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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue No. 28 - Evidence - May 4, 2017

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OTTAWA, Thursday, May 4, 2017

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, met this day at 10:33 a.m. to give consideration to the bill.

Senator Bob Runciman (Chair) in the chair.

[English]

The Chair: Good morning and welcome, colleagues, minister, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.

We have a very crowded room today, as you can all see. Anyone who is standing, perhaps, or who is joining us, we do have an overflow room off the side where you can view and listen to the proceedings. You may find it little more comfortable over there, if you wish to move in that direction.

Today, we begin our consideration of Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code.

And with us today, to start things off, is the Honourable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada.

Joining her at the table are, from the Department of Justice, William Pentney, Deputy Minister of Justice and Deputy Attorney General of Canada; and Laurie Wright, Assistant Deputy Minister, Public Law and Legislative Services Sector.

Thank you all for being with us today. Minister, the floor is yours.

Hon. Jody Wilson-Raybould, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you, senator, and good morning to all the honourable senators and everybody who is here. I am thankful to be given the opportunity to present to this committee on Bill C-16. In my remarks today, I will outline the broad objectives of the bill, explain the specific amendments that are being proposed within it and respond to some questions that have been raised about the bill.

At the close of my remarks, of course, I would be very pleased to take questions from the honourable senators present.

Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, is an incredibly important step in protecting the dignity, security and freedom of trans- and gender-diverse Canadians. These individuals, like all of us, deserve equal protection under the law so that they can make for themselves the lives that they are able and wish to have.

The premise of Bill C-16 is that all Canadians should be free to be themselves, without fear of discrimination, hate propaganda or hate crime. Sadly, this is not yet the experience of many trans people in this country. As you are all aware, trans, gender-diverse and two-spirited persons face elevated levels of violence and risk of violence, including physical and sexual assault and verbal, physical and sexual harassment. They also face significant obstacles in obtaining and advancing in employment, and not because of lack of qualifications.

Yet our human rights protection and criminal law do not explicitly protect this vulnerable group. With this bill, Parliament has the opportunity to affirm, in clear language, that trans and gender-diverse persons are entitled to equal protection from discrimination, hate propaganda and hate crime; and that all Canadians are entitled to manifest their gender identity and gender expression without fear for their safety.

Canada is strengthened by its diversity, and this diversity succeeds best when our laws and institutions promote social inclusion and participation for all. This is fundamentally what this bill is about and is supposed to do.

To this end, Bill C-16 proposes to make three amendments. First, it would amend the Canadian Human Rights Act to add two prohibited grounds of discrimination: gender identity and gender expression. As a result of this amendment, it would be a prohibited discriminatory practice to disadvantage people because of their gender identity or expression in matters of employment and the provision of goods, services, facilities and accommodation customarily available to the public.

While the Canadian Human Rights Act only applies within a federal jurisdiction, every province and territory has now passed or introduced similar amendments to their provincial human rights legislation to protect trans- and gender-diverse persons from discrimination. This bill would be the final piece of the puzzle in ensuring full protection for trans and gender-diverse persons across the country.

Second, this bill also proposes to amend the Criminal Code. It would expand the list of identifiable groups that are protected from hate propaganda by adding gender identity or expression to the list.

And finally, it would clarify that hatred on the basis of gender identity or expression should be considered as an aggravating factor in sentencing for a criminal offence.

This is not the first time that the Senate is studying this issue. In the forty-first Parliament, this committee considered Bill C-279, a very similar piece of legislation. As mentioned, all provinces and territories have either passed or introduced similar amendments to their own human rights statutes and in light of this, I believe these amendments are long overdue.

Nevertheless, it is evident from debate in the Senate that there are questions about why we need to enact these amendments and what they will do. I would like to address some of those questions now.

Some have wondered if these amendments are necessary. It was pointed out that trans persons may already bring a discrimination complaint using the ground of sex under the Canadian Human Rights Act, and that the hate crime sentencing provisions of the Criminal Code are open-ended and would already include gender identity and expression. Allow me to offer three responses to the argument that the bill is redundant.

First, all Canadians should be able to turn to our fundamental laws, like the Canadian Human Rights Act and the Criminal Code, and see their rights and obligations spelled out clearly and explicitly. Promoting access to justice means working on an ongoing basis to make our laws clear and as easy as possible for everyone to understand.

