Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 25 - Evidence
OTTAWA, Wednesday, May 13, 1998
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-5, to amend the Canadian Human Rights Act in order to add social condition as a prohibited ground of discrimination met this day at 3:58 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: I see quorum. This session of the Legal and Constitutional Affairs Committee is called to order. We have before us once again Professor Martha Jackman, from the Faculty of Law, University of Ottawa. Professor Jackman, the table is yours.
Professor Martha Jackman, Faculty of Law, University of Ottawa: Thank you. I thank the committee for inviting me to come again to speak to you. It is a privilege and a pleasure. I commend Senator Cohen for this important initiative. Clearly from my reading of the transcript of her own opening remarks, this committee is taking the bill seriously and studying it carefully. I hope that you will be able to support it.
I would like to briefly reiterate some of the points that I made in November with respect to the need to amend the Canadian Human Rights Act to add social condition as a prohibited ground. Then I would like to allude to a few events which have occurred since November, and which reinforce the need for the Senate to act to adopt this bill.
I mentioned in November that the Canadian Human Rights Act is a cornerstone of Canada's commitment to anti-discrimination and equality rights principles. I also underlined its importance in terms of the provincial codes and the back and forth between interpretation of the federal code and the Canadian Charter of Rights and Freedoms.
We also discussed the issue of poverty and the failure of the act to include poverty, which is one of the most egregious forms of discrimination within Canadian society at the moment, but one which is nevertheless not included under our federal Human Rights Act.
I also spoke to you about the role of the Senate in terms of this bill and the fact that the Senate is perceived as being more immune to political pressure from the executive branch. Certainly, the federal executive has not been anxious to move on this particular issue, and I think anti-poverty groups are looking to the Senate with great hope that the Senate will be able to finally get this legislation on its way.
As Senator Cohen mentioned, social condition, or grounds analogous to social condition, is already provided under several provincial human rights codes: social condition under the Quebec code, social origin in Newfoundland, source of income in Manitoba, Nova Scotia and Alberta, receipt of public assistance generally in Saskatchewan, and in housing in Ontario. The commissioner of the Yukon Human Rights Commission recently contacted me, and she has recommended to their minister that social condition be included under the Yukon Human Rights Act. In fact, there is a private member's bill in the Yukon Territorial Assembly, as we speak, to do just that.
I also discussed in November some of the areas within federal jurisdiction in which poor people in Canada are facing direct and systemic discrimination. I gather that the National Anti-Poverty Organization (NAPO) has been invited as a witness. I will leave it to NAPO and any other witnesses you invite from the anti-poverty community to provide you with more evidence about the actual experience of discrimination by poor people. I have more of a legal and constitutional expertise, and that is what I would like to spend a few moments speaking about.
Since I spoke to you in November about Bill S-5, some events have occurred which really underline the urgency for the Senate to proceed with Bill S-11. As we feared, Justice Minister Anne McLellan has not been willing to amend Bill S-5 to include social condition as a prohibited ground, which is something she could have done. During Senator Cohen's testimony before the committee at its last hearing, the question was asked, why was Bill S-5 not amended? Essentially, because Bill S-5 did not include any particular reference to the anti-discrimination provision of the act, any attempt by this committee or the House of Commons committee to amend Bill S-5 would have been ruled out of order. It was an amendment that the government would have to make to the bill itself. The justice minister chose not to do that.
Again, the justice minister has spoken of the possibility that this amendment will be considered in some future omnibus review of the Canadian Human Rights Act at some undetermined future date, but there was certainly no promise in terms of this government's mandate. Because the act is in the process of being amended again, equality-seeking and anti-poverty groups are not optimistic that the justice minister would move any additional amendments to the act before the next election.
Since we met in November, the federal Human Rights Commissioner, Madam Falardeau-Ramsay, has continually made statements about the importance of this initiative. She referred to this in the annual report that she tabled in Parliament a few months ago. She will appear as a witness before you, and I am sure she will have more to say about that. Again, in terms of the federal government structure, the expert in terms of human rights has strongly endorsed this initiative.
The other factor which I think will be of interest to your committee is the fact that Canada is now undergoing the third periodic review of its compliance with the International Covenant on Economic, Social and Cultural Rights. The federal government, as well as the provincial legislatures, have reported to the UN committee about Canada's actions in recent years, in terms of compliance with the covenant. As I mentioned to you in November, during the second periodic review by the UN committee of Canada's compliance with the UN covenant, the committee was very critical of Canada's failure to move more aggressively to deal with the issue of poverty as a socio-economic issue, but also with Canada's failure to move to provide better protection for the poor in Canadian human rights legislation at both the provincial and federal levels.
The adoption of this bill would provide an opportunity for Canada to tell the committee that it has heard its concerns and that it has taken these concerns seriously, and that Canada takes its compliance with the requirements of the UN covenant seriously. This is something the committee recommended in its last hearing and, again, it is long overdue.
