Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 21 - Evidence
OTTAWA, Wednesday, March 25, 1998
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-11, to amend the Canadian Human Rights Act in order to add social condition as a prohibited ground of discrimination, met this day at 3:38 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: I see a quorum. We have before us, as a witness, Senator Cohen, sponsor of Bill S-11.
Please proceed, Senator Cohen.
Hon. Erminie J. Cohen: It is a new experience for me to be sitting at this end of the table. Perhaps when this is over, I will be more sensitive to witnesses who appear before us in committees, because I am a little intimidated by this very auspicious group.
As you know, I am not a constitutional lawyer, nor a human rights expert, although I do see several around the table, and I welcome your presence here. In light of what I have just told you, I will defend my bill, Bill S-11, from a moral position and do my best to cover the technical points.
Professor Martha Jackman, who recently appeared before you, wanted very much to be here today because she did help in the drafting of the bill. However, she was unable to be present. She is willing to appear before you at another time.
With me today are Ms Angela Petten, my researcher, and Ms Deborah Palumbo from the Senate Law Clerk's office, who worked on drafting this bill.
Behind me is Ms Pamela Coates, President of the National Anti-Poverty Organization, which association has a great interest in this bill. Ms Coates is present to support me.
The Canadian Human Rights Act recognizes that there are people in our society who are considered vulnerable and who are in special need of protection from discrimination. Listed as prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability, conviction for an offence for which a pardon has been granted and, most recently, sexual orientation. Bill S-11 simply proposes that we add "social condition" to that list in section 2, subsections 3.(1) and 16.(1) of the act.
The reason for that is the following: Poverty continues to be one of the greatest barriers to equality in Canadian society. Poor Canadians live daily with social stigma and negative stereotypes. Financial institutions, landlords, utility companies, the legal system, and the public and private media continue to discriminate against the poor.
As a result, the poorest 20 per cent of our population experience life differently than do you, I, and the majority of Canadians. They have been excluded from any meaningful participation in society's political, social, economic or cultural life. The poor in this country face a prejudice similar to the prejudice faced by the other marginalized groups that are enumerated in the Human Rights Act. Given this, social condition should be viewed in the same manner as those specified grounds.
At this time, our human rights laws are neither clear nor coherent. Section 15 of the Canadian Charter of Rights and Freedoms specifies only race, national or ethnic origin, colour, religion, sex, age or mental or physical ability. However, the preamble states that every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination.
As a result, this list is interpreted as being open-ended. Case law illustrates that other disadvantaged groups have successfully argued that the discrimination they face is similar to that faced by the listed groups and they have won analogous grounds. Once this happens, it is sort of a dog or tail situation in that judges become responsible for legislative reform rather than we the legislators. We politicians must then scramble to make amends to the Human Rights Act.
Anti-poverty groups have indicated to us that they are tired of waiting for legislators to do the right thing and may soon start a fundraising campaign across the country to begin an analogous grounds case. This would cause them, and taxpayers, an unnecessary expense. Given the jurisprudence regarding analogous grounds, experts agree that they have a clear and winnable case.
Several of our provinces extend protection to the poor in various ways, as shown in the charts before you, using as prohibited grounds source of income, receipt of social assistance, social origin and, in Quebec, social condition. As well, the Universal Declaration of Human Rights, to which Canada is a signatory, extends social, cultural and economic rights protection. The Canadian government needs to keep abreast of the advances made in other human rights fora. The fact that so many other human rights instruments recognize poverty as a significant and systemic barrier to full participation allows us to conclude that we would be acting on firmly established legal ground to add "social condition" as a prohibited ground.
Anti-discrimination law such as this does not confer any special privileges. It deals solely with the proscription of discrimination; that is, prohibiting a burden. I must emphasize that this bill will not make poverty itself a human rights violation. I know that this has been a source of confusion for some.
Adding "social condition" to the Canadian Human Rights Act would provide explicit recognition of poverty and its related attributes, such as social assistance, and would prohibit discrimination against the poor within the federal sphere.
For the most part, the terms used to extend human rights protection are not defined within the context of the law, but are left open to interpretation. When arguing a human rights case, the focus is on the discrimination, while the ground is generic. Grounds for discrimination are often considered objective and subjective. Concrete facts, such as the receipt of social assistance, are mixed with perceptions about the objective elements, such as "I see you in tattered clothes and I assume you are on social assistance and therefore will not rent to you."
While you may be thinking, "What does social condition mean?", we might also ask, "What does race," which does not exist scientifically, "or family status mean?" The experts tell us that the social impact of discrimination must be understood by the courts in terms of the experiences of those who live it. We know that different types of discrimination can overlap. Statistics tell us that women, people of colour, First Nations people, persons with disabilities, and the young and the elderly are overrepresented in our poor population. The term "social condition" is broad enough to cover a vast range of these life experiences.
I must restate that human rights law is written so that the focus of a trial is on the discriminatory act, not on the ground. The plaintiff does not build a case illustrating that he or she is a member of a marginalized group; rather, what must be illustrated is that discrimination, for whatever ground, did take place.
I will now give you an example of how various types of discrimination overlap and how adding "social condition" could make a difference in the lives of the most marginalized people in our society.
A single, black mother is denied housing in Toronto, Vancouver or Halifax. It was not because she was black that she did not get the apartment, for many black people already live there. It is not because she is a single mother, for the apartment managers can prove that several of the units are already rented to single mothers. However, she is a single, black mother on social assistance. Her stereotype, or the assumptions that people make about her, are based on the combination of her family status, her race, and her source of income. With the addition of "social condition," she would have protection under the law and now she could say, "You cannot do this to me."
We must ensure that all Canadians are evaluated on the basis of their own merit, not by the assumptions people make about them. That is the spine of human rights law.
In closing, I should like to quote from chief commissioner Michele Falardeau-Ramsay who said in her report tabled yesterday:
Poverty is a serious breach of equality rights which I believe has no place in a country as prosperous as ours.