While tribunals and courts have dealt with some complaints from trans and gender-diverse individuals using the ground of sex, we should not expect ordinary Canadians to infer that gender identity and expression are covered by this term. Trans and gender-diverse people who feel they have been discriminated against should not have to become experts in legal interpretation and human rights jurisprudence in order to advocate for their basic rights.

Furthermore, employers and service providers should know explicitly what legal duties they have toward their employees and customers. Adding these grounds to the Canadian Human Rights Act as well as the Criminal Code will ensure clarity and consistency.

Second, Canadians expect parliamentarians to speak on their behalf to the social issues of the day and to affirm their basic values and fundamental rights. With this bill, Parliament has the opportunity to affirm that all Canadians should feel free to be themselves. Parliament can stand with some of the most vulnerable individuals in this country, trans and gender-diverse persons and affirm their equal status within Canada. This is more than a symbolic gesture. This is about embedding new language of respect and inclusion into two important laws that affect how we conduct ourselves on a daily basis.

Finally, this legislation will also fill an important gap in the criminal law. The Criminal Code hate propaganda offences currently extend to the ground of sex but there is no mention of gender identity and expression. As you know, gender identity is not the same characteristic as sex. Because criminal prohibitions are interpreted narrowly, it is important for Parliament to legislate explicitly on this point in order to ensure that the offence protects against hate propaganda which targets trans and gender-diverse individuals because of their gender identity gender or expression.

Next, some senators have also expressed their concerns that this legislation has implications on freedom of expression and that it will compel certain kinds of speech such as the use of gender-neutral pronouns instead of "he'' or "she.'' To answer these questions, it is essential to distinguish between the amendments to the hate propaganda provisions in the Criminal Code and the amendments to the Canadian Human Rights Act.

The Criminal Code's hate propaganda provisions target extreme and dangerous speech that advocates genocide against an identifiable group, wilfully promotes hatred against an identifiable group or incites hatred against an identifiable group in a public place likely to cause a breach of the peace. Currently, the term "identifiable group'' means a section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation or mental and physical disability.

The Supreme Court of Canada ruled in the 1990 case R. v. Keegstra that the offence of wilfully promoting hatred against an identifiable group in subsection 319.2 of the Criminal Code was a demonstrably justifiable limit on the freedom of expression. The court ruled that "hatred'' meant only the most intense form of dislike and to quote from the judgment:

. . . the term "hatred'' connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation.

This is far from the expression of religious faith, dissenting views or even opinions that some may find offensive.

With regard to the language of "wilfully promotes'' hatred, the Supreme Court in the same case looked at the term "wilfully'' and deemed that it means "intentionally,'' not "recklessly.'' Moreover, it held that the word "promotes'' means active support or instigation, not simple encouragement.

Finally, for the offence of wilfully promoting hatred, there are four available defences. Among these is the defence of making statements that were relevant to any subject of public interest, a discussion of which was for the public benefit, if on reasonable grounds the person making the statements believed them to be true.

These hate propaganda offences do impose a limit on expression, but it is a very narrow limit. And this limit is demonstrably justified in a free and democratic society given the important objectives being pursued; namely, to target extreme and dangerous speech that advocates genocide or promotes hatred against certain vulnerable groups.

This offence currently applies to a number of identifiable groups in Canadian society. All this bill would do is add "gender identity'' and "gender expression'' to this list.

Let us turn now to consider any impacts the amendments to the Canadian Human Rights Act might have on freedom of expression.

The Canadian Human Rights Act is concerned with protecting for all persons equal access to goods, services and employment in the federally regulated sector. It is not concerned with regulating the expression of one's beliefs generally. And the Canadian Human Rights Act does not legislate particular modes of speech. To be clear, these amendments will not create any specific rules about the use of gendered pronouns.

What the Canadian Human Rights Act does do is prohibit discriminatory practices, including harassment of employees and customers within the context of employment and other businesses within federal jurisdiction. Harassment involves speech or conduct that is persistent and serious enough to create a hostile or poisoned environment. If a reasonable person in the same circumstances would perceive the speech to be injurious, humiliating or an insult to their dignity, then this could be considered harassment.

These protections are already available on the basis of sex, race, sexual orientation, ethnic origin and several other grounds. The amendments proposed in Bill C-16 would add explicit protection for trans and gender-diverse individuals.

