so where there were more candidates in the past to be able to draw from for jobs at junior entry level, the skill level has increased and there appear to be not as many people with the skills. We are increasingly struggling to find people with the proper skill levels. That, as you know, just does not relate to people with disabilities. In the whole field of information technology, businesses right across the country are crying for skilled candidates.
Senator Gigantès: If we go page 7 of the bill, clause 10(2) states:
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 bone fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs...
"Undue" would be "unreasonable" hardship. There is the Human Rights Commission, and there is the tribunal, and we must assume that both those bodies are reasonable. Why do you need the word "reasonable" when you have to go through institutions that are there to see that things are not undue and, therefore, unreasonable?
Ms Stairs: Perhaps Mr. Finlay can answer that. We are based in Toronto and we have seen what has been done in the Ontario system.
Senator Gigantès: Those are Tories tending towards reform. This government is not that way.
Ms Stairs: That is what they have done in Ontario.
Mr. Finlay: Before Mike Harris.
Ms Stairs: That is right, and there was a case that frankly took it to the limit. It just seems to us to be unreasonable because they pushed it to the undue hardship limit.
Senator Gigantès: Was this under Bob Rae?
Ms Stairs: This is not a political issue; this is a philosophical issue.
Senator Gigantès: At sometime or another, some decision will be considered by one side or another not to be the right decision. This bill introduces another step in which you can take that decision to a tribunal and get some opinion. No matter what wording you put in there, there will be cases in which there will be discussion of whether it is due or undue hardship that is reasonable or unreasonable. I am wondering why, if you have the word "undue" there, you also want the word "reasonable."
Mr. Finlay: Everyone has taken the position that they expect reasonableness from the tribunal. Our position is that if that is true, then it should be no skin off our nose or your nose to add "reasonable" into the definition.
Senator Gigantès: That is a tautology. Why have a tautology?
Mr. Finlay: The courts have been very clear that undue hardship involves any number of considerations. There is no exhaustive list. You must take a balanced and flexible approach to the issue. The language that has been put forward here and which is also contained in the Ontario legislation is very restrictive. It sets out three criteria only. There is no consideration that there could be other criteria considered.
We were referring to the only decision of which I am aware that adopted the guidelines provided by the commission defining "undue hardship." In that case, they essentially forced a chiropractor in London, Ontario, ultimately to move his business because he could not comply with the order. Ms Stairs stated that they went to the limit of undue hardship. I think they went way beyond undue hardship in that case.
Ms Stairs: We are suggesting that we put in the word "reasonable" because it is a relative term. What is undue hardship for the Bank of Montreal or the Royal Bank is quite different from what is undue hardship for a chiropractor who has only two waiting rooms.
Senator Gigantès: You assume the Human Rights Commission is not capable of perceiving the difference between a chiropractor with two employees and the 55,000-strong Bank of Montreal?
Ms Stairs: I am not saying the Human Rights Commission would not know the difference.
Senator Gigantès: Or the Human Rights Tribunal?
Ms Stairs: The ruling that was given in this particular case in Ontario did not make much of a difference.
Mr. Finlay: Most tribunals and courts have made the distinction. They are acting in a reasonable fashion. However, if they are restricted to only three criteria -- health, cost and safety -- they may not have the ability or flexibility to consider other criteria, such as the size difference.
Senator Gigantès: Madam Chairman, I have to leave. I would be grateful if these witnesses would be kind enough to give me some concrete examples which would not come under cost, health or safety, or under an interpretation of what is undue or not. There will always a tribunal or someone who is not reasonable. We have had hanging judges, judges that sent innocent people to jail. We cannot help it.
Senator Jessiman: The courts have set out seven or eight criteria.
Senator Gigantès: Even with those, you do not get anything further than the capacity of a tribunal or a commission to be itself reasonable. You do not have to tell them to be reasonable. It is their job.
The Chairman: Senator Gigantès, thank you very much. We will ask the witnesses if they can perhaps provide this committee with something very quickly, overnight, because we will probably be doing clause-by-clause study on this bill tomorrow morning.
Senator Doyle: I am sorry that Senator Gigantès was in a hurry because I was going to ask our witnesses if they would turn to page 3 of their submission, where there are three court opinions presented from our edification. Do you not think they are a fair description of what you are advocating?
Ms Stairs: Yes, I think they are.
Senator Doyle: I wondered if Senator Gigantès had read those, because they seem precisely to answer his questions. When I first read them, I stopped a moment and thought about an entirely different matter, which was what had happened in the United States in the matter of suing medical practitioners, and how that situation, without words like "reasonable" to guide the courts that handled it, got to the point where now the price of the very insurance against malpractice is so high that people are leaving the profession. I thought you could always say that the Human Rights Commission has the right savvy, that they would not do what is unreasonable, that someone who is acting on their behalf would not advocate the wrong thing. However, there is always the possibility of an award being excessive and its being followed by an even more excessive award, whereas that might not be the case if what is reasonable had to be kept in mind from the start.
I cannot see why, in reviewing the bill, we could not, Madam Chairman, at least start them out with what is reasonable and see if it works. That is not so much a question as comment, but am I wrong?
Ms Stairs: We were of the same opinion that if you put the reasonableness factor in there, and let good, reasonable people make reasonable decisions, then you get away from the litigiousness of the rigidity, which, of course, as you say, has led to some problems in the United States.
Just as an aside on that, I also look after a bank in the United States and I just want to say how good and flexible our legislation has been and how interesting it is to work inside it, both the Employment Equity Act and the legislation dealing with human rights, because in trying to run the same kind of an enterprise in the United States under their legislation, which is much more fixed and litigious, it does not receive the same thinking and it does not achieve the same affect. Having the opportunity of running two operations, a bank in Canada and a bank in the United States, it is just so wonderful to have the Canadian legislation.
Senator Jessiman: It may be good for the banks but is it good for the people who are using the bank?
Ms Stairs: Absolutely.
Senator Jessiman: Are you telling us that you have made better progress in Canada?
Ms Stairs: As far as employees are concerned, yes. As far as women and aboriginal people, people with disabilities and people of visible minorities, we are making much more progress in our Canadian operation.
Senator Jessiman: Because of the flexibility?
Ms Stairs: Yes. It is really quite astounding. We have to fill out all these affirmative action forms and so on, and everyone focuses on the numbers and the quotas and the forms you have to fill out for the government and loses track of the feeling that is behind that. What Canada seems to have been able to do is go after the meaning and the intent. The whole banking industry has moved to having about 23 per cent of our senior executives being women. I think it is 17 overall because different banks have different percentages, but the figure in Canada is much higher than in the United States. One might think that the United States is doing better for women, but Canada is doing much better in the financial services industry.
Senator Cogger: This committee has heard testimony which was quite surprising. From one party we heard that the time frame between the filing of a complaint and the settlement of a complaint was something like nine months, and from another party we heard that it was more like 43 months to 48 months. What has been your experience? Collectively I suppose you have a great deal of experience with the Human Rights Commission. There is such a wide discrepancy between the one figure and the other. What has been your collective experience? Is it closer to 43 months or the nine months?
Mr. Finlay: I assume that the 43 months is how long it would take to get to tribunal. In the banking industry, I can think of only one case in the last six or seven years that has gone to tribunal. Within my own bank, we have never been to tribunal.
The Chairman: I should point out that we have received a letter from the Human Rights Commission on this particular point, which Senator Cogger is reading right now. I hope it clarifies the situation.
Mr. Finlay: Our experience with the commission, I should say, has been very positive.
Senator Cogger: It takes the commission, on average, nine months to investigate complaints; is that true?
Mr. Finlay: That would be about right.
Senator Cogger: Once they have investigated and satisfied themselves that there was a legitimate or an illegitimate complaint, then what? I am not particularly interested in how long it takes them to investigate. Nine months is a long period of time, by the way, but I am interested in the whole process. It does not do me any good to know there are nine months here and three months there.
One day the phone rings and you get a complaint and the clock starts ticking. By the time they call you back to say forget it or to insist on follow-up, and then the follow-up occurs, what time-frame are you talking about? Some of these matters began eight or nine years ago.
Mr. Finlay: The time-frame can range from a few weeks to, as it turns out, nine years.
Senator Cogger: Even the two weeks would be at the expiration of the nine months.
Ms White: We have had things take anywhere from a few months to several years. One key issue, which we take from our experience under the Employment Equity Act, arose where the complaint was not focused. There was not a specific issue to be addressed with one individual. It took a long time because we were effectively trying to boil the ocean as we looked at all the issues that may be issues to consider.