Therefore, colleagues, I request that you seriously consider supporting Bill S-11 as it stands. The 20 per cent of the Canadian population who are discriminated against need this protection.
Senator Beaudoin: I could not agree more with the principle of the bill. It is obvious that it is perfectly legal and very well founded.
Is the purpose of the bill to render explicit what is implicit? Do you have doubts about the existing jurisprudence in this field and wish to see clearly, in the Canadian Human Rights Act, what is not clear-cut in the jurisprudence under that act? In other words, if the jurisprudence is not clear-cut, obviously the purpose of the bill is very well founded. However, even if the jurisprudence is clear, there is always an advantage in having something explicit rather than implicit.
What is the reason for the bill? Is it because you are not satisfied with the cases so far, or is it that you want to take no chance and innovate?
Senator Cohen: I do not want to take the chance. If social condition were included in the act, an aboriginal person, for example, who was denied access to a bank account could make a case that he or she was discriminated against because they are poor.
Senator Beaudoin: It is quite unacceptable to have no jurisprudence in that area. If there is the slightest doubt that it is not included, at least implicitly, the purpose of the bill is to correct the situation and to say very clearly that from now on social condition will be included.
Senator Cohen: There was a gaping hole in the Human Rights Act in the area of discrimination against the poor. Including social condition closes that hole.
Ms Deborah Palumbo, Legal Counsel, Office of the Law Clerk and Parliamentary Counsel, Senate of Canada: Senator Beaudoin, because social condition is not recognized in the Canadian Human Rights Act, there is no jurisprudence on that; there is no case in which it has been argued federally.
Senator Beaudoin: It has never been argued?
Ms Palumbo: Not federally.
Senator Beaudoin: So that is an additional reason to include it.
Ms Palumbo: Not as far as the Canadian Human Rights Act is concerned, and that is the reason for including it.
Senator Beaudoin: I do not need anything more. I will vote for the bill.
Ms Palumbo: It is possible to argue that poverty or social condition is an analogous ground under section 15 of the charter. That is a possibility. However, I do not believe that it has happened as of yet. I believe it may happen if this bill does not pass. I understand that the anti-poverty groups are thinking of going in that direction. As you can see, it is not at all clear at the moment.
Ms Angela Petten, Policy Advisor to Senator Cohen: Another issue is funding. The federal government currently provides funding for other groups who are enumerated and the poor do not have access to that kind of funding in order to take their cases to trial, if there were, in fact, an opportunity to do that. As well, with respect to the Court Challenges Program, which does facilitate enumerated groups doing that, because the poor are not listed, they do not have access to that program.
Senator Gigantès: Senator Cohen, the example that you gave makes it clear, about the black mother who was refused space.
Senator Cohen: She was black and single and poor.
Senator Gigantès: You also said there were other blacks in the apartment and other single mothers in the apartment building; she was excluded because she was poor.
Senator Cohen: That is correct.
Senator Gigantès: Why do you call it "social condition" and not "poverty?"
Senator Cohen: When I first found out that the poor did not have human rights protection in Canada, I could not believe it. Many of us are just finding out. I began to meet with people in the field to see how we could change this. Social condition is the term they have been recommending for more than ten years. It is not anything that is new.
I do not know all the legal implications of the term, but it is something which I hope you can ask Martha Jackman when she is here, because it is invisible to a degree, but it has been used successfully in the province of Quebec, if you would check your chart, senator.
Senator Gigantès: From what you said, and what Ms Palumbo and what Ms Petten said, it is clear that you mean poverty, why not call it poverty?
Ms Palumbo: "Poverty" has not been used in any of the provincial human rights codes, nor in the Charter.
Senator Gigantès: So?
Ms Palumbo: "Social condition," on the other hand, has been used in the Quebec Charter under section 10. The Quebec Human Rights Commission has issued guidelines with respect to what social condition under section 10 involves and the guidelines indicate that it includes income, occupation, education levels, social origin. Social origin includes your parents, your ancestors' income, occupation, education levels. It has been interpreted very widely.
If this bill were to pass, it would not be binding on the interpretation of social condition under the Human Rights Act, but it provides some comfort as to what the parameters of what the expression means. I think that is why the anti-poverty groups seem to be supporting that phrase.
Senator Gigantès: We have Canadians who came from Britain not too long ago for whom the term "social condition" does not necessarily mean property. In Britain, someone who is the daughter of a rich grocer -- not too rich because if it is too rich it is okay -- suffers discrimination not because of her lack of money but because of her social position. I do not feel we should use terms that do not say something precise. I do not care what Quebec said, we are talking English now. In English, what we are talking about is poverty.
Senator Cohen: On the list here it is a very important point. There has been much study and research done as to the proper wording that should be used in the act. If you will notice here, nobody uses poverty, they use social condition, social origin, source of income or receipt of public assistance as prescribed grounds of discrimination. As I said, I am neither a lawyer nor a human rights expert but it seems to me that if these jurisdictions -- I think there are five of them -- have studied the act, they have seen fit not to use the word "poverty" for a specific reason.
Senator Gigantès: There is a tendency towards jargon. It is like saying "passed away," instead of saying "died." It is like saying, in the case of a pregnant woman, "she is in an interesting condition," instead of saying "she is pregnant."
I will not vote against the bill, but I really ask you to think in the next few minutes why we should not call poverty by its real name, which is poverty.
Senator Cohen: I asked that question myself, senator. It is a fair question. The answers that I gave to you are the answers that I received when we were all together talking about drafting the bill.
Senator Gigantès: You have been talking to people who are addicted to jargon; public servants, lawyers.
The Chairman: I do believe that there is some jurisprudence on the issue and that the term that has been used is "social condition."
Ms Palumbo: Once a term has been used in law, and has been recognized at some level, then there is some level of comfort in the sense of we will use the same term because we have some idea of what it means. Poverty is something that has never been used so we have no idea how broad or how narrow it will be. Senator Gigantès is not comfortable with that, I can see.
