Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 27 - Evidence
OTTAWA, Thursday, June 4, 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 10:52 a.m. to give consideration to the bill.
Senator Pierre Claude Nolin (Acting Chairman) in the Chair.
[English]
The Acting Chairman Honourable senators, we have a quorum. This morning, we have on the agenda clause-by-clause consideration of Bill S-11, to amend the Canadian Human Rights Act in order to add social condition as a prohibited ground of discrimination.
Before we move on to this, I want to inform the committee that if we receive reference today or perhaps tomorrow on two amendments to the Electoral Act, this committee will probably sit next Monday because Elections Canada officials are available on that day.
As another point of information, our colleague Senator Jessiman is retiring tomorrow. It is my duty to thank him on your behalf for all his help and support and for the efforts he has given to this committee.
I thank you on behalf of our colleagues.
Hon. Senators: Hear! Hear!
The Acting Chairman: Regarding Bill S-11, I will recommend to this committee that we not approve clause 3. The reason is that Bill S-5 has passed the House of Commons and is now in force. So we do not need clause 3 of Bill S-11. Unless you want to force the committee to approve clause 3, I recommend that we not proceed on clause 3.
Senator Kinsella: I move that clause 1 be adopted.
The Acting Chairman: Is it agreed?
Hon. Senators: Agreed.
The Acting Chairman: Carried. Shall clause 2 carry?
Senator Kinsella: I so move.
Hon. Senators: Agreed.
The Acting Chairman: Carried. Shall clause 3 carry?
Senator Kinsella: I move that clause 3 not carry, but that it be deleted.
The Acting Chairman: Is it agreed?
Hon. Senators: Agreed.
The Acting Chairman: It is agreed. That clause is deleted.
Senator Lewis: Senator Gigantès is proposing an amendment to Bill S-11 to add a new clause 3.
The Acting Chairman: We will wait to let all the members receive it and read it.
Senator Lewis: I move then:
That Bill S-11 be amended, on page 1, by adding the following after line 29:
3. Section 25 of the Act is amended by adding the following in alphabetical order:
"social condition" includes characteristics relating to social or economic disadvantage.
The Acting Chairman: It is properly tabled. I am opening the debate on that amendment.
Senator Beaudoin: I hope that we may come to a consensus that we should leave "social condition" as it is because it already exists in Quebec law, and it works pretty well. My problem with the definition, whether it is a very short one or a definition of five or six lines, is that when you define in law, you always restrict. The disadvantage, of course, is that the judges, with those two words, have much power.
Even if we add the two lines which you are suggesting on behalf of Senator Gigantès, the last word will still be with the courts. One way or the other, we cannot escape the interpretation of the tribunals.
When we talk about the Charter of Rights and Freedoms, for example, regarding property rights, some people say it takes 20 lines to talk about it. Finally, most drafters of charters say "human rights" and that is it. We say "property rights," period. It is my view that we should leave "social condition" without a definition because there is already a jurisprudence on this. The tribunals, the courts of justice will define it and that definition may evolve. Speaking for myself, I would prefer not to have an amendment and to leave Senator Cohen's bill as it is.
Senator Kinsella: Honourable senators, you will recall the testimony of the Chief Commissioner of the Human Rights Commission, Madame Falardeau-Ramsay. We questioned her specifically on this point. I felt that it was important to have her testimony, as one who administers the Human Rights Act on a day-to-day basis.
As I recall her testimony, she said most of the proscribed grounds of discrimination contained in the Canadian Human Rights Act are not defined. She said that the kinds of arguments and concerns that have been raised around the absence of a definition for social condition were the same kinds of arguments raised when other prohibited grounds of discrimination, which are now in the act, were before Parliament. From a practical, applied standpoint, the Human Rights Commission never met with any difficulty.
For example, more recently, we have dealt with the addition of sexual orientation to the Human Rights Act. Again, I recall that there was a discussion on whether that ought to be defined. Parliament decided it ought not to be defined as race was not defined, nor were the other proscribed areas of discrimination.
Her testimony, based upon the applied experience of administering the act, weighs heavy in my judgment. I think it better that the act proceed without this amendment.
Senator Jessiman: I wonder, Mr. Chairman, if I might ask Senator Beaudoin a couple of questions.