While we do not normally end up with tribunals, if we have a specific issue that has been raised by a complainant, we can usually get to it and resolve it.
We should focus on the outcomes. We should not look at who wins or at the balance but rather at our real objectives. Then we can more quickly and easily solve problems or complaints, whatever they might be.
Senator Cogger: Is it fair to say that, in your experience, a complaint will be settled more quickly or more easily if there is an identifiable party with whom you are negotiating, as opposed to the victimless situation?
Ms White: Absolutely.
The Chairman: I thank all our witnesses.
We will hear now from ÉGALE. Please proceed.
Mr. John Fisher, Executive Director, ÉGALE: Thank you for this opportunity to appear. I would underline at the outset that, as the Minister of Justice has acknowledged, Bill S-5 is part of a broader package of amendments to the Canadian Human Rights Act. There are a number of important issues which are not addressed by Bill S-5. We feel it is important that this bill be squarely placed within the context of that broader reform.
I understand that the minister will appear here this afternoon. I am sure she will want to address, in part, that broader package. It will be interesting and, in our view, essential to have some understanding of the time-frame within which that broader reform will be conducted so that the ongoing equality rights issues are not undermined as Bill S-5 works its way through the system.
Second, Bill S-5 is something of an omnibus package of reforms. It addresses a number of miscellaneous provisions, many of which we, as an equality rights organization, fully support. In particular, for example, the multiple-grounds clause, the increase on discrimination damages and the creation of the tribunal are very important and effective measures. However, the risk with an omnibus package is that particular provisions may be passed which, in and of themselves, could ultimately do damage to equality rights if they are not given full consideration.
Because this bill has arisen at first instance before the Senate committee, in our submission it is perfectly appropriate that the committee not be shy to amend the legislation to strengthen human rights protections. Usually, of course, when a bill originates in the House of Commons, it is the House of Commons committee which will pick over the specific provisions of the bill and make necessary amendments. In this case, because the bill falls to be considered here first, it is important and appropriate, in our view, that our proposed recommendations be considered at this stage.
Our particular concerns are summarized and developed in our submissions. We strongly believe that it would be very damaging to human rights protection in Canada if you were to accept the proposals put forward by groups like the Canadian Bankers Association who appeared prior to us. Removing altogether such factors as health, safety and cost would potentially open up the undue hardship defence to a very broad scope. We have specific concerns regarding the cost aspect of that defence.
We are also concerned about the regulation-making power which the government is seeking to claim for itself.
Our third concern is that section 16 of the act as it currently stands does not cover all the grounds in proposed section 3. We believe this creates internal inconsistencies. There are aspects of Bill S-5 which relate to section 16 and we believe it is appropriate at this time to take the opportunity to rectify that internal inconsistency.
Ms Pam MacEachern, Member, Legal Issues Committee, ÉGALE: I will speak specifically on ÉGALE's position with regard to the limits on the duty to accommodate, those factors being health, safety and cost.
ÉGALE is particularly concerned with those factors being unqualified and potentially open-ended. We take the position that cost ought not to be a limiting factor on human rights which should be fundamental to all Canadians. Many equality groups have made submissions to you submitting that the word "cost" should be removed completely as not being an acceptable limiting factor on the duty to accommodate.
We support that position but we are putting forward an alternate position today which is that, at a minimum, the word "cost" should have criteria attached which are in keeping with the guidelines under the Ontario Human Rights Act. Those guidelines specify that cost must be so substantial as to alter the essential nature or substantially affect the viability of the enterprise.
In the alternative to that, we would submit that, at the very minimum, the word "excessive" must be put in front of the word "cost."
Senator Cogger: You have "extreme" here in your brief.
Ms MacEachern: It states "excessive" at page 6.
Mr. Fisher: In our summary at the outset of our submission, we used the word "extreme" to indicate that some qualification is important. In the text of our submission, there are two proposals. One is the more detailed proposal about costs which would undermine the effectiveness of the enterprise; that is the phrase used in the Ontario guidelines. The alternative formulation suggested is "excessive." "Extreme" is a kind of summary of the two specific proposals.
Ms MacEachern: Without those qualifications on the word "cost," we submit that it will be open to employers to argue that even minimal cost is a limit to their duty to accommodate. We see this happening today under the Canadian Human Rights Act, even when there are no criteria of cost specified as a defence to a charge of discrimination.
We believe it is fundamental that Canadian society has accepted that equality is defined as substantive equality. It is not sufficient just to treat people similarly and expect them to achieve equality on that basis. We have recognized that sometimes equality means unequal treatment. Women, in particular, and other members of vulnerable groups, such as people with disabilities, are particularly aware of what substantive equality means and that only giving them formal equality does not give them equality at all.
We submit that if these provisions of cost are left unqualified, it will basically mean that those who can achieve equality by being treated just like everyone else will have the full protection of the Canadian Human Rights Act, whereas those who require accommodation to gain equality consistent with our substantive quality jurisprudence, will have only limited protection under the Canadian Human Rights Act, and the limitation will be cost. We submit that this is not equality.
It may be common ground among all of us here that a defence to a duty to accommodate must be something more than only cost. We submit that you should clarify that issue and establish the principle to be applied to the limiting factor of cost. We should not leave it to the courts. It is Parliament's duty to establish the principles and establish that by "human rights protection" and "duty to accommodate" we mean that a defence would require that the cost be excessive, or that it be under the more detailed description, which is that the accommodation is "so substantial as to alter the essential nature or substantially affect the viability of an enterprise." Those two specific proposals are contained at page 6 of ÉGALE's submission.
Mr. Fisher: To summarize, our concerns about the word "cost" being unqualified are even stronger in view of the fact that the government is claiming to itself, in proposed section 15, the right to make regulations defining what the standards are for undue hardship. As we know, in Ontario, the commission makes guidelines and has set the standard appropriately high for what kinds of costs are sufficient to relieve an employer of its obligation to accommodate the needs of disadvantaged groups. The government is itself, of course, a respondent in many human rights complaints, and to enable the respondent to identify for itself the standards by which it will be judged places the government in an extraordinary conflict of interest. Thus, we are seeking both to see cost qualified and to see the role of the commission strengthened in relation to the regulation-making power so that it is upon their recommendation that the Governor in Council is able to make regulations.
Finally, I addressed the issue around section 16 in my opening remarks. It is simply a question of taking the opportunity at this time to ensure that the act is consistent, that where there is a list of grounds in section 3, the same list of grounds should be the grounds applied in section 16. You will be aware that the courts, in the case of Haig, and more recently in the case of Vriend before the Supreme Court of Canada, have examined whether the legislation is unconstitutional if it fails to include all the disadvantaged groups.
We believe that the Canadian Human Rights Act, as it currently stands, by leaving out some grounds from section 16, is open to constitutional challenge. Rather than allow the act to continue in a possibly unconstitutional form, we should take this opportunity to link the grounds in section 16 -- the positive measures section -- with the grounds in section 3 so that the act is consistent.
That is a summary of our submissions.
Senator Cogger: I have a difficulty with the position you are taking. Maybe you can help me. You say, Ms MacEachern, that we should not leave it to the court. As I understand your submission, we should go a fair way to define the criteria, but I am not sure we would achieve much. For instance, if we were to go the route you suggest and throw at them, for instance, excessive costs, who is going to decide what is excessive? It would be the same tribunal, would it not? Philosophically I have difficulty with empowering a court or a tribunal to make those decisions. For instance, what would constitute undue hardship would then become an excessive cost; correct? Presumably, one could argue that a non-excessive cost, while perhaps a hardship, is not an undue hardship. In other words, I am afraid that we will get into a series of judgmental issues. The Supreme Court has said that the use of the term "undue" infers that some hardship is acceptable. It is only undue hardship that satisfies the test.
By the same token, if I were to apply this, you are saying to us that some cost is not acceptable. It is only when it becomes excessive that it would meet the further test. Are we not trying to do too much? I share your concern about the Governor in Council's unfettered power, as you referred to it, to make further regulations. I say leave those people alone. Give them the test of undue hardship and the power to look at all the facts and circumstances surrounding the situation and let them be the judges.
Do you think that position to be totally unreasonable?
Mr. Fisher: I would not call it totally unreasonable, senator. Our concerns around cost would not be as great as they are if the government were not simultaneously claiming the ability to define those standards through the regulation-making power. As it stands, however, even with the cost defence being currently undefined in the legislation, it is true that any test which is determined by Parliament is subject to interpretation by the courts. We are saying that we should give it the greatest degree of clarity possible.