[Translation]
Senator Pépin: I am not a lawyer, therefore I cannot base myself on your arguments with which I fully agree. I would simply point out to Senator Gigantès that when we talk about poverty--and the current belief is that poverty leads to discrimination--if we include that word in the legislation, then it is worse still. We are targeting people. No one likes to be labelled poor. Now we are trying to devise a new vocabulary in an effort to spare these people. I do not see why we should label them poor. In my view, this will cause them even more harm.
Senator Gigantès: Why use the word "race"?
Senator Pépin: The expression "social condition" is all-encompassing and provides blanket protection at the same time. These individuals are hurting enough without their having to deal with being labelled poor as well. That is a label that will remain with them forever.
[English]
Senator Cogger: Senator Cohen, I had occasion to debate this matter with Professor Jackman. Like my colleague Senator Beaudoin, I have no difficulty in saying that the aim of the bill is admirable and it is very easy to support.
I am trying to satisfy myself in practical terms. In your exposé, you referred to financial institutions, landlords, utility companies, et cetera. This goes back to the discussion we had with Professor Jackman. As I understand it, the problems arise mainly out of the provision of services that are somewhat in the nature of an extension of credit. In other words, the credit worthiness of poor people is what makes them feel they are subject to discrimination. As we discussed with Professor Jackman at the time, if you want a telephone installed, the utility company will want to be satisfied that you will be able to pay the bill at the end of the month, which is a form of an extension of credit. As there are no limitations that I know of, you may run up a bill for several hundred dollars or several thousand dollars.
In our quest for a perfect world, I wonder if we are not being so impractical as to try to introduce certain notions.
You speak about a single black mother. It could be a married white couple. The landlord says, "Look, buddy, you cannot afford my place, and therefore I do not wish to rent to you." Has this individual discriminated against that person?
Senator Cohen: No.
Senator Cogger: Where did the single black mother come from, then, in the example?
Senator Cohen: She was poor.
Senator Cogger: However, in the case of a married white couple and the landlord says they cannot afford his place, you are telling me that that is not the same situation. In other words, he turns them down on the basis of his evaluation of their means to pay.
Senator Cohen: The bill ensures that applicants are evaluated on a rational basis. It does not say that landlords have to rent to those who cannot afford it. However, it does say that the reason must be because an applicant cannot afford it, not because the source of his or her income is social assistance.
When it comes to the bank, senator, it is not that they cannot loan, or they have no equity, or they do not have the proper papers.
I have a press release from the Canadian Bankers Association. They are starting to do sensitivity training at all their banks across the country so that when people on social assistance come in to cash government cheques, tellers will not treat them in a different way than they treat you and me because we come in without a government cheque. They are also ruling that fewer forms are needed now for people on social assistance to open up accounts.
Recently in a bank in Saint John -- and I know of this personally because it happened to a member of my family -- a businessman went into a bank at noon. It was busy. There was a long line-up, and he wanted to know what was going on. He asked what was wrong, and the teller said: "It is cheque day. Can't you tell? It is disgusting." That is what I mean by discrimination against people on social assistance. These people have no recourse.
These people then must go to cheque-cashing establishments where they have to pay from 5 per cent to 30 per cent to cash a government cheque. The bank will not cash the cheque because when these people walk into that establishment, they are already intimidated because they are not dressed the same as someone else.
In New Brunswick, cheques are different colours. If you go into a bank with a different coloured cheque, they know you are on social assistance. That is why it is so compelling that social condition be included, even if it does not happen all the time. It should not happen to anyone. Basic services and living should be the same for all of us. We should not be stereotyped. That is the reason I am promoting this bill.
As well, a banker does not have to loan money to a client who cannot prove that they have the ability to pay. They really do not have to do that. If you know anything about micro-credit banking, poor people in Third World countries are getting minimal loans and are paying them back at a rate of 98 per cent.
We must give these people the benefit of the doubt and treat them like human beings. We should treat them the way we want to be treated when we walk into an establishment.
I received a letter five days ago from a couple in my community who read that this bill was being addressed. The letter reads as follows:
Dear Senator Cohen:
On February 28, 1998, the Saint John Telegraph-Journal ran an article entitled: "Senator wants poor protected by human rights code." I know you have spoken out in support of the poor in the past, God bless you for that. There are people who are sentenced to be outcasts of society at birth as a result of circumstances they were born into. Few politicians want to accept the enormous responsibility placed in their hands, i.e. to ensure that these people share at least to a minimal extent in the abundance of our country.
The purpose of this letter is to inform you of government discrimination against these unfortunates.
This is a provincial government.
The government of New Brunswick, acting in collusion with financial institutions, is discriminating against an identified group of citizens. This discrimination is particularly offensive because it is against those in society who may be seen as having no recourse. They are indirectly under control of the government and may fear reprisal should they challenge this discrimination.
At issue here are people on social assistance. For this reason it is easy for most to look the other way. When cashing an assistance cheque, these people are immediately identified as being on social assistance by the colour of the cheque. This in itself is humiliating and discriminatory, but the teller then asks for a health card issued by the government from which they copy an identification number. I am told they are told to do this by the provincial government, although on checking this out, either party would accept responsibility for this procedure. By the very definition, this is indisputably discrimination. An identified person is being asked to provide identification beyond what the general public is asked to provide. This is no different than if an identifiable race were asked to do the same thing. Most social assistance recipients are dehumanized enough without having to suffer further humiliation caused by their own government and powerful banks. Could you use your position to look into this situation?
Then he adds:
This letter for the most part was written over a month ago... This time I cannot in respect to my wife who would be humiliated if people we know knew of our circumstances. We are both in our late fifties and trained people, but circumstances have not been kind to us.
This letter arrived four days ago, and I thought it had come from on high. It really proves the whole issue of discrimination and how people on social assistance do suffer as a result of it.