Senator Beaudoin, you say there is jurisprudence on this in Quebec?
Senator Beaudoin: Yes.
Senator Jessiman: Do you know if there is any jurisprudence anywhere else?
Senator Beaudoin: That is a good question. I would be inclined to agree with Senator Kinsella that when Madame Falardeau-Ramsay came here -- if I am not mistaken and you can correct me if I am wrong -- she said that it is not defined anywhere in our country. In Quebec law, it certainly is not defined.
Senator Moore: It is not defined in the act. It is defined by case law.
Senator Jessiman: I want to know what the case law says. How do they define it? I agree that we should leave it because by defining it, you limit it. I want to know what the courts say. Has there been any limitation put on it at all by the courts?
Senator Beaudoin: The only document we had at that time did not include any opinion on the jurisprudence. The judge in the case said that it is the law; it is not defined but it does not raise any problem. That is all she said. I do not have a precise case on this.
Ms Mary Hurley, Researcher, Library of Parliament: The case law has been developing in the province of Quebec over the years. The addition of social condition to the Quebec charter, Le Charte des droits et libertés de la personne, first occurred in 1977. Over the years, the case law has been developing and, in fact, the Quebec courts and tribunals have been evolving a definition.
I can give you a sample which is pretty consistent with what I have been reading in the case law. This is a 1993 case, which is referenced frequently, called Commission des droits de la personne du Québec et Johanne Drouin c. Léonard Whittom et Jean Lavallée. It is reported in the Canadian Human Rights Reporter. Not too many of these decisions have been translated, but this one has.
This is a decision of the Tribunal des droits de la personne du Québec, by Judge Rivest. She describes social condition as follows:
Social condition was first defined by Judge Thomas Toth in a decision rendered over 15 years ago:
...The learned attorney of Petitioner claimed: ...in popular speech, "social condition" refers to the rank, place, position that a person holds in our society, through birth, income, level of education, occupation; all the circumstances and events that mean a person or group has a certain status or position in society. The Tribunal agrees with this statement.
Judge Rivest goes on to say:
The notion of social condition was recently studied and defined in these terms by the Human Rights Tribunal.
...the status of a person in a community, in particular, through his origins, level of schooling, occupation or profession and income, and through the perceptions and representations which, within the community, are associated with these objective data.
That is from the Whittom case.
Senator Jessiman: Is that a superior court case?
Senator Beaudoin: No, it was heard by a provincial tribunal that specializes in human rights.
Senator Moore: Mr. Chairman, in reading through the two suggested amendments, the key word is "disadvantaged." I would like to have the comments of some other senators on this. Does it not beg the question? You would not be considered under this act unless there was some perceived disadvantage.
The Acting Chairman: I just want to make sure that we are working on the same piece of paper. We have two pieces of paper before us, but only one paper contains the present proposed amendment. That is the shorter one.
Senator Moore: In dealing with the shorter amendment, the one which has been proposed, it seems to me that if you did not feel that you were disadvantaged, you would not be before any tribunal. Right? It seems unnecessary to have this amendment.
Senator Beaudoin: It is redundant.
Senator Lewis: Although I presented this short amendment, Senator Gigantès offered an alternative. The second version is broader and would expand the definition. It may make things worse. If the first definition is not accepted, I do not see much point in proposing the second one because it goes further.
Senator Moore: It seems to me that everything in the longer proposed definition is covered by the definition contained in the case, as read out by the researcher. There is case law on record that gives us the basis for determining definition and guidelines.
Ms Hurley: That is from 1993. There are other cases which are more recent.
Senator Beaudoin: I want to add here that it is either in the act or in the jurisprudence. We have a case mentioning many possibilities. If we use the second proposed definition, you restrict. It is always the same question. Is it better to leave it to the courts to define a term as society is evolving, or is it better to have it right away in the text where, in my opinion, it is frozen?
The Acting Chairman: The committee will decide.
Senator Lewis: Following along what you are saying, the second one would be more restrictive.
Senator Beaudoin: Of course, yes.
Senator Joyal: In the judgment as read by our researcher, the judge refers to a definition given by Justice Tôth. In which case did Justice Tôth render that judgment? That will answer an additional question about the level of the court that decided upon the matter. I want to go further than the judgment from the Quebec human rights commission.