For example, if we accept the submissions of the Canadian Bankers Association that we remove the factors of health, safety and cost altogether, there is no restriction on what could constitute undue hardship, and that would really leave the human rights of disadvantaged groups open-ended. We would not know what we are entitled to expect; employers would not know what their responsibilities were.
Senator Cogger: You are suggesting that for their own reasons the banks want that out. Some people may wish to add health, safety and cost, and then social conditions, et cetera. Where does it end?
Mr. Fisher: It certainly seems to me that those groups seeking to remove factors like health, safety and cost are not making that submission because they want to see a higher level of human rights protection. They want those factors removed in order to have the standard they are required to meet be not as extensive as it would otherwise be.
Our concern is that we strike a reasonable balance and that we say what we mean. Presumably we are all in agreement that minimal cost will not be sufficient to enable employers to avoid their human rights responsibilities. Minimal cost would mean mere business inconvenience. Every kind of accommodation will have some small cost factor attached to it.
Senator Cogger: Minimal cost to the Bank of Montreal may be extreme or excessive to the corner store operator.
Mr. Fisher: Exactly. Ultimately, the courts will have to make that decision.
Senator Cogger: What I am asking is, once you have done that, have you achieved anything by throwing in words like "extreme" or "excessive"?
Mr. Fisher: I believe so. Certainly, the Ontario Human Rights Commission thought it was worthwhile to issue guidelines describing what they mean by "cost" and giving some standards by which that could be measured.
Obviously, a court will still have to determine what degree of cost constitutes excessive cost. However, that is a higher degree of protection than if it is simply left with the open-ended provision of "cost" under which it is not known whether we mean cost at the low end of the scale or at the high end of the scale.
The government, in formulating Bill S-5, has inserted a preamble which addresses their wish to strengthen the rights of people with disabilities and strengthen the protection for disadvantaged groups. I do not see that they will have been strengthened if we leave them with a minimal, undefined and open-ended standard of cost, and if an unfettered right is given to government to determine that level of protection.
Senator Cogger: Could you expand on the other wording which you propose?
Ms MacEachern: The other wording is set out in the summary.
Senator Cogger: I am not referring to the use of the word "extreme," but rather where the issue of virtually endangering the survival of the company is addressed.
Ms MacEachern: At the summary of the recommendations, on page 10, it is set out. It mentions a cost which is so substantial as to alter the essential nature or substantially affect the viability of the enterprise.
Senator Cogger: Are you seriously suggesting that is what you would like to see as the definition of "cost"?
Ms MacEachern: That is what the Ontario Human Rights Commission has adopted under its guidelines as the criteria for undue hardship. We submit that it is a helpful description to add to this legislation, to provide more guidance as to what is meant by the term "cost."
Senator Lewis: Regarding the power to make regulations, on page 7 of your brief you have made the suggestion that section 15(3) of the act be amended to provide that upon the recommendation of the Canadian Human Rights Commission, the Governor in Council may make regulations providing standards for assessing undue hardship.
This would seem to take it out of the hands of the Crown entirely, except that the Governor in Council would have a discretion to make regulations. There would be a discretion there. However, if they were to exercise that discretion and make regulations, it would only be on the recommendation of the commission.
Mr. Fisher: That is correct. In other human rights codes, so far as we are aware, the government has not claimed for itself an ability to define the standards by which they should be judged.
Obviously, the government always has the ability legislatively to pass further amendments if it chooses to alter the standards or to introduce new standards by which it could be judged. That is subject to the democratic process and to a vote in the House of Commons and the Senate.
What we are seeking to do with this amendment is to enable the government, through the Governor in Council, to make those regulations. We propose that if the Human Rights Commission identifies a need for further clarification, then they may make that recommendation to the Governor in Council and the regulation making process would begin. However, we believe that the Human Rights Commission is best placed and does not have the same conflict of interest to make that recommendation and set the process in train.
Senator Lewis: Your suggestion is that under proposed subsection 15(7), the Governor in Council be empowered to make regulations under proposed subsection (3) consistent with the report of the commission after six months have elapsed since the publication of the proposed regulations.
In the bill, proposed subsection (7) provides that the Governor in Council may proceed to make regulations after six months have elapsed since the publication of the proposed regulations whether or not the report described in the proposed subsection has been filed. However, your suggestion is that there not be any such provision. It would be just after six months have elapsed since the publication of the regulations.
Mr. Fisher: That is correct. As it is currently formulated, the consultation process can be nothing more than tokenistic, given that the Human Rights Commission is empowered to hold public consultations and then the Governor in Council may proceed to make whatever regulations it likes, whether or not there has been a report of the Human Rights Commission. The regulations may bear no resemblance to the report that the commission has filed. We would prefer to see that the regulations actually have some connection to the public consultation process and the Human Rights Commission recommendations.
I should say that the two amendments we are suggesting to these provisions form an alternative position. We would prefer to see both put in place. We would prefer to see the Human Rights Commission as the body that makes recommendations which start the regulation making process and we would also prefer at the end of the day that the regulations adopted respect the recommendations of the Human Rights Commission.
If the committee was not inclined to go that far, we feel that at the least the first part should be amended so that it is the Human Rights Commission that identifies the need for regulations and recommends to the Governor in Council that they proceed to be put in place.
The amendment to proposed subsection (7) is something we would very much like to see. We believe it is an important part of the process. However, we would at least like to see the amendments to proposed subsection (3).
Senator Lewis: It may be that if the commission did not make any recommendation, then the Governor in Council could not make any regulations.
Mr. Fisher: We believe that the logical process, once the process kicks in, is that the commission hold public consultations and issue its report and then for regulations to be made respecting the conclusions in that report.
You are correct in saying that it would be left to the good offices of the commission to follow through with that public consultation process and issue a report. If it was felt necessary, one could add a clause there to indicate that the commission is obliged to file a report within a particular period of time. Six months is not a long period of time; I would prefer a year. However, if it was felt that it could not be left up to the commission to file its report, then one could indicate that they had an obligation to file within a certain time.
Senator Doyle: Thank you for your candour here this afternoon.
I do not see any defence here in your brief of the word "reasonable." We have spent significant time discussing this issue before you came to the table. I am on page 8 of your brief at the moment, under "Commentary," on your definitions of "costs" and "undue hardship."
The Chairman: Those are the Ontario guidelines you are reading.
Senator Doyle: Are you willing to accept the Ontario guidelines?
Mr. Fisher: Yes.
Senator Doyle: I will stay with them since I am from Ontario. It says that so substantial a cost could be incurred that it would alter the essential nature of the enterprise.
At the time we were discussing "reasonable," we were talking about the banks. Costs would have to be pretty high before the essential nature of the way the banks operate would be changed.
You are leaving an enormous amount to accommodate without any other consideration, other than the fact that the person does have a handicap. You are allowing an expense that would in time be self-defeating. Let us assume you have to import a piece of machinery to deal with one person's capacity to raise his or her arm. I have a handicap myself, so I am a little sensitive to this issue. However, if you spend almost anything but a reasonable amount of money, often enough you soon either bankrupt the enterprise or you start to change the nature of the operation.
Do you not see the risk in that kind of description of what would be allowed?
Ms MacEachern: I do not think it would bankrupt the business because that would be caught in the definition.
Your reference to banks is interesting, and reference to this was made by Senator Cogger as well. Obviously the duty to accommodate faced by someone who has a one-person business with a very small profit base will be different from that face by an international bank which reports profits in excess of $1 billion per year. The duty to accommodate will be different. That is the premise that I accept.
Maybe I am putting words into Senator Cogger's mouth.
Senator Cogger: The duty is the same. The defence of undue hardship will be very different.
Ms MacEachern: The defence of hardship will be very different. I stand corrected. That is something that we accept, given the premise of equality that we have embraced as a society. There will be different defences of undue hardship, depending in part on the nature of the business enterprise and also depending in part upon the necessary accommodation.
Senator Doyle: I think I understand your position.
The Chairman: I have a follow-up to the question asked by Senator Lewis, regarding the power of the Governor in Council to make regulations. If we took that out of the act or expanded it by adding the Canadian Human Rights Commission, we would certainly be breaking new ground for any kind of legislative process here in Canada. I understand that all acts, when they are passed, are operated through regulations formulated and announced by the Governor in Council. This bill, in effect, broadens that concept to a certain degree by saying that the Governor in Council "shall" conduct public consultations -- not "may" but "shall." They are required to do to so. What is your response to that? Does this begin to ease your feelings of unease about this process?
Mr. Fisher: Not particularly. The concern we have, and the reason we are proposing the modifications that we are, is that the public consultation process is added in there to be conducted by the Human Rights Commission. However, the Governor in Council is empowered to start the process on its own initiative regardless of what kinds of regulations it is proposing or what it hopes to accomplish. At the end of the day, it is free to ignore the consultation process and issue whatever regulations it wishes to make.