Another factor, which I am sure many of you noted, was the recent report of the National Council on Welfare on what has happened regarding poverty in Canada over the past few years. As the council underlined, poverty in Canada is increasing rather than decreasing. The fact that we are supposedly experiencing an economic boom has not changed the economic circumstances of large numbers of Canadians. The gap between rich and poor in Canada is increasing, and this is really quite a shameful thing. The council also underlined the increasing vulnerability of particular subsets of the poor, very notably, women and children in sole-support families.
Most important from a constitutional law perspective, is the Supreme Court of Canada's recent decision in Vriend v. Alberta. As I am sure you all know, the Vriend case involved a challenge to the failure of the Alberta Individuals Right Protection Act to include sexual orientation as a prohibited ground of discrimination. That under-inclusion was challenged by Mr. Vriend all the way to the Supreme Court of Canada. Essentially, throughout, the respondent Alberta government claimed that it was under no constitutional duty to act to increase the scope of the legislation to protect gays and lesbians. The Alberta government argued that gays and lesbians enjoyed all the same protections as everyone else, in terms of the grounds that are already enumerated under the act.
The Supreme Court of Canada was not sympathetic to that reasoning. It found that the Alberta Human Rights Act was discriminatory in two ways. First, the court found that the act discriminated between gays and lesbians, clearly a disadvantaged group, and the other groups that were protected under legislation, such as women, religious minorities, et cetera. But more egregiously, the court found that the under-inclusion of the Alberta Human Rights Act in terms of sexual orientation discriminated between gays and lesbians and the rest of the community. While heterosexuals are protected against the forms of discrimination which they are most likely to suffer, gays and lesbians are not. The court concluded that this failure of the Alberta legislation to protect gays and lesbians from the form of discrimination to which they are most vulnerable was a violation of the equality rights provision of the Canadian Charter. The remedy that the court granted was to read sexual orientation into the Alberta legislation. This was a unanimous decision of the Supreme Court of Canada in terms of the substance, with a dissent by Justice Major only on the remedy. He would have sent the issue back to the Alberta legislature.
The reasoning of the court in the Vriend case is clearly and directly applicable to the situation that we are discussing. Like other disadvantaged groups, which are expressly enumerated under the Canadian Human Rights Act, the poor are subject to discrimination, negative stereotyping, marginalization, social, political and economic exclusion. While the Canadian Human Rights Act protects middle-class Canadians from the forms of discrimination from which they are most likely to suffer, the Canadian act fails to extend the same protection to the poor. Consistent with the Supreme Court of Canada's reasoning in the Vriend case, I can say now, with even greater conviction than I did in November, that the under-inclusiveness of the Canadian Human Rights Act with respect to the poor and the failure of the act to protect the poor from the form of discrimination to which they are most vulnerable -- discrimination based on their social condition -- is clearly a violation of section 15(1) of the Charter.
As I exhorted you in November, with Bill S-11, there is an opportunity for the Senate to remedy this situation, which is inequitable not only on strict constitutional grounds, but also on broader social, ethical and, I would argue, democratic ones as well.
In conclusion, I would say, as I did in November, that this is a very important and long overdue initiative. I commend you for taking it seriously. I urge you to find it in your conscience to support this bill. Furthermore, I hope that you will work with your colleagues in the House of Commons to ensure swift passage of the bill through the House of Commons as well. Clearly, for poor Canadians, it is an important symbolic victory for this bill to pass in the upper house, but it will not be law until your colleagues in the House of Commons also adopt the bill.
I should like to thank you again for inviting me. I am willing to entertain any comments or questions that you might have with respect to what I have said today, or to any other issues relating to this bill.
Senator Cohen: Thank you for being here today and for being one of my mentors from the beginning of this bill.
I wish to ask you to clarify "social condition." Several people around this table have had a problem with this definition. It was suggested that if we are speaking about discrimination, why do we not say "poverty" rather than "social condition"? I should like your comments on which word is more appropriate and what you would suggest.
Ms Jackman: I read the transcript of the last hearing. I noted that a number of senators were preoccupied by this. I sympathize with the suggestion that if we are talking about poverty, why do we not entrench a prohibition against discrimination based on poverty.
This issue has been discussed within the anti-poverty community. I can tell you that there is a consensus within that community that social condition is the most desirable way of encapsulating the form of discrimination which they feel they experience. For it is clear that the target of the discrimination to which I have referred today and in November are poor people, people who are economically disadvantaged.
For the poor, the discrimination which they experience is not merely discrimination relating to their economic circumstances. The difficulty with entrenching discrimination based on poverty, as opposed to social condition, is that, as some of the members suggested in the last hearing, there is some risk that the debate then becomes one around economics: Who is poor, what is poor?
We do not have any social policy consensus in Canada at the moment, even on poverty. We talk about the Statistics Canada low income cut-off lines. In popular social policy parlance, these are described as poverty lines. However, Statistics Canada does not characterize these as poverty linings. There have been competing poverty lines proposed from the left to the very far right of the political spectrum, in terms of alternative definitions by the CCSD, the Montreal Food Dispensary, by the Fraser Institute and others.