Ms Hurley: I can tell you that the decision from I which I just read was upheld by the Quebec Court of Appeal in 1997. To answer your question regarding the judgment of Justice Tôth, that was in the case Commission des droits de la personne c. Centre hospitalier St-Vincent de Paul de Sherbrooke, in the Superior Court in 1978.
The Acting Chairman: The appeal court also upheld the decision in Whittom, which made mention of the Superior Court decision that included the definition written by Justice Tôth.
Senator Lewis: I have just received a third proposed amendment that would say that social condition, in respect of a person, includes occupation, income level, receipt of social assistance, education level, social origin, or any other characteristic relating to social or economic disadvantage.
The Acting Chairman: Justice Rivest mentioned that in her decision.
Senator Beaudoin: We may say that since it is in a judgment which has been confirmed, it is part of the law.
Senator Lewis: And therefore it is unnecessary.
Senator Moore: Mr. Chairman, whether it is the first, second or third proposed amendment, as Senator Beaudoin has mentioned, it will still come down to a judge sitting there listening to the facts presented in front of him or her and making a decision based on that. It will still be the judge who will say that, given all these facts, this is or is not a social condition which is, in his or her judgment, worthy of an award or consideration for an award. It will still come down to that. I do not know how we can make it any more perfect than just leaving it as it is.
The Acting Chairman: Do we have a consensus? Do we want to register a vote that we do not accept the amendment?
Hon. Senators: Agreed.
The Acting Chairman: We have consensus that the proposed amendment of Senator Lewis, on behalf of Senator Gigantès, is defeated.
Senator Grafstein: Mr. Chairman, on a narrow point, social condition can mean rich or poor, advantaged or disadvantaged.
Senator Beaudoin: That is why I like it undefined. Everybody has a social condition, in a way, but some conditions are rarely disadvantaged.
Senator Grafstein: We cannot then discriminate against multimillionaire Conrad Black because of his wealth. We will never be able to do that. I am not saying it jocularly. It is a neutral term and it does not mean a disadvantage. It indicates a condition, a status. It is a neutral statement.
The Acting Chairman: Tribunals are taking a very broad meaning. It is not the social condition; it is how people treat you because of your social condition. That is the concern of the tribunal. That is why I understand that there is a consensus around the table.
Senator Beaudoin: As Senator Moore said, if you go before the court, you want to obtain something. You feel disadvantaged and so you go to a court. Senator Grafstein is right; it is a neutral term.
Senator Bryden: I agree with the consensus. I will support the bill. However, as some of you know, my philosophy is a little different from Senator Beaudoin as to who should be making the laws and who should be interpreting and applying the laws in a democracy.
If you follow your logic to its full extent, then we do not need any of these definitions. We would just say that if your human condition disadvantages you, then the tribunal to which you appeal will determine if you are correct.
I do not want to prolong this, but you can take this to the point where you just say that if someone comes before you and you feel bad for them under whatever precedents, you can give them relief.
There is a point at which parliaments have to use some circumscription of the latitude of the judiciary to create new laws. Having said that, I agree with the consensus and I will certainly will support the bill.
The Acting Chairman: Shall the title carry?
Hon. Senators: Agreed.
The Acting Chairman: Carried. Shall the bill as amended carry?
Senator Lewis: We had a suggestion from the officials of the Department of Justice that this bill should not proceed at this time until their final study had been completed.
Senator Cohen: I remember that statement. I remember then asking if passing the bill through this committee would add some teeth to an earlier resolution of reviewing. She said that anything that comes from the Senate will be more effective. I wanted to respond to that because that line really stayed with me through that whole address.
Senator Lewis: I wanted to raise it because it was before us.
Mr. Acting Chairman: Shall the bill carry as amended?
Hon. Senators: Agreed.
The Acting Chairman: Carried. Shall I report the bill to the Senate as amended?
Hon. Senators: Agreed.
Senator Cohen: I thank this committee because I believe that, in passing this bill, we fulfilled our role as senators in examining and revisiting our legislation, in investigating national issues and representing minority interests. That is very important. Honourable senators, I want you to remember that even though we cannot direct the wind, we can adjust our sails. That is what we have done today.
The committee adjourned.