I would like to turn to the objection that this legislation may introduce many gender identities. I have heard that this bill would introduce 70-plus genders. This is not the case, and I'm grateful for the chance to set the record straight. Bill C-16 does not define or legislate a particular list or number of gender identities. The bill is based on the recognition that not all Canadians fit neatly into one or two boxes, male or female, man or woman.

I have also heard questions raised about why gender identity and expression are not defined in the bill and whether their meaning is too subjective. Gender identity and expression are now found in most — and soon to be all, as I said — provincial human rights codes. Commissions, tribunals and courts have elaborated upon the meaning of such grounds in hundreds of cases in a reasonable way with reference to the purpose of the law. Decision makers clarify these grounds and, indeed, all grounds through the application of real-life examples allowing the law to respond to individual scenarios in line with its purpose.

For comparison, I note that the ground of religion is also undefined and one's religious beliefs are subjectively determined. However, as the Supreme Court of Canada has stated, protection depends on the religious belief being sincere — a requirement that tribunals and courts are familiar with assessing on an individual, case-by-case basis. The same approach could be taken with respect to the grounds of gender identity and expression.

I encourage this committee to focus on the real issue at hand. This bill is about ensuring equal opportunity for trans and gender-diverse persons in employment and access to goods and services. It is about increasing their sense of security and freedom from the most extreme forms of hate speech. It is about denouncing what we know are still all too frequent acts of violence and other crimes that target persons out of bias, prejudice or hatred. Surely we can all agree that these are pressing objectives and in urgent need of being addressed.

Bill C-16 would make the amendments needed to pursue these incredibly important objectives.

Finally, I want to acknowledge the courage and the leadership of the trans community, the decades of effort to achieve equality.

Many are in the room today and are watching online, and I know some of you will testify before this committee. Your dedication, your resilience and your tireless advocacy for equal rights inspire me. This is who we are as a country, a country that embraces diversity, and I very much look forward to moving this substantive piece of legislation through as quickly as possible. Thank you for listening. I'm happy to take your questions.

The Chair: Thank you, minister. We'll move to questions, beginning with the committee's deputy chair, Senator Baker.

Senator Baker: Thank you, minister. I should congratulate you, firstly, on the excellent job you are doing in attacking some of the important issues that you are addressing, issues that should have perhaps been addressed many years ago.

I'll put my question and supplementary to you all at once because the chair may cut me off when we get to the supplementary. He is a very judicious chair.

First of all, coming from Newfoundland and Labrador, our Human Rights Act 2010 says "gender identity, gender expression,'' section 9(1). The Nova Scotia Human Rights Act 1989 says, "gender identity, gender expression.'' Alberta, section 4, "gender, gender identity, gender expression.'' Ontario, 1990, "gender identity, gender expression.'' B.C., 1996, "gender identity or expression.'' Northwest Territories, 2002, "gender identity.'' Quebec Charter, "gender identity or expression.'' Finally, P.E.I., "gender identity,'' 1998; Saskatchewan, 1979, prohibited ground gender identity. Manitoba Human Rights Code, 1987, "gender identity.''

My question to you is this, minister: Why has it taken so long for the federal government? Perhaps this is an unfair question for you, perhaps unwise to be adversely critical of previous administrations. So my supplementary question I'll put — it's very short — to your deputy minister, legal authority on these issues. Mr. Pentney, we've heard submissions concerning the use of washrooms or changerooms. Could you explain to this committee whether or not that comes under provincial jurisdiction, provincial law, which I've just quoted going back to 1987, and even in federal buildings? Could you comment on the jurisdictional question concerning those matters that have been raised at this committee?

Ms. Wilson-Raybould: Senator, thank you for the history of the amendments to human rights legislation. Perhaps I can answer the first question. I'm happy to turn it over to the deputy to answer the jurisdictional question. Why has it taken so long? I am fully intent on focusing on the job that I have, our government has, and we, as parliamentarians, have at hand. If not now, when, and if not us, who?

I very much hope that we will be able to move this important piece of legislation through, as I know the legislatures of New Brunswick and Yukon are doing at this time as well. It is imperative for us all, I would respectfully say, that we ensure that we provide protections against discrimination for individuals on the basis of their gender identity and gender expression, to complete the circle of history that you have reflected on. I am happy to turn it over to the deputy to talk about the jurisdictional question.