In terms of the people who experience this type of discrimination, it is not a useful focus for the debate. Poverty, in terms of economic circumstances, is an important element in the discrimination which they experience. However, many Canadians still contest the notion that welfare recipients are poor. The suggestion has been made in some court decisions by Canadian judges that welfare programs are established to alleviate poverty. If you are a welfare recipient, you are not disadvantaged; you are advantaged by the state.
Again, to entrench a prohibition against discrimination based on poverty does not really encapsulate all the dimensions of the type of discrimination which people experience. That discrimination relates not only to their economic circumstances, but to all the social and political stereotypes that emanate from being poor.
Again, the advantage of talking about social condition rather than poverty is that, within social condition, we encapsulate notions like source of income, receipt of social assistance, perhaps even the status of being unemployed. These are all conditions that tend to go together, but do not necessarily always.
In some circumstances, working poor are subject to the same discrimination as welfare recipients. In other circumstances, welfare recipients are the victims of a very specific type of discrimination, based on the notion of the deserving and undeserving poor.
As Senator Cohen mentioned in her testimony at your last committee meeting, there is a thoughtful and useful directive from the Quebec commission about this. It is a notion which, in the human rights discourse and scholarship, has an accepted meaning. This is what the commission and the courts would be drawing from when it comes to deal with these types of complaints. This is not a concept that will create difficulties in terms of the process which the Human Rights Act sets up, which is a process to permit people to complain about the discrimination which they have suffered. It then offers the target of the complaint the opportunity to argue that this is justified.
Senator Gigantès: I understand what you have just said. I fully sympathize with this bill. I want something in the nature of a footnote that repeats what you have just said, that in other words defines what we mean by "social condition" in this bill. Otherwise, a widower has a social condition. There are rich and poor widowers, young and old. I do not like putting an imprecise term in the law. That does not mean we cannot use this euphemism because anti-poverty groups prefer it to poverty; it covers more than poverty. Surely we can find some language to put in the bill that will say that by "social condition" we mean the following, for the purposes of this bill.
Ms Jackman: In your previous meetings, two suggestions were put forth about how you might accomplish that objective. This objective provides direction to the commission, the courts and to potential complainants. The first suggestion was to define social condition within the bill; and the second was to include in the bill a preamble-type statement.
I would strongly discourage you from including a notion of a definition within the bill because this would be anomalous. There is a significant amount of literature about the idea of race being essentially an artificial concept. We have race, religion and other grounds within the bills. The courts and commissions have wrestled with this relatively successfully.
The advantage of a preamble-type statement is significant. It would provide an additional tool to the commission and to complainants when complaints go from the commission to the courts for judicial review. You can look at the provision and you can say that we have clear parliamentary history here, we have the preamble to the bill which suggests -- if the Senate and the House of Commons adopt it -- what Parliament was intending when it did this. I would strongly encourage the idea of drafting a preamble. We have discussed it. I would be happy to work on that. I have also suggested that my colleague, Bruce Porter, from the Charter Committee on Poverty Issues, work on it. He has more experience with drafting this type of document than I do.
I would discourage the committee from the idea of defining social condition within the bill, because that freezes the definition at a particular time. That is antithetical to the approach that has been taken to human rights statutes.
We are working with the international covenants that were drafted in the 1960s and the UN declaration in the 1940s. The language is evolving as society evolves.
Senator Gigantès: You mentioned the courts. The courts look at the intent in difficult cases. What was the intent of Parliament? A preamble such as you describe would define this intent, but even a preamble would freeze it in time. Senator Cohen's assistants said they did not want it defined because that would confine it. We cannot make open-ended law. This is a euphemism for poverty, but it involves other things. We need that preamble. I am delighted to hear that you are prepared to help us in providing such a preamble.
Ms Jackman: The other element of the legislative history, which is important and is admissible evidence in any kind of judicial review, if it were to occur, is the deliberations of this committee. This is the legislative history. Even in this committee's discussions, the intentions of the legislator, which is you, are being made clear.
As I say, I support the idea of a preamble because it has a symbolic as well as a legal importance. Even if this bill goes no further than the Senate, the fact that the Senate has adopted a bill, which states so clearly this intention to deal with this egregious form of discrimination, becomes one more element that can be used in the political and legal struggle to eradicate this form of discrimination.
Senator Gigantès: When we met last time -- and you say you read the transcripts -- you saw an evolution during that discussion. Some members were accepting "social condition" at the beginning. Eventually, they came around to the idea that it might not be bad to define it further. As a guide to the courts, the transcript would be less useful than a preamble, because it was not clear what the committee meant.
Ms Jackman: Of the two options, I would strongly favour a preamble over a definition. The definition becomes part of the law, whereas the preamble is an interpretative aid, as are the committee deliberations.
Senator Gigantès: I would be happy with that.
Senator Kinsella: Professor Jackman, you mention in your opening remarks that one of the territories now has before its legislative assembly an amendment to add a new prohibited ground. What is the terminology they are using?
Ms Jackman: It is a private members' bill in the legislative assembly of the Yukon, and "social condition" is the language they are using.
Senator Kinsella: Are they providing a definition?