We are quite comfortable with the process by which the Ontario Human Rights Commission, for instance, developed and issued the guidelines attached to our submission. We believe the commissions are well placed to hold consultations, to develop guidelines and to deal with human rights issues on a daily basis. They do not have the same interest in the outcome as does the government.
We are concerned that the government is claiming this ability for itself, and only in relation to the standards for processing undue hardship.
There are many principles in the act, and it is not clear to us why the government focuses on undue hardship and says, "We want to be able to determine how high or how low that power should be set in relation to that one principle." If they feel they have a role in making general regulations, that is one thing, but it raises concerns for us.
Throughout the consultation process with equality groups, the government resisted strengthening words such as "cost" and also resisted controls on the power to proscribe the standards by which costs would be determined. We have serious unease with the way it is currently structured.
The Chairman: Your group and some of the human rights groups appearing before us have asked that the definition of "costs" be strengthened by adding "excessive." The Canadian Bankers Association suggested that we take it out entirely or make it "reasonable costs." Do you not feel that perhaps by talking about undue hardship, the bill as it stands comes down in the middle of these two positions?
Mr. Fisher: Perhaps it does. Our position is that it is not the role of human rights legislation to make everyone happy. It is not the role to make happy those who will discriminate as well as those who will be discriminated against. The role of human rights legislation, as recognized in the preamble to both the Human Rights Act and Bill S-5, is to strengthen human rights protection so that no Canadian in the work place will be discriminated against or find their human rights violated because of minimal costs or processes where those rights are not fully respected. For that reason, we believe the intention of Bill S-5 as it is currently structured is to please both sides, when it ought to be designed to protect human rights.
The Chairman: Thank you very much for your presentation. You have added to our discussions. If you wish to stay and listen to what the Minister of Justice has to say, please be our guest.
Mr. Fisher: I would be pleased to do that.
The Chairman: We have the Minister of Justice before us and I will turn the floor over to her. I have warned senators that they may have one question on a first round and if we have time, we will get to a second round of questions.
[Translation]
The Honourable Anne McLellan, M.P., P.C., Minister of Justice and Attorney General of Canada: Madam Chairman, I am happy to appear today before your committee for the first time to speak on Bill S-5. The general purpose of this bill is to improve access for the disabled to the justice system, employment and goods and services.
It is important for our society to recognize and encourage the significant contribution made by the four million disabled Canadians accounting for almost 6 per cent of the total population. That is why this bill is of great importance, not only for the disabled but also their families, friends, employers and colleagues.
[English]
An identical bill to the one you are considering here today, Bill C-98, was introduced in the previous session of Parliament but died on the Order Paper at dissolution. The government promised to reintroduce that legislation on a priority basis, which is what is being done now with Bill S-5.
In the Speech from the Throne, we promised to continue to work with the provinces to promote the integration of persons with disabilities into all aspects of Canadian society. This bill is an integral part of an ongoing and concrete commitment to deal with barriers to access for persons with disabilities.
Bill S-5 has been several years in the planning. Efforts include the national strategy for the integration of persons with disabilities, leading up to Bill C-78 which came into force on June 30, 1992. This policy development work included broad and inclusive consultations with the disability community, equality-seeking groups, employer groups, the police and the defence bar.
As you know, a federal task force on disability issues, chaired by the Honourable Andy Scott, tabled its report last fall. That report was entitled: "Equal Citizenship for Canadians with Disabilities: The Will to Act." We believe that Bill S-5 speaks to our government's will to act.
Among many other recommendations, it called on the federal government to introduce amendments to the criminal law and to human rights legislation. Bill S-5 constitutes the federal government's response to the task force's recommendations. It proposes amendments to the Canadian Human Rights Act, the Canada Evidence Act, and the Criminal Code.
First, I will briefly review the amendments to the criminal law contained in Bill S-5. This bill contains five areas of reform relevant to the criminal law. A new provision in the Canada Evidence Act would ensure communication assistance to a witness who has a disability affecting communication. This would allow, for example, the use of sign language interpretation by deaf witnesses and the use by hard-of-hearing persons of real-time written interpretation and assistive listening devices or oral interpretation.
A second amendment to the Canada Evidence Act would allow witnesses the use of alternative methods of identification of the accused, using auditory or tactile needs, for example.
The third amendment contained in Bill S-5 in respect of criminal law reform would create a new provision in the code to make it possible for witnesses with disabilities that make communication difficult to testify by means of videotaped evidence. Recourse to videotaped evidence would be possible in the case of certain specific offences relating to sexual abuse, pornography, prostitution or assault. A related provision is also included to restrict the use of the videotape to its intended purpose in order to safeguard against possible misuse.
Fourth, a whole set of amendments to the Criminal Code has been designed to ensure that persons with disabilities are provided with an equal opportunity to participate on juries. In addition, related amendments would be necessary to provide for the presence of interpreters who are giving support to a disabled juror. These attendants or interpreters would have to respect the obligation of non-disclosure of jury deliberations, as well as the obligation not to interfere with, or unduly influence, jury deliberations. These amendments make it quite clear that attendants or interpreters will not constitute a thirteenth person on the jury. Their role is clearly limited to assisting disabled jurors.
This has been an issue raised by some of the witnesses, especially witnesses from the Quebec Bar Association, who appeared before you. I wish to reassure you in relation to the government's intention regarding the concern about the possible creation of a thirteenth juror. I think it is a reasonable concern for the Quebec bar to raise but it is one that, in the context of the proposed amendments, is unfounded and one that we believe that we have dealt with adequately. However, I would be interested in hearing your views on that point.
Finally, Bill S-5's last criminal law amendment would create the offence of sexual exploitation of persons with disabilities who are in situations of dependency. Hence, vulnerable dependent adults with disabilities who are sexually exploited, for example, by their caregivers, would receive a needed special protection against this kind of abuse.
The criminal law amendments proposed in Bill S-5 have the support of the disability community. They are also generally supported by provincial and territorial jurisdictions, the defence bar and law enforcement officials.
As indicated earlier, Bill S-5 also contains important amendments to the Canadian Human Rights Act, first introduced in 1977.
The introduction of the Charter, development of case law, amendments to provincial human rights legislation and the recommendations of various parliamentary committees have touched on all aspects of the act. The purpose of the current amendments is to bring the act in line with at least some of these developments.
Some of the important elements of these amendments are the addition of an express duty to accommodate, the restructuring of the adjudicative process, and the strengthening of the remedial powers of the tribunal, particularly in respect of the dissemination of hate messages.
The bill would also enable the Canadian Human Rights Commission to report directly to Parliament rather than through the Minister of Justice.
I have noted that almost all of the witnesses before you were in favour of the basic thrust of the reforms to the act.
I am also sure that some people would like to have seen more changes to the act. However, given that successive governments have indicated that they would act on specific recommendations to amend the act, I believe the proposals that have been tabled cannot be delayed any longer. Other issues can be addressed, and let me reassure this committee they will be addressed, in a future, broader review of the act. I note that there may even be some scepticism about when that broader review is apt to happen because it, too, has been promised on a number of occasions.
What we have before us today is an important part of that process, but it does deal with specific issues that we believe we must move on now. I do want to reassure members of this committee that a broader review is very much in the plans of the Department of Justice and in my own plans as Minister of Justice.
I have followed the committee's deliberations with interest and have observed that a number of questions have been raised about the human rights amendments. I should like to discuss some of the main elements of the reforms we are proposing and some of the questions that have been raised by witnesses before my appearance here.
I am aware that suggestions have been made for new provisions to be added to the bill. I will also, perhaps, spend a few minutes speaking about that.
The key element of these amendments to the Canadian Human Rights Act is the addition of an express duty to accommodate. The duty of accommodation requires employers and service providers to accommodate persons protected under the act up to the point of undue hardship, taking into account health, safety and cost.
Some witnesses have testified that this bill will introduce a new factor of cost into the duty of accommodation and will thus weaken the duty of accommodation and the protection offered to persons with disabilities, while some others feel that the duty may, in fact, be too onerous or too strong.
It has also been suggested that cost be qualified by the word "excessive." Other witnesses have urged the committee to add that to the list of factors, while others have argued that the list should be restricted with the deletion of "cost."
Some witnesses thought the enumerated factors adequately define undue hardship, while some witnesses have asked that all the factors be deleted so that employers and service providers would accommodate up to the point of undue hardship.