William Pentney, Deputy Minister of Justice and Deputy Attorney General of Canada: Thank you, senator. The history of human rights protection in Canada has been a history of evolution. Over time, protections have been added, and it has taken some time for the provinces and the federal government. So the first modern human rights law was adopted in Ontario in 1960, 1961, in recognition that criminal prohibitions hadn't worked, that the state needed to stand with victims and that a commission, using an administrative process with a combination of enforcement and educational tools, could have an impact. The Canadian Human Rights Act was not adopted to cement that into federal jurisdiction until 1976. In between, different provinces adopted different laws. It is undeniable, looking at that history, that the adoption of the Canadian Human Rights Act has made a real difference to the lives of Canadians who operate within federal jurisdiction — federal employees, people who use banks, people who have access to airlines. The adoption of the act, coming late as it might have been, has had a real impact in the intervening period, and I think that history is worth remembering.

Senator Baker: So how about my question?

Mr. Pentney: In respect of jurisdiction, very simply, senator, as you know, property and civil rights are generally within the exclusive jurisdiction of the provinces. So rules about accessibility, rules about washrooms, generally speaking, are governed by provincial legislation. Access to federal buildings is a more complicated endeavour, and the Canadian Human Rights Act provides that services ought to be equally accessible. There would be areas within federal jurisdiction. Indeed, I would note that the washroom downstairs would not be regulated, for example. The washrooms in this building would not be regulated by provincial jurisdiction, but the vast majority of those situations would be subject to provincial jurisdiction.

Senator Plett: Thank you, minister, for being here. I want to say at the outset that I think the goal for all of us is exactly the same thing. It's just a matter of some of us believing that there are different ways of getting to that goal, but I certainly support the intent that you say this bill is supposed to have.

I do want to correct two things, minister, or one maybe and then just one comment, very quickly. There are significant differences between Bill C-16 and C-279. They are not the same bill at all.

Secondly, gender expression is not an identifiable group. Gender identity maybe; gender expression is not. You can comment on that at the end if you wish. When we add gender identity and gender expression to the Canadian Human Rights Act, we are leaving definitions, parameters and guidelines up to the Canadian Human Rights Commission to interpret. I'm sure you are aware that the Justice Canada website, in the Q and A section of the page on Bill C-16 states: "Definitions of the terms "gender identity'' and "gender expression'' have already been given by the Ontario Human Rights Commission, for example. The Commission has provided helpful discussion and examples that can offer good practical guidance. The Canadian Human Rights Commission will provide similar guidance on the meaning of these terms in the Canadian Human Rights Act.''

Based on this statement of intent from the department, and the fact that federal human rights regimes typically mirror that found at the provincial level, it is reasonable to believe that the federal policy and guidelines will be similar to that found in Ontario. The OHRC has produced a policy on gender identity and gender expression and what constitutes harassment and discrimination, including refusing to refer to a person by their self-identified name and proper personal pronoun.

That's a quote. Now, minister, do you agree with that policy?

I'll just finish the question, chair.

If an individual, an intellectual dissenter perhaps, does not subscribe to the theory of an infinite gender spectrum and if that person does not believe that there are more than two genders — and this is simply talking about being more than two genders, not a person wanting to be the other gender — for personal, scientific or faith-based reasons, do you believe they should have to refer to a person by a personal pronoun, and should failure to do so constitute discrimination?

Ms. Wilson-Raybould: Thank you, Senator Plett for those questions. I'll try to tackle them from the last to the first. As I stated in my remarks, one can't compel somebody to refer to somebody by way of a pronoun or otherwise. There is nothing within Bill C-16 that would compel somebody to have to call somebody by the pronoun "he'' or "she'' or otherwise.

In terms of definitions, thank you for reading that excerpt. We specifically haven't defined gender identity or expression within Bill C-16. Having said that, as was noted in that quote, the Canadian Human Rights Commission, as well as other commissions across the country, have done substantive work in terms of engaging with the trans community, in providing documents that further go into putting parameters around what a definition of gender identity would be.

There are dozens, if not hundreds, of case law examples that speak to and further define the gender identity or expression. Certainly with respect to someone's deeply held personal beliefs about their identity, this must be, in the case where discrimination is alleged, dealt with on a case-by-case basis.

In terms of gender identity and gender expression, as I said in my comments, "gender identity'' is about how someone seeks to identify themselves by their personal beliefs. That may be male or female, it may be both; it may be neither. It recognizes the gender spectrum.