Ms Jackman: No. It is an even sparser bill than the one you have.
Senator Kinsella: To continue the discussion around this issue of the wisdom of providing a definition or not, how many of the prohibited grounds now in the Canadian Human Rights Act are defined?
Ms Jackman: There are no definitions.
Senator Kinsella: There is no definition for sexual orientation or religion or race?
Ms Jackman: Some of the provincial codes, rather than including pregnancy, include a provision which says discrimination on the basis of gender is interpreted to include discrimination based on pregnancy. That is a common definition, but that is the only one that comes to my mind.
The Chairman: I have been told that there are two definitions in the Human Rights Act. One is of criminal conviction.
Senator Kinsella: We have some suggestions as to how we might deal with this issue of definition. Your testimony and your recommendation is that this particular prohibited ground of discrimination not be defined because of the tendency to freeze it. Is there an argument to be made when one considers the principle as applied when interpreting section 15 of the Charter using an ejusdem generis principle? If the tribunals in Canada were looking at an issue, which we would commonly understand as unequal treatment because of source of income or social condition or social status, what guidance do we get from that constitutional jurisprudence using the principle of the ejusdem generis interpretation?
Ms Jackman: The main distinction between the federal act and the Charter is that the Charter is drafted as an open-ended guarantee. It prohibits discrimination, including discrimination on the enumerated grounds, and that has permitted the courts to then establish certain analogous grounds. It is through jurisprudence that the court has established criteria for doing that: through the history of discrimination, stereotyping, exclusion, marginalization, et cetera.
There is no Supreme Court case law on poverty or social condition under the Charter. There is some lower court case law, but very little. The case that most readily comes to mind is a Quebec Superior Court case involving a challenge by welfare recipients under the age of 30 to a workfare requirement in Quebec. Essentially, their welfare was cut to a few hundred dollars unless they participated in a provincial workfare regime. Justice Reeves in that case held that the poor were too amorphous a group for poverty to constitute an analogous ground under the Charter. He did not in his reasoning look carefully at the types of considerations that the court had been using to find analogous groups. It was a relatively early case.
Now, at the Supreme Court level in terms of the Charter, we have fairly clear guidelines from Justice McLachlin about what an analogous ground would be. When one is interpreting social condition under the Canadian act, if it were added, then those principles come to the assistance of the commission and the courts. Obviously, the dominant characteristic of the prohibited grounds and groups is disadvantage, political marginalization, et cetera.
Senator Kinsella: Is it also not true that if a tribunal is looking at section 15 and trying to determine whether or not a complainant, who is alleging a violation of his or her Charter rights on a ground that is not enumerated, turns to several jurisdictions in Canada which have social condition or one of the other terms in that act, then it makes it a lot easier for the tribunal to say that it is of the same type. Therefore, you will now include it and quite probably read it into the anti-discrimination statute.
Ms Jackman: This is one of the reasons that this bill is so important. Once a number of jurisdictions have recognized that social condition is a prohibited ground, then it has a snowballing effect. It will influence the court in its interpretation of the charter. Essentially, that is what happened in the Vriend case. The Alberta code did not include sexual orientation. The claim was a Charter claim. The claim was that it violated the equality-rights provision of the Canadian Charter, that the Alberta act was under-inclusive in this way. The Supreme Court looked at other Canadian jurisdictions, as well as international treaties that Canada had ratified, to come to the conclusion that that under-inclusion was discriminatory. They do have a mutually reinforcing effect.
In Justice McLachlin's decision in Miron, recognition under provincial and federal human rights statutes is, in itself, a criteria for finding an analogous, non-enumerated ground under the Charter.
Senator Beaudoin: We do not have jurisprudence at the level of the Supreme Court on the meaning of the words "social condition". That is what you said. The Gosselin case in Quebec is not directly on the Canadian Charter of Rights. It is on the Quebec Charter of Rights, section 10.
Ms Jackman: It is both section 15 and section 10.
Senator Beaudoin: The expression that appears in the Quebec legislation is not "social condition". It is the equivalent of that, of course.
[Translation]
Ms. Jackman: In the Quebec Charter, the guarantee is about discrimination based on social condition.
Senator Beaudoin: Both words are there?
Ms. Jackman: Yes.
Senator Beaudoin: So, that term has already been interpreted by the Superior Court?
Ms. Jackman: Yes, and Mr. Justice Reeves based his interpretation both on the Quebec and the Canadian Charters. Both charters have been pleaded.
Senator Beaudoin: That is a very clear test case, then.
Ms. Jackman: Yes.
Senator Beaudoin: But is there no jurisprudence at the Court of Appeal or at the Supreme Court levels?
Ms. Jackman: No.
Senator Beaudoin: We can also find, in clauses 45 and 49 of the Quebec Charter, the phrase "susceptible of ensuring such person an acceptable standard of living".
[English]
This is pretty close to "social condition", but not exactly the same.
Ms Jackman: No.
There are two types of parallel provisions, certainly in the international codes. You have anti-discrimination provisions and then substantive equality guarantees, like a right to housing or food, or the equivalent provisions in the Quebec Charter, which make it very progressive in Canada in that regard.