Senator Cogger: What can I say? I am amazed, astonished and flabbergasted by the idea that there are different coloured cheques.
Senator Cohen: In New Brunswick.
Senator Cogger: Is this done by the Government of Canada?
Senator Cohen: This is the provincial government.
Senator Gigantès: Mr. Hatfield instituted the colour scheme.
Senator Cohen: I hate to disappoint you, senator, but it was a little later on.
However, senator, even when there was a mail strike in New Brunswick and they could not deliver social insurance cheques, you and I get our pension cheques or whatever -- you are not old enough -- in the mail. Social assistance people had to stand in line on a cold, rainy day for hours, and people drove by and knew that they were standing in line waiting to receive their cheques. That is dehumanizing. Those are the invisible things.
Senator Cogger: I do appreciate that. It is not a pretty sight. Frankly, Senator Cohen, even with this, if there is a mail strike, what are we to do? Do we send some unidentified person and slip the envelope in the mail slot so that the poor person at the other end is not humiliated? The hard fact of life is that those people need their money, and they need it quickly.
Senator Cohen: You can have locales in different areas of the city, and it can be done much more discretely than a long line-up standing at a social welfare office waiting for a cheque.
Senator Cogger: With all due respect, while the purpose of the bill is admirable and while it might go some way to improving the situation, let us not dream in technicolour that the amendment would take away any and all stigma attached to their sad conditions. It will not alleviate the problems that you mentioned in the case of a mail strike.
Senator Cohen: As an example, the CRTC uses the Human Rights Act as a guide concerning discriminatory speech on the airwaves. As the poor are not included in this list, they do not have any protection. I do not know if you have heard any open-line shows where people are referred to as "welfare bums." If this social condition were included in the law, then people who are discriminated against on the airwaves would have recourse. There is some backbone there for them to say, "Hey, they can't talk about me like that on the airwaves."
Senator Gigantès: Statistics show that the poor are obsessive about trying to pay their bills. A landlord should not assume that because someone is on social assistance they will not necessarily be able to pay their bills. Some rich people do not pay their bills.
Senator Pépin: One of my colleagues told me that you said in the Senate that 20 per cent of Canadians are poor. He asked me if the statistic was real, because he believed that the percentage might be a little too high.
Senator Cohen: Are you asking me if the 20 per cent is real? Yes, it is.
Senator Pépin: I cited a similar statistic when I spoke, and he said perhaps that was not correct.
Senator Cohen: With whom did you speak?
Senator Pépin: It is one of our colleagues.
Senator Cohen: It depends on which cut-off line people are using. About seven or eight different lines are used across the country. We are using Statistics Canada's cut-off line.
Senator Gigantès: It is also different by country. In terms of purchasing power, there are different definitions of poverty in the countries of Europe, for instance.
The Chairman: That is also the situation in the provinces of Canada.
Ms Petten: We do know that every social assistance recipient in Canada lives below any poverty line, even the most punitive poverty lines such as those by the Fraser Institute. Every social assistance recipient lives below the Fraser Institute definition.
Senator Lewis: We are sympathetic with your objective. I am still troubled by the words "social condition." What is the definition of these words? What does it encompass? I gather there is some jurisprudence, but that would only relate to a particular situation which came before the court.
Ms Petten: I do not believe that there are court cases. I believe there are human rights decisions. We did not define the term in the bill. It was deliberately not defined.
Senator Lewis: I think it is undefinable.
Ms Palumbo: There is a reason why you would not want to provide an explicit definition of the phrase. If you look at the Charter, none of the grounds of discrimination are defined. If you look at the Canadian Human Rights Act, there are two that are defined: disability and conviction for which a pardon has not been granted. For the most part, they are undefined. If you look at the other provincial human rights codes, you will see that most of the grounds of discrimination are not defined. Some are, but not all. That is probably very deliberate as well.
The whole point behind human rights legislation and the Charter is to interpret it in a manner that has relevance in terms of the times.
Senator Lewis: The whims of the times.
Ms Palumbo: The definitions and the meanings change over time, depending on where society is at with respect to the issue. It is important that you leave that flexibility. That is probably why most of the prohibited grounds in the provincial and federal acts are not defined. There is an advantage to that. I understand the concern that both you and Senator Gigantès raise. You are unsure as to what exactly this means. As I say, with respect to human rights legislation, sometimes it is best to leave it to the courts to determine on a case-by-case basis.
Senator Lewis: That leaves people up in the air, which goes against the grain, in my mind.
Ms Palumbo: With respect to using poverty or social condition, if you are concerned about what the term means, about not knowing what it is you are doing here by passing this amendment, poverty has never been used. You are far better off using something that at least we have some idea of what it means.
Senator Lewis: I do not have an idea as to the meaning, and that is the problem.
Ms Petten: I would argue that the Canadian government has not even decided what poverty means. I think we would have more trouble with the definition of poverty, as the ongoing debate illustrates, than we do with social condition. Basically, you have six or seven different versions of what poverty in Canada means. The Canadian government has never come forward and said that the LICO is actually a poverty measure, and Statistics Canada says quite frequently that it is not to be interpreted as a poverty line per se.
I am wondering if that would not shift the focus of the trial or tribunal to defining poverty in a way from the discriminatory act.
Senator Cogger: Can you explain what LICO is?
Ms Petten: Yes. Based on earnings and income in Canada, Statistics Canada compiles a low income cut off. The line is set at a different amount in different regions and for different family sizes. Anti-poverty activists in particular consider that anyone who lives on income below that amount is termed poor.
Senator Lewis: Would "social condition" extend to include a person's psychological situation or mental condition? What about illness? If a person had a contagious disease, or you thought they did, could you discriminate against them based on social condition?
Ms Petten: Mental illness is already covered.
Senator Cohen: What about AIDS?
Ms Palumbo: AIDS would be covered under disability.