Madam Chairman, I should like to say, first, that cost is not a new factor in assessing the duty to accommodate. It is already in the law, both as a result of court decisions and as a result of statutory provisions.
The Supreme Court of Canada has stated in decisions such as Central Alberta Dairy Pool v. the Alberta Human Rights Commission that cost is one of the factors to be considered in assessing undue hardship.
In the recent case of Elderidge, the Supreme Court of Canada considered cost as a factor in the duty to accommodate.
The Ontario Human Rights Code, enacted in 1986, lists cost, health and safety as factors to be taken into account in assessing undue hardship.
I also believe that it is not necessary to qualify cost. The bill expressly provides that employers and service providers must accommodate, unless it would cause them undue hardship. "Undue" and "excessive" are synonymous.
Undue hardship has a history in the courts, which have made it clear that this is a serious obligation and that it is not just any cost that will justify not accommodating someone. This bill codifies a strong obligation on employers and service providers to accommodate.
In my view, health, safety and cost as factors for assessing undue hardship address the key issues in applying the duty to accommodate. I believe that these factors provide a reasonable balance to ensure that the needs of persons with disabilities are addressed and at the same time to provide sufficient flexibility for employers and service providers. A similar duty to accommodate has existed in the Ontario legislation since 1986. This has not created unreasonable burdens on employers and service providers.
Tying into the issue of factors for assessing undue hardship is the regulation-making powers of the Governor in Council. I will spend a few minutes speaking about this. The bill gives powers to cabinet to make regulations prescribing standards for assessing undue hardship. This provision seeks to further elaborate the standards for assessing undue hardship in a flexible and responsive way as accessibility standards evolve, as they undoubtedly will. In our view, regulations are quicker and easier to put in place than amending legislation or embarking on litigation to determine the issue.
At the same time, I would note the public and the commission are important partners in the development of regulations. The bill clearly provides that any proposed regulation shall be published in the Canada Gazette and interested persons be given an opportunity to make representations in respect of them. Also, the bill requires that every proposed regulation must be subject to public consultation by the commission.
I should like to emphasize that these provisions are mandatory. Vesting this power in the government signals that human rights laws should be and are developed while taking into account the national interest.
Madam Chairman, one other important amendment to the Canadian Human Rights Act is the restructuring of the Canadian Human Rights Tribunal. The present ad hoc adjudicative system will be replaced by an efficient, dedicated, small and permanent tribunal.
Almost all witnesses before the committee saw it as a means to eliminate scheduling delays and long time lags in hearing cases. Moreover, it would enable the members an opportunity to develop the in-depth expertise necessary to deal with complex cases that appear before them with more regularity.
I am, however, aware that questions have been raised about the legal qualifications required for the chairman, the vice-chairman and two of the other 13 members. There are a number of reasons why this provision is included.
Proceedings before the tribunal have become more legalistic, and those of us who have followed and studied the work of the Canadian Human Rights Tribunal over the years see that. We may question whether it is good or not, but there is no question that the proceedings have become more legalistic over the years.
Increasingly, the tribunal must address complex issues of law and questions of procedure and evidence. Furthermore, other federal legislation can be challenged under the Canadian Human Rights Act before the tribunal. It is my view that having legal representation on the tribunal would, therefore, be helpful.
I should also like to point out that the legal requirement applies to only 4 of the 15-member tribunal, leaving the other 11 members who do not have to be lawyers. However, as the act stipulates, all 15, whether legally trained or not, must have a sensitivity to, expertise in and a commitment to human rights.
Another amendment is the proposal to allow complaints of discrimination in the provision of goods and services to be remedied where no individual complainants have come forward. This provision is not meant to be used in addressing hypothetical cases or going on fishing expeditions, if you like. A complaint can be filed under this proposal only if there are reasonable grounds for believing a person is engaging or has engaged in a discriminatory practice. In addition, the commission has the power under section 41 of the act to reject frivolous or vexatious complaints or those made in bad faith, and this is a power that we know from past practice that the commission uses.
This provision affords the commission a vehicle with which to deal with problems relating to availability of goods and services in a more systemic way. We are all aware of the fact that there is a particular challenge we need to acknowledge when dealing with structural or systemic discrimination, and perhaps that kind of discrimination is not always achieved or dealt with best through an individual complainant. Perhaps there may be other ways, and we are proposing one by which we could get at structural or systemic discrimination that affects an entire system or institution.
This provision also brings the treatment of complaints in the provision of goods and services in line with the treatment of complaints in the employment area. Presently, the act allows complaints against discriminatory employment policies even where no specific victim has been able to come forward. There is no evidence that this has been used improperly in the employment context. I am of the view that there is no basis for distinguishing between employment and the provision of goods and services.
Madam Chairman, these are only some of the key provisions proposed in the bill. Time, obviously, does not permit me to discuss all of the proposals. I will move on to new issues that have been raised in the course of your hearings.
Relying on the New Brunswick Human Rights Act, Senator Kinsella has asked if it would not be advantageous for employers and service providers to find out in advance from the Canadian Human Rights Commission whether or not their policies and practices conform to the duty to accommodate standard and, thereby, avoid litigation.
Senator Kinsella has raised an interesting and challenging issue. In my view, this involves more than the duty to accommodate; it relates to all aspects of the Canadian Human Rights Act. It affects the role of the commission in administering the act and raises procedural issues. It is our intention to deal with these issues in the planned future broader review to which I have already alluded.
For now, I believe that it is not necessary to give this kind of mandate to the commission. As indicated by Madam Falardeau-Ramsay when she appeared before you, sections 17 and 18 of the Canadian Human Rights Act authorize the commission to approve a plan in advance to deal with accommodation plans. In addition, she advised that because it is in constant consultation with organizations regulated under the act, the commission is able to handle long-term plans dealing with accessibility issues which, in the long run, one hopes, and we have seen in past practice, will avoid unnecessary and costly litigation.
In her presentation to the committee, Professor Jackman told the committee that the omission of social condition as a ground of discrimination under the act violates section 15 of the Charter. She urged the committee to add social conditions and poverty as a ground for discrimination under proposed section 3.1 of the bill. With respect, I am not certain that the Charter requires that human rights legislation address this issue. In any event, the department needs to look more closely at this issue in consultations with interested groups and individuals, and this will be done in the proposed broader review.
In closing, I believe that the proposals in Bill S-5 are important and necessary steps for all Canadians and, in fact, some Canadians, especially the disabled community, have been waiting for these changes for a long time.
In the words of Mr. Justice La Forest in the Elderidge case, an unfortunate truth is that the history of disabled persons in Canada is largely one of exclusion and marginalization. Bill S-5 demonstrates the government's commitment to build an inclusive society in which disabled persons have equal access not only to employment but also to the provision of goods and services as well as being equal participants in the judicial system, something from which, quite truthfully, they have been largely excluded for 130 years, an inclusive society in which the participation of persons with disabilities is not based upon their emulation of able-bodied norms.
These proposals strengthen the values underlying the Canadian Human Rights Act, the equality provisions of the Charter and the belief by Canadians that all persons are equally deserving of concern, respect and consideration.
With that, Madam Chairman, I conclude my preliminary remarks. I would be happy to entertain your comments and any questions you may have. I also have officials here from my department to assist me with any of the more technical questions that I might not be able to answer.
The Chairman: Thank you for your presentation.
Senator Jessiman: Madam Minister, a number of the amendments you outline to the Canada Evidence Act and the Criminal Code have cost implications to the provinces. For example, it seems that costs associated with accommodating the communication needs of witnesses for the prosecution would be absorbed by the provinces, given that they are responsible for the administration of justice.
Do you have an agreement with the various provinces in respect of these things?
Ms McLellan: I will let my officials answer that question in terms of the specifics, but let me say that this is a question to which I am sensitive, and it is an important question. This subject comes up in this and other areas. For example, in immigration, due to federal laws and, perhaps, changes in those laws, there is the very real likelihood of creating additional costs for the provinces which, as you rightly pointed out, are constitutionally responsible for the administration of justice. As you might imagine, it is a matter on which I am in constant dialogue with my provincial counterparts. As recently as two weeks ago, the Attorney General of Ontario and I were discussing this subject in another context.
This is an important issue, one in which I am engaged in discussions with the provinces. I will continue to do so. However, I would be untruthful if I told you that the justice ministry or the federal government had significant additional resources to accommodate some of the proposals we are outlining.
Provincial Attorneys General have found within their budget over the years the ability to, for example, accommodate those who are in wheelchairs and others with accessibility issues to ensure that there has been some limited participation on the part of those with disabilities or other limitations.
However, I cannot deny that you raise an important issue. I cannot promise substantial additional resources flowing from the federal government to help the provinces.