We are talking about a traditional anti-discrimination guarantee. You are prohibited from discriminating against an individual because of his or her membership in a group or based on a characteristic which is social condition.
Senator Beaudoin: My second question has to do with the Vriend case. In this bill, we have social conditions. That is clear. It has already been defined by some courts in this country. I do not have any problem with that.
Suppose we do not do that in this bill. Is it possible that the Supreme Court one day would come to the conclusion, as they have in the Vriend case, that because of their reading, they may read social condition into a statute where it is not? It is based on discrimination in both cases.In the Vriend case, it was sexual orientation, and in this case, of course, it is another kind of discrimination. Are you going that far?
Ms Jackman: I have, many times.
Senator Beaudoin: I do not disagree with that.
Ms Jackman: I made that very point in November. I have a scholarly article that I will share with you. I argued that the failure to prohibit discrimination against the poor violates the Canadian Charter. If this were litigated to the Supreme Court, it would be read in. I feel this is a doctrinally conservative stance. This is just about the only ground that is so egregious and so widely recognized that is not included. Why is not it included? Because this group has no powers. They are politically marginalized. How can justice minister McLellan say that they will deal with it later? This group has no power.
Senator Beaudoin: The logic of the jurisprudence is strongly in your favour.
Ms Jackman: In November, I argued that if there were a Charter challenge based on the under-inclusion of the Canadian act, that it would be successful. With the Vriend decision, my factum is there.
Senator Beaudoin: I agree with that, but it is much better to say that in the statute itself, as my colleague is doing.
Ms Jackman: Section 52 of the Canadian Constitution states that the Constitution is the supreme law of Canada. The executive and legislative branches have a duty to comply with the Charter. We should not have to litigate to the courts and create this horrible democracy-rights false debate as occurred in Alberta, this idea that somehow the courts are behaving anti-democratically by dictating the principles to the legislatures. The legislatures should be acting on their own when such a clear case of unconstitutionality is brought to their attention.
Senator Gigantès: We talk of sexual discrimination. By that, we mean homosexual.
Senator Beaudoin: Sexual orientation.
Senator Gigantès: Sexual orientation means other-sex relationships, really. You do not generally discriminate against people of different sexual association. I agree that we should not discriminate, but animalism is a sexual orientation.
I am talking in favour of precision, not in favour of the concepts. I am making a point about precision. I do not like terms that can be interpreted in more than one way. I do not like the word "egregious" because it can mean extremely bad or extremely good, and we should drop it.
"Sexual orientation" is not a precise term. I do not like it.
The Chairman: Senator Gigantès, we are not discussing that particular amendment to the Human Rights Code. That is over and done with. We are discussing social condition.
Ms Jackman: I think sexual orientation is a good example because it illustrates that a term which might appear imprecise in the abstract has a very well-established, well-defined legal meaning, to the point where one would almost not think of interpreting it any other way.
I think this illustrates that certain expressions in human rights law become normalized, sexual orientation being one and social condition being another.
Within the Canadian legal culture and tradition, social condition now has a well-established meaning, as does sexual orientation. It will preclude a lot of claims of the type that I think Senator Gigantès is concerned about because they do not encapsulate the idea of disadvantage.
Being a widower is a social condition, but it is not one that immediately makes one think of disadvantage or marginalization.
The Chairman: The bill already covers marital status, I might point out.
[Translation]
Senator Joyal: In your opening remarks, you referred to the International Covenant on Human Rights. Is the notion of social condition explicitly mentioned as a prohibited ground of discrimination in the international instruments to which Canada is a party?
Ms. Jackman: No.
Senator Joyal: In none of them?
Ms. Jackman: Not that I know. I am not an expert on international law, but I would think that social condition is not encapsulated into those instruments as a prohibited ground of discrimination. As I mentioned, what are guaranteed in international covenants, for example, are some systemic equality rights like the access to social security benefits and to health services. It probably illustrates the way those things were seen when those treaties have been adopted, that is, in the years 1940 for the Universal Declaration and in the years 1960 for the agreements or covenants.
Senator Joyal: In the case of the European countries, does the European Charter of Rights formally mention social condition as a prohibited ground of discrimination?
Ms. Jackman: Yes, though I must confess my ignorance of the European legislation. I read the transcript of your hearings only this morning, but I undertake to check that information and to forward it to the senators. I know that at your last meeting the question was asked, but I undertake to provide you an answer in writing shortly concerning the European agreement and other regional covenants, if there are any others available. I suspect that there may also be some constitutional instruments in the case of South Africa and India or possibly some regional covenants for South America.
[English]
The Chairman: If I may interject, Article 2 of the United Nations Universal Declaration of Human Rights, says:
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Social origin and property are in there.