Senator Lewis: Finally, when Bill S-5 was before us, there was a question as to why this was not included in the original bill. Have you heard any opposition to "social condition" being included?
Senator Cohen: No, we have not. We have not heard from the Department of Justice yet. A few people have asked why we did not use "poverty" instead of "social condition."
Senator Lewis: No one has said that you should not do this?
Senator Cohen: No. In fact, the Human Rights Commission supports this bill in its entirety, and every other equality-seeking group that works in this area is 100 per cent in favour of the inclusion of "social condition."
Senator Lewis: I believe that it was discussed prior to the last amendment. I am wondering why it was not included then. It is not something new that has come up.
Senator Cohen: That is right. Attempts have been made to do this for ten years.
Senator Lewis: Do you know why this was not included the last time?
Senator Cohen: No, I do not.
Ms Petten: We do know that during the deliberations on Bill S-5, all equality-seeking groups were in support of adding social condition to that bill. That bill was primarily for persons with disabilities and they were trying to get social condition included.
I have been told informally that it went as far as the Justice Department which decided at that time to keep the two issues separate, keeping in mind that we could add social condition at another time.
Senator Lewis: Is this the other time?
Ms Petten: That is what we are hoping.
Senator Cohen: We have read that the Justice Minister plans to review the Human Rights Act during the summer, and we hope that this time it will have teeth. A reporter asked the minister whether the review would include Bill S-11 and she said it would. That has been said for the last few years, but perhaps the Minister McLellan will look favourably on this bill.
The Chairman: This committee has the option of asking the department that question.
Senator Moore: Senator Cohen, like others around the table, I am looking for a definition of "social condition." Is it essentially monetary?
Ms Petten: Most often the people would be poor, but the reasons they are poor could vary. Through working with people in the anti-poverty movement, we have found that people who experience multiple forms of discrimination experience the discrimination which comes along with being poor differently. We want to allow the courts to hear the life situation of the person and how that discrimination impacted upon them.
As I said, my fear is that if we use the word "poverty" the focus of the tribunal will shift and the onus will be on the defendant to prove that he or she is poor, and how would they do that? Someone could earn enough money but have extensive medical bills and be not very well off as a result of that.
Ms Palumbo: The Quebec human rights commission has issued guidelines with respect to what "social condition" means in section 10 of the Quebec charter. The guidelines indicate that one of the things which would definitely be considered is income. Also considered will be education level, occupation and social origin, which includes the income, education levels and occupation of parents and ancestors. That may serve as a guide.
Senator Moore: That last answer confuses me even more. Do you see "social condition" also including the fact that a person might live in a public housing project?
Ms Palumbo: Definitely.
Ms Petten: Even an area of a town. If you make assumptions about people based on what section of town they live in, that is discriminatory and that, I believe, would be included under "social condition."
Senator Moore: Senator Pépin asked about the 20 per cent figure. Twenty per cent of the population is poor. What is the line here? You said that different regions have different levels. Is the income applied to an individual or a household?
Ms Petten: Both. There are different lines for each. One is based on a household of four; the other is based on a household of one.
Senator Moore: What is the national average of the poverty line today; the latest StatsCan figures?
Ms Petten: You really cannot do a national average because the experiences of people across the country are so different. Five hundred dollars a month will not take me as far in Vancouver as it will in New Brunswick. You cannot really have a national dollar figure, which is why they do it by region.
Senator Moore: What is the figure in Nova Scotia, for example?
Ms Petten: I do not know what it is in Nova Scotia.
Senator Moore: Does someone not add up the total of the ten provinces and two territories and divide that by 12?
Ms Petten: That will not work.
Senator Moore: Must you be explicit for each region?
Ms Petten: In Yellowknife, for instance, the cost of living is extremely high.
Senator Moore: I do not have a problem with the spirit of what is being attempted here, however I am trying to put a fence around what a social condition is. I could see where this could lead to the proverbial witch hunt. Some of this stuff is pretty sweeping.
How does an alleged discriminator defend himself if they did not intend to be nasty, mean or discriminatory?
Ms Petten: That is what people said about race 50 years ago: "I did not mean it."
Senator Moore: I was surprised that there was not a definition section here to tell us where we are headed and what it means.
Those are my concerns.
Senator Cohen: In view of the genuine concern and questions about what "social condition" is and the definition of "poverty," Martha Jackman would probably be able to answer some of the questions which have been raised.
Senator Moore: You must have struggled with this yourself.
Senator Cohen: I stayed up until midnight last night going over this paragraph many times, because it is confusing if you have not worked in the area or if you are not a professional, so I am very sympathetic.
I wish to tell Senator Cogger that adding "social condition" does not mean that all cases relating to poverty will be successful. They must prove it. I know that was your concern.
Senator Kinsella: My first question to the witnesses is: Is it not true that the evil that is being combated by this proposed bill is, first and foremost, the evil of discrimination against people whose dignity has been offended as a human person? The evil that is being combated is the obstacle to equality that is set in their way because of such grounds as race, religion, colour or social condition; is that correct?
Senator Cohen: Absolutely.
Senator Kinsella: The bill we are dealing with then is an anti-discrimination statute, which means we must look at this anti-discrimination statute, do we not, and understand how the anti-discrimination statute which we give -- I think it is a misnomer -- the name Human Rights Act, because it is effectively an anti-discrimination statute. Therefore, we need to look at the areas of discrimination that are prohibited such as employment and accommodation services that are under the federal sphere of jurisdiction.
Senator Moore: Would you include level of income?
Senator Kinsella: No.
Senator Moore: No?
Senator Kinsella: It is illegal in the federal sphere of jurisdiction to discriminate in the area of employment on the grounds of race, religion and now it would be social condition.
Senator Moore: Which would include level of income under the proposed bill; is that not correct?
Senator Kinsella: The prohibited ground of discrimination, or proscribed ground of discrimination that is advanced here is social condition. Social condition, in its ordinary meaning, speaks to source of income, level of education, and things of that nature.