In terms of "gender expression'' — and this was a debate that happened over the years — it is equally important to be contained within Bill C-16 as "gender expression'' is the manifestation or the outward expression of a individual, what that individual chooses to wear in a workplace. I firmly believe it is incumbent upon us, as lawmakers, to ensure that we provide for protections of individuals in terms of their gender expression, so as to protect those individuals in a workplace or any other federally regulated place and ensure they can express themselves in a way that's appropriate for them.

The Chair: I would remind you that we have a large number of senators around the table and limited time, so try to keep the questions and responses as concise as possible.

Senator Jaffer: Thank you, witnesses, for being here. I applaud your leadership on this issue and on other issues. Obviously whenever you come to this committee, I am very proud because you are from B.C., so welcome.

I want to say to the young people in this room especially, thank you for your leadership, your strength and courage in being here. I know you are not just speaking for yourselves; you are speaking for other people. So thanks for being here.

Minister, my question follows what Senator Plett was saying, I think. You covered it a bit in your remarks. The Supreme Court of Canada has upheld the prohibition against willful promotion of hatred as a justifiable limitation of freedom of expression.

A member of Parliament said:

I am concerned that this bill would cause fear for many Canadians, fear that they would not be able to even discuss public policy issues, such as this one, on which they may disagree with the government-imposed agenda.

Minister, can you explain to this committee how this bill will protect trans people by protecting freedom of speech for Canadians?

Ms. Wilson-Raybould: Thank you for the question and the acknowledgment of the young people in the room. I would underscore and recognize the leadership young people have taken.

In terms of this piece of legislation, the purpose is to ensure that individuals' gender identity and gender expression is protected.

In terms of concerns — and I touched on it in my remarks around limiting the freedom of expression — I will say this: The Criminal Code hate speech offences prohibit advocating genocide or other extreme communications of hatred, and as I said with reference to Keegstra from the Supreme Court of Canada, hatred can be defined as covering only the most intense form of dislike. Expressions in good faith of a religious opinion, a dissenting view or even an opinion that in some way may be offensive, are not prohibited. It's our government's position that with respect to gender identity and gender expression, that protection therein would be justified, ensuring that we provide those protections for individuals to ensure that they can express and be comfortable with who they are.

The deputy wants to add something.

Mr. Pentney: Quickly, I would urge the committee to look at what is actually being said and that might fall within the rubric of expressions of hate. Senator Dupuis and I served on the Canadian Human Rights Commission and saw some of this up close. It is important to look at the words that might conceivably be caught with the criminal prohibition. They are calls to violence. We know that violence is actually happening, that words have meaning.

I would encourage you, in looking at the freedom of expression argument, to also look at the harder edge of this, which is some of what is being said on the Internet, some of which is otherwise being communicated because it is ugly. If it was ever to fall within "willfully and intentionally promoting hatred'' and subject to a prosecution with the Attorney General's consent, it would be on the extreme end of incitement to violence. I would remind you and encourage the Senate to explore the harder edge of this.

Senator Jaffer: Can you provide to the clerk a sample of what you are saying?

Mr. Pentney: We can draw from the existing examples so you can see, in previous cases, the kinds of language that has been found within the prohibition.

Senator Frum: Minister, when Egale, Canada's national LGBTQ human rights organization weighed in on Bill C- 279 in its origin form, the predecessor of Bill C-16, their legal team asserted that gender expression is not only unnecessary to include, but that it was constitutionally suspect.

Here is what they said:

There is a risk that including "gender expression'' in the amendments to the Criminal Code would lead to a constitutional challenge and significant risk that "gender expression'' could be struck down for being unconstitutionally vague or an unreasonable limit on freedom of expression for the accused, particularly in the context of the hate propaganda provision. In fact, the hate propaganda provision of the Criminal Code has survived Charter challenges because it is not overly vague and was found to be a reasonable limit on freedom of expression in its current form. This argument would be much more difficult to successfully make with the inclusion of "gender expression,'' which is open to many interpretations.

Can you comment?

Ms. Wilson-Raybould: I'm happy to have the deputy supplement my statements around gender expression. Thank you for reading from the Egale report.

We need to be very mindful so as not to trivialize the rights we are seeking to protect. This goes back to my previous comments: Gender expression has been advocated for among the trans community to ensure it is included within this legislation to protect individuals in their workplaces, and other places, so they can express themselves how they deem appropriate.