Senator Joyal: The reason I raised the issue is because the notion of social condition, as Professor Jackman has stated quite clearly, was not a ground of discrimination recognized by society when the United Nations Charter of Rights was proposed in 1948. Of course, through the years, there has been, as you properly stated, many regional instruments and international instruments that complemented the United Nations Declaration. That Declaration established a broad framework but, in fact, if you look into all those regional and complementary instruments, there are many notions in there. Senator Beaudoin, who has studied that for part of his life, knows that we always try to see if the subject we are studying could fit into one of the headings of the United Nations. There is no doubt in my mind that there have been more recent international instruments, as you said, in the late 1960s, early 1970s, which have been discussed and amended and that refer to social conditions on the basis of what we have in mind. I am speaking of instruments that essentially relate to the economic means of the person and their associated standard of living.
This is essentially what one has in mind when discrimination is discussed. Those of us who watched television last night discovered that a bank had asked someone for $25 more to open an account because the person was on social assistance. That could be interpreted as grounds for discrimination based on social condition. Another citizen who was not on social assistance would be able to open an account with only $5.
That is discrimination. In all fairness, the bank in question the next day issued a statement that it will stop that procedure. This is a clear illustration to me that this is discrimination on the basis of social condition. It is essentially because the person received assistance from governments in a certain number of circumstances that the person is discriminated against. The burden on the person is greater than on other grounds.
I realize, Professor Jackman, you are in that field on a continuous basis, just as is Senator Beaudoin, and I feel it is an important element of information for us to know about the regional instruments related to human rights so that we could get to the same initiative if there have been decisions at the European court level about the interpretation of that. If you can do that at the same time, it would be very helpful for the members of this committee.
The Chairman: For the record, I have two of these regional examples here. I do not have any results of court decisions on them. The Council of Europe, European Treaties Convention for Protection of Human Rights and Fundamental Freedoms, which was begun in 1950 but added to in protocol number 8 in 1985, repeats almost exactly the same words as the United Nations Declaration.
The Inter-American Commission on Human Rights, the Organization of American States, dated 1996, uses slightly different language but it uses the terms: national or social origin, economic status, birth or any other social condition.
Senator Joyal: Could this be used to fight discrimination on the basis of social condition, if someone happened to belong to the Métis people, for instance? For many reasons, people wish to have special exclusions or conditions imposed upon a group.
Sometimes I am puzzled. For example, when Senator Gigantès says that when we legislate, it should be meaningful, there should be common understanding per se, on what we wish to do. On some other grounds, I prefer that the notion be flexible, so that through the years the interpretation could adapt to the social recognition of some non-discrimination. There are two schools of thought. I do not say that I share the point of the restrictive definition. On the contrary, I am leaning towards a motion which is more flexible and allows the courts to adapt the interpretation to what people or society at a given point are able to recognize as a non-discriminatory situation, or a situation that should be banned.
I feel that it would be helpful, certainly following your remark, Madam Chairman, if Professor Jackman could research how the European court might have interpreted that.
The Chairman: Professor Jackman, please follow Senator Joyal's suggestion through and, if there is some case law, let us know about it.
Ms Jackman: I will discuss that with some of my international colleagues.
The Chairman: If we receive anything from you, we will circulate it immediately.
Senator Bryden: A few things concern me. The broader the terminology, the more apt it is that the courts will end up making the law, not Parliament. I come from an old school that says parliaments make laws, and courts interpret them. Since the Charter of Rights and Freedoms, indeed, I feel that may have been somewhat reversed.
The broad term "social condition," which has now become quite understood by many people, includes what? I assume there are things we have not seen under the sun that would be caught under that.
For example, if a family is denied the opportunity to rent an apartment on the basis that they are addicted to drugs, even though they drive a nice car and are quite well off, would "social condition" give them a right of action?
Ms Jackman: That is an excellent question. Historically, addiction, in human rights terms, would be included under the ground of disability. That is the way we have been dealing with illnesses. However, might someone find it easier to plead social condition? It would depend on the circumstance. A middle-class, cocaine-addicted couple turned down for an apartment would face difficulty because the common thread to the grounds is historic and continuing disadvantage and vulnerability to stereotype and marginalization.
If you asked whether it would be discrimination based on social condition if a municipality regulated to keep crack-houses out of the neighbourhood, both the Canadian Charter and the provincial and federal codes include the ability for the person accused of discrimination to demonstrate that the discriminatory gesture was justifiable.
Senator Bryden: If, for example, a municipality denies the use of one of their properties as a halfway house because it will be inhabited by people who used to be in a penitentiary, have served their time and are finding their way back into the community, would that be prohibited under "social condition"?
Ms Jackman: That clearly would.
Senator Bryden: Even though these people were all wealthy?
Ms Jackman: Yes. One could argue that it would, even if you did not enact "social condition," because Bill S-5 included a provision about multiple grounds. We have a case like that from Winnipeg. In the City of Winnipeg v. The Winnipeg Alcoholism Foundation, a Manitoba Court of Appeal decision recognized that a municipal by-law prohibiting group homes from setting up in middle-class neighbourhoods violates section 15 of the Charter, based primarily on disability, but also on age.
Senator Bryden: Is it possible for an identifiable group to take class action under the human rights legislation?
Ms Jackman: It would depend on the province you were in and whether there was class action legislation available. I am not aware of class action, human rights litigation.