However, if a federally regulated employer discriminated or refused to employ a person because of their social condition, that would be illegal and that would be found to be a discriminatory act.
If some personnel manager of a Crown agency thought that a person had a poor cultural background as a result of their economic circumstance and if that were not true, the person was a millionaire, the discrimination that has occurred has been that the person was discriminated against on the grounds of social condition and so the person would file the complaint. If a personnel manager said, "I do not want this person because that person is Chinese," but the person is not Chinese, he is of Vietnamese origin or of Japanese origin, but the complainant puts "race" down, race was not really the ground in the mind of the discriminator, therefore, the precision of the definition of the prohibited ground of discrimination is not the important thing, it is the act of discrimination.
The other thing I wish to underscore is in any of the prohibited grounds of discrimination, or in any of the areas that it applies to, such as accommodation, or travelling on a train which is under federal regulation, if there is a bona fide reason for denying that service to a person, is that not a reason that is accepted and, therefore, would it not be discrimination? In the act itself is there a provision for the defence of a bona fide limitation?
Senator Cohen: Yes, definitely.
Senator Gigantès: How?
Senator Kinsella: If, for example, on the grounds of gender, CPR had a women's sauna and decided that for propriety reasons they wanted only to have women custodians in the women's sauna, gender might constitute a bona fide occupational qualification and limitation.
Senator Lewis makes the point well, the step-by-step growth of the list of prohibited grounds of discrimination. You are adding another one.
Senator Cohen: Right.
Senator Kinsella: Is it your opinion that this ground should be added now for the reasons that you have advanced in your speech on second reading and other reasons, you are arguing that this prohibited ground speaks to a serious area of discrimination and should be added now?
Senator Cohen: Absolutely.
Senator Kinsella: When we began to enact anti-discrimination laws across Canada within this model, in the 1960s, at the beginning there was only race and religion, gender was not added until the early 1970s.
As my final point, Madam Chairman, because it was a good point raised by colleagues of why do we add to the prohibited grounds of discrimination and how does that relate to the public morays, my question is: Is it not true that the whole issue of state ways versus folk ways, that law, when enacted, will change the public's attitudes? Regarding the attitude in the 1950s, and much of practices and much of the sad jurisprudence from our courts in terms of racism, it took anti-racism discrimination legislation to get on the books for the public attitude and the great value we have in Canada that racism has no place, so that laws do change folk ways.
Senator Cohen: They do, absolutely.
Senator Joyal: Senator Kinsella has emphasized a notion which is fundamental to human rights, that of emerging human rights. The perception we have of human rights in 1998 is not the perception that we had of human rights in 1948 when the first UN charter was enacted. If we look into any of the statutes that were adopted in the various provinces of Canada and the first federal Bill of Rights that was introduced by the late Mr. Diefenbaker and at our human rights charter today, we will see that there is a whole list of grounds against discrimination that have been added, the most recent one being sexual orientation, added in the last Parliament.
The notion of emerging rights is fundamental in the dynamics of understanding human rights. What human rights will be in the year 2005 might be different than what we are discussing today. There may be other grounds of discrimination that today seem to be acceptable or have not even been identified as unacceptable. This is an important notion to bear in mind when we judge or appreciate if a new ground of discrimination meets that kind of philosophy that we must tackle when we discuss human rights issues.
That being said, I should like to ask if our witness has studied the international act on human rights to which Canada is a signatory to determine if social condition is part of the grounds that are prohibited.
Senator Cohen: I have not studied it; however, I plan to. Your eloquent intervention on emerging rights has whetted my appetite to go further. I was not a human rights expert, but it is looking as if I am going to want to become one.
Senator Joyal: If you try to do that homework, perhaps you could look into the European charter of human rights. This is another very important element of the evolution of human rights. The fact that new grounds of discrimination have been added in legislation is certainly a motive to help promote the perception of citizens about the non-acceptability of an attitude or a perception.
The question is always which came first, the chicken or the egg. The general perception is that parliaments around the world do not move to ban a new ground of discrimination unless there is some consensus somewhere in its population that it is not acceptable. That does not mean that a two-thirds majority is in support of it, but at least there is some kind of consensus among the churches, among the groups that work specifically towards alleviating the conditions, the clientele, if you wish, that seems to share the conclusions that this should be the object of an intervention.
I feel that we should qualify it, because there is a perception in our country, and I know that Senator Beaudoin is very keen on this, that because we have had the Canadian Charter of Rights entrenched in our Constitution, that the courts are legislating over and above Parliament. You know the kind of debate that has taken place in our country, especially since 1982, that the Supreme Court and the provincial courts of appeals have been interpreting the Charter. I feel that that must be qualified to a point, because there are many aspects of definitions that change through the years. The Charter never provides all the interpretations and implications of what is acceptable under one ground of discrimination.
You are absolutely right in saying that "social condition" is a very fluid kind of definition. As Senator Kinsella has said, it is a whole set of criteria that are appreciated to determine if the person is seen as poor and should be discriminated against and should be barred from a job or responsibility or access to service. It is as simple as that. When we wish to define social condition, I do not feel that we should expect to arrive at the last word of interpretation on social condition.
I would like to put on record the text that has been handed to us on how, in various provincial charters, the term "social condition" has been defined or non-defined. The term "social condition" is not defined in the Quebec Charter of Rights and Freedoms. In case law, the tribunal has observed that the definition of "social condition" is both objective and subjective. The objective is the person's standing in society and is often determined by education, occupation, income, family background, et cetera, while the subjective deals with the perception drawn by others on these various objective elements.
There are always two sides to a point, and that is especially so in human rights. What is right for one person may not be right for another. What is acceptable for one person may seem totally unacceptable for another. This depends on family education, religious education, social milieu, and so forth. Attitudes that are acceptable in one instance are not seen as acceptable in another.