Mr. Mark Berlin, Senior Counsel, Criminal Law Section, Department of Justice: Briefly, the technical amendments to the Criminal Code and the Canada Evidence Act are, for the most part, a codification of practice that is ongoing in courts throughout Canada.
Senator Jessiman: New things arose as a result of the Elderidge case as well.
Mr. Berlin: You are right, senator.
Senator Jessiman: I should add, as part of the same question: In your department, have you assessed the extra cost as a result of the amendments to the act? Do we know what the costs will be, or are we still assessing that?
Mr. Berlin: It is an ongoing process. From our discussions with the provinces to date, we have been told that the costs of the administration of justice have been a cause for concern for many years. These costs have been borne by the provinces for a number of years. They have not isolated them for us in particular and said, "We spent this much on jury attendance, and we spent this much on communication assistance." We are fairly certain in our discussions with the provinces, however, that the extra costs are minimal, given the overall cost of the administration of justice.
Further, the Elderidge decision to which you referred makes it quite clear that any additional minimal costs to the provinces are to be borne as being appropriate accommodations to be made for persons with disabilities. That is exactly the point under Elderidge vis-<#00E1>-vis assistance for interpretation services under the Medical Services Act of British Columbia. We feel that we have the support, if I can, by extrapolation from the court for these additional costs.
Senator Jessiman: It is easy for the court to say what the provinces should pay.
Ms McLellan: While it is probably true at this point that the provinces think that the costs will be minimal and that they can be absorbed, I know full well that if that does not turn out to be the case, I will hear right away. That will then become an ongoing discussion between myself and my provincial counterparts, in terms of what those additional costs are and whether they are in any way unreasonable and should not be absorbed as part of the normal costs of the administration of justice.
Of course, the relationship between the federal and provincial governments, in terms of the justice system, is one that has worked at a high degree of integration and cooperation. We are generally able to deal with these issues in a way that ultimately is acceptable to both parties and meets their needs, therefore I do not anticipate major problems unique to these amendments. However, the issue you raise is one of more general concern that I will potentially have to deal with as Minister of Justice.
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Senator Beaudoin: The chairman of the Human Rights Tribunal explained that the practice is to have panels presided by members who are lawyers, something I agree with completely. The Quebec Bar made a suggestion to this effect. As a jurist, would you be willing to include this in the Act or leave it up to practice?
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Ms McLellan: I would probably leave it up to practice. The point is a good one. I honestly believe that it makes a lot of sense to have a legally trained person chairing a panel. As I have already said, these hearings, for better or worse, are becoming highly legalistic. There are points of evidence and procedure that can derail an entire panel hearing. It is beneficial to have someone chairing the panel who has the necessary legal knowledge to be able to deal with procedural and evidentiary issues -- obviously not unilaterally, but in partnership or in conjunction with their fellow panel members.
We all know the kinds of questions that are raised and we all know how lawyers raise these questions. I say this as a lawyer. I do not mean to suggest that any lawyer would come before a panel and raise procedural motions or issues for anything other than bona fide purposes in representing his or her client to the best of his or her ability. However, these are often very complex and difficult issues, even before one gets to the substance of the allegation of discrimination.
Therefore, it is beneficial to have at least one legally trained person sitting on any panel, and it makes good sense to have that person as chair of the panel.
Senator Beaudoin: I cannot agree with you more. However, do you not want this to be enshrined in the statute?
Ms McLellan: I do not think it is necessary. In the operation and administration of the tribunal, that can be one of those operating principles, if that is the decision made by the chairman of the tribunal and his or her fellow members.
It does not need to be in the legislation, but I do think it would be good as a principle of operation or administration. Obviously, the tribunal develops those principles on which they operate, and if they felt that that was the most efficient, expeditious way to conduct their business, that could be one of their operating principles.
I am not sure it is the kind of thing which requires legislative sanctification.
Senator Beaudoin: It is because that tribunal, which I realize is administrative, is applying the Charter of Rights and Freedoms.
Ms McLellan: It is.
Senator Beaudoin: It is a very important responsibility to apply the Charter of Rights and Freedoms to legislation. Anyway, that is a huge debate, and I do not want to open it. I know now that the Chief Justice of Canada is thinking twice about this question of enabling administrative tribunals to apply the Canadian Charter of Rights and Freedoms.
I am of the same opinion. I know it is quite debatable, but I am inclined to think that the application of the Canadian Charter of Rights and Freedoms and the Constitution should be left to the courts of justice and not to administrative tribunals. However, that is another debate.
Ms McLellan: That is a debate, senator, that you and I could have, and probably would have, if we were in our previous lives as professors of law. However, I do know what you were alluding to when you were referring to the Chief Justice. There has been some recent jurisprudence from the courts where one starts to see a certain concern in terms of some of the earlier decisions of the Supreme Court of Canada that, of course, did open the door to administrative tribunals applying the Charter and making decisions on the basis of the Charter.
Whether the Supreme Court chooses to provide further guidance and clarification in that area is obviously up to them, but your point is a good one. It speaks to the fact that you do need some people involved in this process of decision-making on these panels who are legally trained. Even those of us who are lawyers sometimes take delight in beating up on lawyers, but, at the end of the day, lawyers are skilled people who bring a set of abilities and talents to a dispute or concern or complaint, and we should never underemphasize or minimize the importance of those skills in helping people reach fair and just results. That is why I believe we need some people on this tribunal who are legally trained.
Senator Lewis: My question is in respect of the regulation-making power contained in the proposed amendments to section 15, particularly subsections (3) and (7). Those proposed subsections would give the Governor in Council the power to make regulations and provide for consultation by the Human Rights Commission, and then after six months, proposed subsection (7) provides for publication of the proposed regulations. It was suggested to us this afternoon that this be amended so that the Governor in Council would be empowered to make regulations but on the recommendation of the Canadian Human Rights Commission.
The way I read that, it would be only on the recommendations of the commission. Further, the Governor in Council may proceed to make regulations under subsection (3) consistent with the report of the Canadian Human Rights Commission after six months have elapsed from the publication of the proposed regulations. This would seem to restrict the power of the Governor in Council. It seems a startling proposition. What are your views?
Ms McLellan: It most certainly would restrict the powers of the Governor in Council. Presently, the power, as proposed, is that the Governor in Council may make regulations. The commission plays an important role in terms of conducting public consultations. The Minister of Justice would provide his or her best advice to the Governor in Council regarding regulations. That advice would be informed by public consultations conducted by the commission and influenced by the commission's own thoughts, experience, past involvement, et cetera.
The locus of power would be changed in that the initiating body would then become the commission and not the Governor in Council. We have specifically proposed that the emanating "mind" not be the commission but the Governor in Council. There is a very close relationship between the two bodies which respects the particular expertise and the ability of the commission.
At the end of the day, these regulations would be made by the Governor in Council where ultimate political accountability must rest.
Senator Doyle: Will the minister will be hospitable to amendments to the bill when we come to clause-by-clause consideration, as we will this week?
Ms McLellan: Honourable senators are reviewing this bill. You have every right to propose amendments to the bill. I would in no way want to impede or restrict, even if I could, your ability to do that. You have heard the witnesses. You have had the opportunity to review the legislation.
I have proposed, on behalf of the Government of Canada, how we should like to amend the Criminal Code, the Canada Evidence Act and the Canadian Human Rights Act. However, I do not pretend that we are the fountain of all wisdom and that our proposals represent the only way that things could be done. If this committee believes that it is possible to achieve the objectives which I am sure we all share in a way that is more reflective of rights of interested parties, that is, more efficient and cost effective, then certainly I would be very open to considering those amendments.
Senator Doyle: Those are the most welcome words I have ever heard on this committee. I assure you we are not thinking in terms of standing the bill on its head -- this is not Bill C-220 -- but we have been having a discussion about the use of the word "reasonable" and we have not resolved that.
Ms McLellan: Yes.
Senator Doyle: Senator Cogger has been raising interesting questions on the time taken to complete cases before the tribunal. We are asking if there might be some way in which we could encourage shorter times between the laying of complaints and the satisfying of the customer.
Ms McLellan: Your last point is interesting. It raises a general concern, but here we are looking at it in the specific context of human rights tribunals. That is the whole question of the timeliness of justice. If justice is not timely, it is justice denied. Therefore, it is an important issue and one which we need to consider. That is one of the reasons we have decided to change the tribunal structure and go to the 15-person, permanent body.
We can all point to examples of delays, probably unacceptable delays, due to the fact that one did not have a permanent group of people whose full-time commitment it was to sit as a panel, deliberate upon the issues and reach a result.