Senator Bryden: If it had happened in this day and age, I think that someone would have taken some action, under human rights protection legislation, for the incarceration of the Japanese during World War II. If you follow that logically to its end, is it not the case that the poor people in this country have an action against the rest of our system because they continue to be discriminated against?
Ms Jackman: In theory, yes, but practically, you are dealing with the law. The Canadian Human Rights Act, the Charter and the provincial codes all provide for individual complaints by individual victims about discrete individual or state action, depending upon whether or not you are dealing with the Charter. Under the Canadian code, it would be very difficult, if not impossible, to make a systemic discrimination claim about fiscal policy.
Senator Bryden: Perhaps that is the amendment we should be making to this.
Ms Jackman: It would be a lot more radical.
Senator Bryden: Whenever societies do not have the means to address their real problems, they fiddle with the edges by making various amendments and regulations. We have always had the poor, and we should have fixed the problem before. However, we do not have any money, so we will do this.
One of the dangers in that may be that there are people who pursue new items to be included in things like this. For example, sexual orientation is now included in almost all human rights legislation. There is now a bit of a movement afoot in California for gender identity to also be included in order to stop discrimination against cross-dressers and transvestites. There seems to be an endless stream of things that such people need to be protected from.
Ms Jackman: That is where we may part ways. I look at our social and political landscape and ask what are the most common forms of discrimination that people experience, and whether they are included under our federal, provincial and constitutional guarantees. Political conviction -- an example of which we are seeing here in Ottawa with the new chief administrator of the Ottawa Hospital -- is only protected in a few provinces. Apart from that, social condition or poverty is about the only one that is widely recognized and that is still not entrenched. I do not see a floodgates problem. I do not see a plethora of groups and grounds waiting. This is one group, one ground, that has been waiting a long time. Perhaps because of where I am, I do not see that many groups where the discrimination has been clearly demonstrated and where no action has been taken.
Senator Bryden: You may be absolutely correct.
I have two areas of concern. The first is, who is caught under this umbrella? We will not know that until ingenious people test it and ingenious judges expand it. The second is a much more philosophical concern, and that is that our society is fiddling with the edges. It takes money to help poor people, not only laws.
Ms Jackman: We can debate whether rights actually do anything. Being a constitutional lawyer, I believe that rights have some importance.
In terms of the floodgates issue, the guarantee of social condition has been in the Quebec charter for at least a decade. I have turned up three or four cases.
Senator Kinsella: Senator Joyal raised important questions. My understanding from my reading of the European system is that under the European Convention on Human Rights there is an article 14, just as in the two United Nations covenants, that lists the prohibited grounds of discrimination or other status, as we have, open ended, in section 15 of the Charter.
However, in the European Social Charter, there is explicit reference to guaranteeing equality and non-discrimination because of poverty.
Senator Joyal: That is what stays in my mind after reading it a while ago. I was sure it was there.
Senator Kinsella: I am sorry that Senator Bryden left. When I was the Commissioner of Human Rights in New Brunswick, we had a few cases of gender identity, which we dealt with under the prohibition of discrimination on the grounds of sex.
Senator Gigantès: How do the words "transvestite" and "gender identity" mesh? Explain that to me.
Senator Kinsella: Senator Bryden gave us his explanation.
Senator Gigantès: He just mentioned it. He mentioned transvestites, cross-dressers and gender identity.
The Chairman: I know this is a topic of extreme interest to you, but it is aside from the point of this bill that we are talking about right now. I believe Senator Beaudoin has a question to follow.
[Translation]
Senator Beaudoin: You made reference to the fact that since 1948 we have had many international instruments. They are now much more precise than was the great Charter of 1948, which was the first one to be adopted. That's why we should follow the theory which says that we should not try to define very precisely everything which is happening, because we would spend all our time amending legislation. I don't know what is your opinion about that, but for me, a constitution and a charter of rights should be written in quite general terms, otherwise we would have to change laws every week like we are doing for the Income Tax Act. No one reads the Income tax Act just for the fun of it, whereas many people read the American Constitution or other constitutional acts because they are generally well done. I belong to the second school of thought which believes that we should grant our judges a lot of power, otherwise we would spend our time legislating and amending legislation.
Ms. Jackman: That's the advantage of a model like the Canadian Charter. The way article 15 has been drafted is very good because it provides examples. The existence of a guiding principle makes its interpretation easier. That's the objective. For example, in Ontario, the case of farmworkers has been recently pleaded in order for them to be no longer excluded from the protection granted to workers in general.
[English]
It is hard to imagine we would include in our list farm workers, but that is the advantage of a more general or an open-ended list. It provides the possibility for people who are at a very specific disadvantage, like farm workers with respect to employment standards and collective bargaining legislation, to at least try to make the claim.