Our role is to draw a line at a point and determine whether to intervene to ban that kind of discrimination. As a country going through diversification, we will need to address many things in years to come because the population is changing. The population is diversifying. Other grounds will be discussed further down in the line to reflect the kind of changes that will be occurring.
I am sorry if I am making statements more than I am questioning you, but I feel that it is part of the open and free debate that we have.
Senator Cohen: I might be able to rest my case when you are finished.
Senator Joyal: The other ground, which is very subtle but difficult to seize, is the systemic discrimination to the poor. We know this exists. I can quote an example, Madam Chairman. I happen to know a bank manager who was promoted into a very poor zone of Montreal, la petite Bourgogne, which is the poorest neighbourhood of Montreal. Since he was a friend and was promoted in that neighbourhood, I changed my account from the branch where I used to go to his bank because I had a personal relationship with him. Of course, when I was going there, I could see at the end of the month the line of poor people with their cheque from the federal government and the senior citizens with their cheque and the people with la Société de Saint-Vincent de Paul cheque. In other words, the customers of that bank in that branch were only poor. After a while, my friend told me that the branch was closing because the bank came to the conclusion that they were spending too much money at the counter explaining to the people who were going there how to fill a form and how to answer a lot of questions, because people were coming with all kinds of legal problems and public documents to file to get a social insurance number or renew their health care card or whatever. He told me it was too costly and they were not making money there, so the bank decided to close the branch.
To me, it is systemic discrimination. It is systemic discrimination among the six leading banks in this country. They make billions of dollars of profit, but they come to the conclusion that in that neighbourhood they close the branch because the people at the desk spend too much time answering too many requests from people who sometimes cannot even write their name.
I feel that this is the overall attitude of society to the poor, and it must be addressed when we discuss social condition. It is not only to be right as a individual on one-to-one basis, it is to be right as a society to the poor.
This is very important. It is even more important sometimes than just being right and straight with one person who is poor. A society must be right in itself. A society must be right in its treatment of seniors and the handicapped and all minorities.
This is not only a question of one to one. It is a question of the attitude of a society towards its poor. These changes are fundamental. They essentially question our overall approach not only as individuals but as a system, the way we structure our society between the weakest and those who do not need any kind of further protection. This is essentially what this bill means to me.
I urge that this discussion take place with all its legal implications because the federal government has a role in that. I look in this document and I see named the provinces where social condition is a prohibited ground for discrimination and those where it is not. We must take that into account as a federal government. We have a role to pay at this time in our country. We need to move. We must give a signal to Canadians that social condition is a ground which is protected against discrimination. This is, too, an important question we must ask for ourselves at the same time when we vote for this bill.
Senator Gigantès: Could you take a stab at some definition of "social condition"? It is a term which Senator Lewis, Senator Moore and I find imprecise. You could actually say some of the things that are accepted as included under this definition of a new reason for anti-discrimination legislation.
Senator Cohen: I will read to you number 5:
The term "social condition" is not defined in the Quebec Charter of rights and freedoms. In case law, the Tribunal has observed that the definition of "social condition" is both objective and subjective. The objective is a person's standing in society and is often determined by education, occupation, income family background, et cetera, while the subjective deals with the perception drawn by others from these various objective elements.
That is the closest definition we can give at the moment.
Senator Gigantès: I think you could go a little closer. Could you give it a stab? You are three very bright women. Come back to us with a little paragraph which we will put in the bill saying not what is said here about being subjective or objective but giving a meaning for "social condition."
Senator Cohen: Professor Jackson may be able to do just that for you.
Senator Gigantès: I would like it in the bill.
Ms Palumbo: Obviously, if honourable senators would like "social condition" defined, we can do that. There is nothing prohibiting you from doing that. You can decide to do that. I suppose, at this stage in the game, it may be a little early. You may wish to hear from other witnesses who may have ideas about that.
Senator Gigantès: We will hear from other witnesses, but I am saying that at least three of us find the term to be insufficiently defined. We are in agreement; the bill will pass. Do not worry; you will have our votes, but, frankly, even though I am not a lawyer, that imprecision and lack of definition of terms makes for bad law.
Senator Cohen: We welcome that suggestion. We will discuss that. I thank you for that.
The Chairman: I would suggest that as the witnesses for this bill come before us, and perhaps Ms Jackman will be back again, that you keep in touch with all the presentations. Perhaps you can come back to us with a suggested definition.
Senator Cogger: Senator Cohen, it seems to me that under the term "social condition," essentially you are driving at income and the source thereof. If you look at those definitions here, all the provinces who have something along those lines do not refer to the level of income; they refer to the source of income. The source, of course, is an easy way to identify the level presumably. Let us call a spade a spade. If welfare is what you are driving at, then presumably most people know approximately the amount.
In the case law of the tribunal, as explained by your researcher, the notion of social condition will encompass most of these elements; but then again some of the other elements are referred to in the Human Rights Act itself. Family background is mentioned but, in the other case, you have marital status and family status. Is that not more or less the same thing? Are we trying to cast too wide a net which can complicate things unduly, when we are really driving at income?
Senator Cohen: Twenty-five per cent of working Canadians are poor. We are not just looking at the welfare recipient. We are also looking at the working poor. I do not think we are casting too wide a net.
Senator Cogger: I do not suggest source of income as do the provinces. However, I am saying that if the purpose to prevent discrimination on the basis of income, then let us call it that. Let us not disguise it under a fuzzy wording called "social condition" which will try to encompass other things, some of which are already covered in the Human Rights Act. That merely makes it more difficult for the person who suffers discrimination to make his own case.
Senator Cohen: Your point is well taken. Obviously it has been repeated a few times around the table. We will revisit it ourselves. I am hoping that your other witnesses will address it.
As Senator Joyal said, rights are emerging as we live. Every 10 or 15 years they change. At the moment, 1.5 million children live in poverty. They are the people about whom we are worrying. I understand what you are driving at. I have accepted it. I asked the same question I asked before, but we shall certainly discuss it.