From my own experience, I know that law professors were often chosen as panel members. While my colleagues and I undoubtedly brought a certain level of ability and expertise to those kinds of panel proceedings, it was not our full-time job. Panel hearing dates got twisted around to accommodate the schedules three or four people, all of whom had other full-time jobs. It is no wonder things were delayed. It is no wonder proceedings went on for weeks. If a hearing had to be interrupted, you might not be able to schedule a hearing date to continue for months down the road. If someone says that is unacceptable, I could not agree more.
Justice delayed is justice denied. We want to ensure that these hearings are run in an expeditious fashion. Certainly, the chairperson of the tribunal should fully understand, in the organization of the activities of this reformed tribunal, the importance of the value of timeliness.
The Chairman: Minister, we have not touched today on the aspect of victimless complaints. Several of the witness groups have represented that this provision is very important in this bill. The Canadian Bankers Association, though, said that one of the fundamental principles of Canada's system of justice is the right of an accused to know his or her accuser. They are recommending that clause 5 of this bill not be added to the list of areas in respect of which a complaint can be made where there is no identifiable victim. What would your reaction be to that statement?
Ms McLellan: We believe there is value in having a process that can supplement the individual-complainant-driven process. It is true, as the bankers' association and others are saying, that our justice system is primarily based upon and propelled by individual complainants of people who might be described as victims. Depending on the outcome of litigation or tribunal hearings, they would be found to be victims.
No one would deny that ours is largely but not exclusively an individual-complainant-driven system of justice. We are trying to address the situations which deal with a potential violation of rights, especially as it may relate to a systemic or structural violation. In such a situation, it may not be best to have an individual complainant, even if one could be identified. It may be better that the complaint is raised by others as a more broadly-based concern, for example, about how an institution has organized its hiring practices. Maybe it is not always necessary to have an individual, who feels he or she has been discriminated against by those policies, bring that complaint forward. Perhaps a tribunal could be asked to look at the hiring practices and policies of an entire industrial sector, for example. There may be systemic or allegedly systemic barriers that have created impediments to people with a certain disability, colour, race, or whatever the case may be, and maybe the best way to look at those barriers is not through an individual complaint, because the essence of the systemic or structural problem may be missed if you focus on the individual complaint or complainant.
That is why we wanted to include this aspect in the proposed legislation. As I understand it, this brings this aspect of the code into conformity. We are amending the legislation to apply to goods and services, which juxtaposes with the existing provisions as they relate to employment where it is not presently necessary to have an individual complainant drive an inquiry.
Senator Cogger: On that point, assuming it is systemic, surely it would be all the more easy to identify victims, would it not? If it is so widely spread throughout the system, there must be victims galore.
Ms McLellan: I understand your point. You might reach the point where you would say that you could bring a class action where you would have an entire class of employees across a company or industrial sector who might come forward.
Senator Cogger: Classes of individuals are provided for in your bill. However, as a lawyer, I have difficulty dealing with a bill that imposes an obligation to accommodate an individual or class of individuals and then further talks about virtual individuals. How do you accommodate someone you are not even sure exists?
Ms McLellan: Part of the inquiry would be to determine whether the alleged systemic or structural discrimination that has been put forward actually exists. However, I would say that there is benefit in permitting, in the human rights area, a tribunal or panel which would have the ability to entertain a non-complainant driven inquiry about structural or systemic discrimination.
Let us be honest. When dealing with rights issues, the costs for an individual complainant can be very high. Some years ago when there were not many women teaching at universities, it could have been very difficult for a female professor to bring forward an individual complaint. In fact, it may not even have been about her, because she had a job there as a professor, but there may have been things happening which she believed constituted systemic discrimination which created barriers to other women or people of racial minorities obtaining equal opportunity to males or people of the predominant colour in seeking employment.
Therefore, you want to address that systemic or structural issue. One still must prove that. It is not the case that you go on a witch hunt. The allegation is made and it is subject to the same processes, procedures and evidentiary burden as an individually-driven complaint.
Mr. Stephen Sharzer, Senior Counsel, Human Rights Law Section, Department of Justice: I have heard people, in the course of the hearings, use the words "victimless complaints." I do not think we are talking about victimless complaints. We are talking about situations where you have a policy or procedure which may be discriminatory, but you do not have a person coming forward. This section requires an individual victim to come forward and file the complaint. If a victim does not come forward, no complaint can be dealt with.
Senator Cogger: In respect of which no particular individual is identifiable as a victim. What do you call that? Is it wrong to call it a "victimless complaint"?
Mr. Sharzer: The actual legal effect of the provision is that you cannot deal with the situation unless the specific victim files the complaint against that particular policy or practice. This provision will say that if no one has specifically come forward, but yet you can identify a policy or practice that is discriminatory against any number of individuals, someone can bring forward that complaint; either the commission or another individual.
Senator Cogger: It all starts with clause 15, the duty to accommodate. Transferring the needs of an individual into a virtual concept is a legal leap that I have difficulty making.
You referred a couple of times in your evidence to the coming down the tubes of an overall review.
Ms McLellan: Yes, a broader review which has been promised by successive governments.
Senator Cogger: How would the minister react to our saving that concept for the broader review?
Ms McLellan: Obviously, it is here. We have put it forward. We would like to see it moved forward as part of this package. It adds a certain symmetry to the existing law because that provision is not new in the sense that the provision exists currently in relation to employment situations. We are saying that we want the same kind of provision in relation to allegations surrounding the provision of goods and services.
I argue that we should not postpone this, that there is no reason to distinguish between allegations of discrimination as they relate to employment and allegations of discrimination as they relate to provision of goods and services, and that the context in which those allegations can be brought forward should be identical. I do not see any reason for treating them differently.
The Chairman: Honourable senators, the minister has been very good to us. She has stayed here 20 minutes longer than we were expecting to have her.
Minister, if your time is pressing, perhaps we could have your officials stay for a bit longer.
Ms McLellan: I would be very happy to stay, but I must leave for Montreal where we are beginning our federal-provincial Justice and Solicitor General meetings, where I am sure my provincial colleagues will have a wide range of issues on which they will wish to speak to me and share their views.
I will take my leave, my officials will remain. I thank you all very much for the opportunity to be here. I have appreciated your questions and you have provided me with some further food for thought in terms of this particular bill.
The Chairman: Thank you, minister.
Senator Cogger: Were any of you present when representatives of the Canadian Bankers Association were here?
Mr. Sharzer: Yes.
Senator Cogger: Would you care to comment? The minister said that this victimless concept was already in the Employment Act. However, we also heard from the bankers that those victimless situations were found to be virtually impossible to settle, or very difficult. Some of them were into their ninth year. Is that the situation we wish to create with the new tribunal?
Mr. Sharzer: Those complaints are different in a way. They deal with very broad questions of systemic under-representation. When it comes to the average complaint of discrimination, this provision has existed for 20 years in the employment area. We have not seen many complaints at all in this area. I believe there have only been a couple of situations where people have come forward on this provision. We expect it will probably be along the same lines for the services provision. However, we thought it made sense to provide some scope for people to bring these issues forward.
Even if an individual does not come forward, the circumstances can be and will likely be as concrete as if a certain individual had come forward. If their complaint, for example, is about a policy of providing -- I do not want to single-out organizations, I do not like doing that -- some private business or policy they have with respect to services and the allegation is that that policy is discriminatory on a given ground, even if some individual has not come forward, it remains within the capacity of the commission or a tribunal to examine that policy. It is there before them to determine whether it is discriminatory or not and that can be a very concrete situation.
Senator Jessiman: Do they have that in Ontario now?
Mr. Sharzer: I cannot guess at that. I am not certain if they do.
Ms. Gloria Mintah, Counsel, Public Law Policy Section, Department of Justice: Also, I believe it is a misnomer to say it is a victimless complaint. There are victims out there except nobody has come forward. It does not mean that there are no victims. I may be suffering in silence, but I am a victim.
We also outlined that there are provisions in the legislation where, if this power is used frivolously, the Human Rights Commission can step in and say, "Sorry, we cannot deal with it."
Senator Doyle: However, you might have cases akin to The Fetus v. The Supreme Court where someone may be speaking on behalf of a fetus.
Mr. Sharzer: I am not sure that that is an issue that would come up under the Canadian Human Rights Act.
Senator Doyle: It might at a later date.
The Chairman: There have been groups that have appeared before us that asked about including sexual orientation in section 16 of the act. Do you have reasons for not putting it in, or what is your response to that?