Senator Beaudoin: To come back to the Vriend case, I think the Supreme Court was right. Of course, it is exactly against the first theory outlined by the Senator Bryden. Senator Bryden seems to feel that we have to legislate very clearly, very precisely, and perhaps I am wrong, but I am inclined to think that he is not ready to give that much power to the judges. The Vriend case establishes clearly that the courts not only interpret the law, but they may, with the read-in theory, say that such and such a word should be in the law. In other words, if Senator Cohen has her piece legislation passed, there will be no doubt as to the law. But if she does not get that piece of legislation passed, it will be up to the Supreme Court to interpret the law by the read-in theory. The second school of thought gives a lot of powers to the tribunals and the courts. To me, it is not a big problem.
Ms Jackman: I think where Senator Bryden and I would part company is in the idea that it is anti-democratic for the courts to remedy a malfunction in our democratic system. This is what they are doing. Vriend was an excellent example of that. How can we say it is inconsistent with fundamental democratic principles for the court to step in and point out that the legislature is systematically ignoring or discounting the needs and views of a group that is weak in the process? That is why we have individual rights guarantees. Why have the executive and the legislature not moved to do this? It is because there is no political cost for not doing it. Is it anti-democratic for the court to order them to do this? I would say no. It is consistent with the idea that everyone has the right to participate in the basic institutions of their society, but I would prefer for the legislature to act and not wait for the court to force it to do so.
Senator Kinsella: There is another dimension to the same discussion. Is it not also true that over the many years during which we have had experience with anti-discrimination law in Canada, it is almost a dictum of our tribunals that liberal, generous, wide and broad interpretation is to be afforded human rights law? That speaks directly to the manner in which we deal with the drafting of the human rights law, that it should be broad, general and liberal, because that is the principle of judicial interpretation.
Ms Jackman: Yes. That is right. Here we have another analogy to tax law. Courts have adopted the same principle, the idea that the victim or the taxpayer is entitled to a generous interpretation of the law.
Senator Joyal: I think Senator Kinsella is right in principle, and I wonder if a fair compromise would not be that we could, in a preamble or explanatory note to the bill, say that we are including two or three specific elements. They will give an indication so that in fact some kind of a direction is suggested that is not limiting. That direction could be interpreted by comparison. In fact, it will maintain the objective we have as a legislature, that when we legislate, we want to have a minimum of knowledge of the immediate use of the legislation. But we will not enclose that use in a very fixed frame, so that it can be adapted to evolving circumstances. It would be something that would give us the assurance that we are not only doing something meaningful for the present, but something that will remain meaningful and useful in the years to come. I feel that there is a possibility of arriving at such a compromise, whereby we would satisfy ourselves that we are doing something right.
Senator Kinsella: There is agreement on that, I believe.
Senator Gigantès: Coming to the question of what it is the courts do, there is the case of the drunken defence. The Supreme Court acquitted someone because he was drunk when he beat a crippled woman in a wheelchair nearly to death and assaulted her sexually. The Department of Justice was not willing to touch the sacred mens rea. The Senate pushed a bill prohibiting this defence. I was the one who wrote the bill and proposed it. My basic argument was that mens rea is forgotten in vehicular homicide. Now when someone says, "I was drunk and therefore I cannot be held responsible when I was driving my car and killed someone," that is not a defence.
We are talking about an instrument. Why is it a defence when you use a baseball bat and not a defence when you use a motor car? In that case, Justice Sopinka begged us to legislate. The Department of Justice and the House of Commons did not do it. We had to do it and push it down their throats, to some extent. The courts are ambivalent on these things. Sometimes they will be generous and open-minded, sometimes they interpret generous and open-minded as a defence of the drunken brute. We must defend the rights of everyone, including drunken brutes and wife-beaters.
Senator Cohen: Ms Jackman mentioned that it is surprising that social condition or poverty, which is so widely recognized everywhere, is not included in the Human Rights Act because the group does not have power. There is no political will when you do not have power.
Senator Bryden said that what they really want is money. Yes. However, if you cannot give them money, then you must give them hope and self-respect. They must be able to live in a world that treats them the way we want to be treated. Therefore, if we cannot do the one thing, at least let us say that we are responsible for doing the other.
Senator Gigantès: In defence of Senator Bryden, he did not say that they want money. He said that it takes money.
Senator Cohen: I agree.
Senator Gigantès: If we are sufficiently generous towards the poor, our hugely rich society would find the money to help them. Instead, all we do is give them the right to litigate.
Senator Cohen: If you were in their shoes and if you experienced what they experience, you would say, "Thank God for giving me that right."
Senator Gigantès: I agree. However, I am saying that Senator Bryden was taking it one step forward and was advocating that we should also pull them out of poverty.
Senator Cohen: No question.
The Chairman: Ms Jackman, since we are all agreed, I thank you for appearing again today.
When we return from our break, the first week back, neither Senator Nolin nor myself will be here. I am asking for a motion that Senator Lewis be empowered to act as acting chairman for the week starting May 25, 1998 to May 29, 1998.
Senator Gigantès: Is Senator Lewis in agreement?
The Chairman: Yes, we made sure of that before he left.
Senator Joyal: I so move.
Senator Beaudoin: I will second it.
The Chairman: Unanimously accepted. We are adjourned.
The committee adjourned.