Senator Kinsella: On a point of order, did I understand you to say that it is the intent of this committee to call officials from the Department of Justice and of the Human Rights Commission?
The Chairman: I said this is something the steering committee will have to examine.
Senator Beaudoin: The more I think about it, the more I feel we need more in the explanatory notes. We do not have very much, really. It is not part of the bill, but I am sure that Ms Palumbo or Professor Jackman may attend with one or two paragraphs to explain why it is there.
I have no problem with "social condition." I think the court will be able to define that adequately. However, for those who are reading the bill for the first time in the Senate and in the House of Commons, it might be advantageous to have one or two paragraphs of explanation.
Senator Cohen: I agree with that.
Senator Beaudoin: I believe that Senator Joyal had a good idea about the covenants. I think that the international instruments deal with that, but you should check on that before we affirm anything.
If it is in the international covenants or the European covenants, it should be referred to in the explanatory note. The bill, which is already very good, will then be even better.
Senator Cohen: Thank you for that. Yesterday in the house, the Deputy Leader of the Government brought to our attention the fact that we were signing many covenants with the United Nations and we must take a stronger look to see if we are adhering to what we have signed.
That is something that should be on the record because we are discussing this whole area.
Senator Beaudoin: In the field of human rights, we have a lot to learn. We have different histories for charter of rights, namely, first, second and third generation. They also deal on an international and a continental basis. This is interesting.
Senator Cohen: I have been going to bed after midnight for two or three weeks. It looks like I will have my summer reading prepared for me.
Senator Gigantès: Let us not make this into an Iliad-sized exploration of what has been said about human rights over the ages. You would have to quote from Isaiah and Jeremiah, very important philosophers on this issue. Give us as concise a definition of what you mean by "social condition" -- one on which a lawyer and a judge could hang their hats. That is what we are doing. We are writing legislation, not writing a history of discrimination through the ages.
Senator Cohen: From what you have heard today, what would you consider a concise definition of "social condition."
Senator Gigantès: You have worked in this field. You have thought about it. You have two excellent people on either side of you. The particular trio that I am facing can do a better job than I can. I am asking you to do it instead of doing it for you because I have not been concentrating on this field. I fully agree with you that there is such discrimination. I am saying: Make it easier for a case that goes to court to be argued.
Senator Cohen: We will do so.
The Chairman: Senator Cohen, I think you realize that there is significant agreement around this table with this bill. However, the questions that have been raised have been raised to me not only here but also in the chamber by other members. I would take that into consideration.
We have been referring to this sheet that you handed around entitled "Poverty and Provincial Human Rights Legislation." Since things that are handed around do not form part of the written record of this meeting, perhaps you could tell us which specific provinces have this in their own legislation and how they word it.
Senator Cohen: Certainly. Unfortunately, we start with New Brunswick, which does not include anything. I apologize for my home province.
Nova Scotia does not define "source of income." The Human Rights Act includes "source of income" as a prohibitive ground of discrimination with respect to all activities protected under the act, but it does not define "source of income."
The Prince Edward Island Human Rights Code is like New Brunswick; it does not include "social condition, social origin, source of income" or "receipt of public assistance" as proscribed grounds of discrimination.
The Newfoundland Human Rights Code states that "social origin" is a prohibited ground of discrimination with respect to all activities. The term "social origin" is not defined in the Newfoundland Human Rights Code and has not been examined in its jurisprudence. Experts presume its definition is narrower than "social condition."
In Quebec, the Charter of Rights and Freedoms includes "social condition" as a prohibited ground of discrimination. As we read before, the term "social condition" is not defined in the Quebec Charter of rights and freedoms. In case law, the tribunal has observed that the definition of "social condition" is both objective and subjective. The objective is a person's standing in society is often determined by education, occupation, income family background, et cetera; the subjective deals with the perception drawn by others from those various objective elements.
The Ontario Human Rights Code provides that receipt of public assistance is a prohibitive ground of discrimination with respect to the occupancy of accommodation. The Ontario Human Rights Code does not define "receipt of public assistance." Case law has included welfare and mother's allowance.
The Chairman: It is just for accommodation in Ontario?
Senator Cohen: That is right.
The Manitoba Human Rights Code includes "source of income" as a prohibited ground of discrimination with respect to all activities protected under the code. The Manitoba Human Rights Code does not define "source of income," but case law has found discrimination based on the receipt of social assistance as contrary to the act.
The Saskatchewan Human Rights Code prohibits discrimination on the basis of the receipt of public assistance with respect to all activities covered by the code, and the Saskatchewan Human Rights Code defines the term "receipt of public assistance" as "receipt of assistance as defined in the Saskatchewan Assistance Act or "a benefit as defined in the Saskatchewan Income Plan Act."
In Alberta, the Human Rights Citizenship and Multiculturalism Act includes "source of income" as a prohibited ground of discrimination with respect to all of the activities protected under the act. The Alberta Human Rights Citizenship and Multiculturalism Act defines "source of income" as meaning "lawful source of income."
British Columbia joins New Brunswick and P.E.I.; it does not have any human rights code legislation.
The Yukon Territory does not include "social condition, social origin, source of income"; however, this is something they are currently considering.
The Northwest Territories Fair Practices Act does not include "social condition, social origin, source of income" or "receipt of public assistance" as proscribed grounds of discrimination.
The Chairman: Thank you. I have a drafting concern to raise, as well. When you are looking at definitions, perhaps can you look at this one as well.
When we were studying Bill S-5 in the fall, we amended clause 16(1) to add "sexual orientation."
Mr Palumbo: I am fully aware of that. That bill is before the justice committee in the House of Commons and has not yet passed.
The Chairman: That is correct. If it does pass there before we come to any conclusion on this bill here, you may have to add another amendment.
Mr Palumbo: Yes; we may have to delete clause 3. We are fully aware of that.
The Chairman: Thank you for your presentation.
The committee adjourned.