Mr. Sharzer: As a public servant, I would say that my role is usually to explain the background to a policy. That is a political issue that should be addressed to the Minister of Justice. I apologize, but I believe she would be in the best position to respond.
The Chairman: We have also had a brief from the Canadian Association for Community Living and they were concerned about amendments that were also not included in the bill.
They suggested a five-year review of clause 2 of the bill, to see if it would still be necessary in the future. Clause 2 deals with sexual exploitation of a person with a disability. What would be your thoughts, again if you can, on behalf of the minister about that aspect of it?
Mr. Berlin: What I should like to address about section 153.1 of the Criminal Code was that the Department of Justice's officials had many representations from many disability organizations vehemently asking for us to include such a provision.
The thought was that there are some instances where persons with a disability are vulnerable as a result of their disability. Not all persons with disabilities are going to be vulnerable, but some persons with disabilities are vulnerable when they, for example, are in institutional care or are dependent upon a caregiver.
In those instances, we heard stories that those types of vulnerable individuals who were institutionalized or had caregivers were subject to many instances of abuse by their caregivers and they asked us specifically to include this type of provision.
I should say that this issue was raised by many disability organizations and I can inform you that it was also assented and agreed to by organizations such as the Canadian Bar Association and the Criminal Defence Lawyers Association that felt it would serve an educational purpose to have such a provision.
The Canadian Association of Community Living, as I recall, was certainly part of our integral consultation process and was supporting this initiative. They are now asking for a five-year review of this type of provision.
Generally speaking, the Criminal Code puts forward its offence provisions without there being a cap on review. It is a state of the law. It may be, within a number of years, that there will be prosecutors who will not wish to enforce this type of provision. For the most part, we have been told that there are enough incidents that prosecutors would feel comfortable using this type of provision. We have not really entertained the thought of a cap or a review whatsoever.
The Chairman: The other alternative is what the Quebec Bar Association suggested to us which was to get rid of it entirely.
Mr. Berlin: I should like to address that, as that was a critical point. At one point there was a suggestion, and I can clarify because I heard the submissions from the Barreau du Québec. The thought was there is a particular provision relating to youth and sexual exploitation. Rather than create a whole new section, perhaps include within the existing provision the words "and with respect to persons with disabilities"
The distinction that we thought was critical was that, vis-à-vis youth who are sexually abused, they could never consent to sexual touching or sexual exploitation. It is not possible that a youth could ever accede to such an event.
On the other hand, the disability community told us quite clearly that when persons with disabilities are institutionalized or develop a relationship of trust or dependency with a caregiver, it is possible that a relationship will develop. The adult disability community wanted it there to be protected against possible sexual abuse, but at the same time they wanted the opportunity to consent to having a sexual relationship with their caregiver, if it was mutually assented to, agreed on and it was free consent.
As a result of that, we felt that we could not marry the two sections but had to provide for an opportunity for there to be consent for the persons with disabilities who would engage in a relationship which was mutually agreeable. That is why we decided to have a separate clause inserted.
Senator Jessiman: I just wanted you to tell me whether this statement on victimless crime made by the Canadian Bankers Association is correct or not. It is on page 8 of their brief and it reads this way:
...when the Employment Equity Act was reviewed and amended in 1995, the House of Commons Committee on Human Rights and the Status of Disabled Persons which was examining Bill C-85 and which recognized the ineffectiveness of victimless complaints...
Is that a correct statement? Do you know whether the House of Commons committee came to the conclusion that they were ineffective?
Mr. Sharzer: What I can tell you is what I know about the Employment Equity Act and the way in which it was enacted.
When one looks at discrimination complaints, one must first make out that there is discrimination before there can be any remedial activity. However, under the Employment Equity Act, there is no fault-based approach. What you do is simply ask if people from various target groups are underrepresented in employment. If they are, you take steps to deal with that. In that situation, perhaps there is no victim, but there is no finding of fault, per se; rather, there is a question of improving representation.
I am not certain if I would characterize the law in the same way. In fact, it tends to go in the opposite direction. You are not looking for individual victims; rather, you are taking steps to address systemic problems in the employment setting.
Senator Jessiman: Have they been ineffective?
Mr. Sharzer: Has what been ineffective?
Senator Jessiman: You had this provision in regard to employment. You have it there and it has been ineffective; this is what the committee said in 1995. That was the statement. You can read it as well as I can. I am asking you if this was a correct statement.
Mr. Sharzer: The policy rationale behind the Employment Equity Act is that it was no longer good enough to have individuals coming forward, filing complaints under the Human Rights Act dealing with this or that employment situation. The Employment Equity Act would require all employers -- with no exception and not depending on whether a complaint had been brought forward at the federal level -- to undertake employment equity programs to improve representation, remove systemic barriers and so on.
Senator Jessiman: They put that in. They are saying, "You have done that, but it is ineffective." That is what the statement says. They say that is what the committee concluded.If that is so, why are we putting it in here?
Mr. Sharzer: I am not entirely familiar with the context, so I will not comment on that.
The feeling is that the Human Rights Act had not functioned as it should at that point. That is why they wanted to shift into this positive obligation on employers to undertake employment equity measures.
Senator Jessiman: That seems to be exactly what was said.
Mr. Sharzer: Perhaps you should address that question to them again, but I do not think they are criticizing the current Employment Equity Act.
The Chairman: Part of the confusion with respect to Bill C-85 that the bankers were talking about is that the number is wrong. It should be Bill C-64, the Employment Equity Act. That may be the cause of some of the confusion. Bill C-85 died before it even got to committee. It was never considered in committee, but this bill was.
Senator Jessiman: Even if they got the wrong number, did the committee come to the conclusion that these victimless complaints are not effective? That is the whole point. If it does not work with employment, why should it work with goods and services? If they are correct that the committee of the House of Commons decided that they were ineffective, then we are taking it a step further. It will be ineffective here as well if that statement is correct.
Senator Beaudoin: The Quebec bar expressed some concern about what they called "le treizième juré" -- the one who is interpreting; one of the members of the jury. I do not see any problem in that. The minister is of the opinion that there is no problem there, if I understand her correctly.
Senator Cogger: She is right.
Senator Beaudoin: Of course she is right. I agree with her. However, I would like to know more about that. Why is she so certain about that?
Mr. Berlin: Let me try to clarify the scheme that we have set out, and this should answer your question.
Right now, there is a challenge for cause for a juror who has a disability. We suggested to make it a positive statement. We said that that should not automatically be the case. If a person with a disability, with the appropriate attendant care or a proper facilitator, can undertake the duties and responsibilities of a juror, that individual should be considered to be a jury member. In order to fulfil their responsibilities as a jury member, some persons with disabilities may need a facilitator. They may need a sign language interpreter. They may need attendant care to get them in and out of the courtroom and to assist them in the washrooms. Those are realities.
We have suggested in our scheme that there be an attendant or a facilitator to allow the juror to fulfil their responsibilities as a juror. The safeguards we have put in to ensure that this individual is not considered to be a thirteenth juror are the following.
First, the judge would ask that individual to swear an oath as a jury member would normally do, but, in particular, they will be asking them to interpret objectively. They will ask them not to interfere with the jury or the jury process. In other words, they will be asked to restrict themselves to their responsibilities as a facilitator or an attendant caregiver.
Second, we have suggested that it be an offence for there to be disclosure of any proceedings by this facilitator or attendant caregiver. They cannot participate in the jury process and then leave the jury room to tell the newspapers, the media or anyone else what has gone on. Those rules of non-disclosure and the swearing of an oath ensures that this person is restricted to being the facilitator or the attendant caregiver and is not in any way to be considered as a thirteenth juror.
I hope that explains the parameters of this scheme we have set out.
Senator Beaudoin: With respect to a translator, suppose a witness is speaking a language that you do not know. You rely on the translation, obviously, and there is no problem in that respect. I do not understand why the bar is so worried about that.
Mr. Berlin: It is curious. We have not heard that comment before. I am not sure where it came from. It may have come from an incomplete understanding of the scheme we have laid out. It is a fear that is not founded in law or in practice.
Senator Jessiman: Is this law effective in any other country?
Mr. Berlin: Interestingly enough, both the Province of British Columbia and the Province of Alberta currently provide for there to be attendant care and a facilitator. Therefore, what we are providing for in the Criminal Code are the rules by which these types of juror-facilitators must abide. Two Canadian jurisdictions already provide for it. We are providing the rules in the Criminal Code for at least those two jurisdictions. We are aware of a number of jurisdictions in the United States that also provide for this attendant caregiver-facilitator. It is not a unique or new provision whatsoever.
The Chairman: Thank you very much for appearing before the committee today.
The committee adjourned.