In terms of somebody's gender expression — and this has to be considered on a case-by-case basis in terms of alleged discrimination — the courts have looked to sincere belief, and the deputy can comment on this further.

We need to ensure that we provide those protections through the provinces and territories, their legislation and, hopefully, when ours is passed, that will be further expanded upon in terms of the courts' decisions.

Mr. Pentney: We would respectfully disagree with Egale's position because the criminal prohibition focuses on the intention of the speaker. To the extent that the intention of the speaker is that violence or hatred should be subjected to people because they dress differently, wear earrings or other forms of what would be seen by some to be non- traditional gender expression, and the expression is so violent and extreme that it might fall within the prohibition, we would expect the court to treat that seriously, as they should, to interpret it narrowly and to put the Crown to a high standard of proof, all of which is appropriate.

This wouldn't happen in the air; it would have been in the context of a real case. One would think the police would not charge if there was doubt as to whether or not it was extreme or sufficiently extreme, or whether it was sufficiently directed to the subset of the community that we think it is likely to be directed to, or that the Crown wouldn't prosecute or the judge wouldn't convict.

Understand again, "in the air,'' in an academic and general way perhaps, debate about whether the language is precise enough will be in the application of the language, and we believe that the constitutional decisions will be made. If the case is clear enough that there was a call to violence — let's go out to a park and beat up someone — and as long as the language is clear enough, we think it would withstand constitutional scrutiny. I would note there are a variety of religious expressions. People choose to live their religion and express it publicly in very different ways, yet we have recognized that expressions of hatred against particular religious groups, notwithstanding diversity of ways people live with their religion, has been found to be constitutional. I would think the same thing would happen here. Again, in an appropriate case.

Senator Omidvar: Thank you, minister, for being here. I would like you to address a common critique of this bill that more rights for this group will therefore mean fewer rights for another. I don't happen to agree with that, but I want you to address the critique I have heard, for instance, from a few women's groups who say this will infringe on the rights of women. Again, I don't agree with that, but I would like you to address the critique from your point of view and to tell us, within provincial jurisdictions, is there any evidence of adverse effects on other communities?

Ms. Wilson-Raybould: Thank you for the question, senator. The purpose of Bill C-16 is to ensure that individuals can be free to be themselves without fear of discrimination. Adding gender identity and gender expression as a prohibited ground to the Canadian Human Rights Act or as an identifiable group within the Criminal Code adds to the already enumerated lists that ensure protection on the basis of a number of different categories. This is to add to that and ensure that individuals are free to express their gender identity and their gender expression without fear of reprisal or discrimination.

I would further say that there is no hierarchy of rights. We need to ensure that we do everything possible, whether it's discrimination on the basis of being a woman or discrimination on the basis of identifying in a different way, to provide those equal protections. That is the purpose of this legislation. It's the purpose of the amendments that have been made over the years with respect to the human rights acts federally and in the provinces and territories. I would submit that it does not take away from protections for women; it adds to protections to ensure that we are filling the gaps that exist in the Human Rights Act as well as the Criminal Code.

[Translation]

Senator Dagenais: Thank you, Madam Minister, for your presentation and for your presence here today. I see that the bill should come into effect immediately after royal assent. I think this means that this will happen in the near future, and that you are ready to enforce the bill.

I would like to discuss the measures that will have to be put in place in order to comply with the provisions of the bill. For instance, could you speak to us about Passport Canada? What will happen the day after the bill is passed? What will be written in the passport, and what type of verification will have to be done before a passport is issued? That is one example among others.

[English]

Ms. Wilson-Raybould: Thank you for the question, senator. Without question, upon Royal Assent of Bill C-16, we have work to do in terms of Passport Canada and within individual ministries to recognize gender identity and gender expression.

As I understand it, and in preparing for today, the Prime Minister and our government, working with Passport Canada, is looking at a third gender designation. That work is continuing. Likewise, work is continuing within other departments to see how we can update policies and the application of policies. In doing so, we are committed to ensuring that we engage with the trans community to get their feedback, and operationalizing Bill C-16 is something that will unfold necessarily so.

Again, we do have work to do to recognize that simply ticking a box of "male'' or "female'' doesn't accord with the intent of what's in Bill C-16. We are continuing with that work.

Senator Joyal: I would like to come back to a statement made by the Honourable Richard Wagner, Supreme Court Justice in Canada. He made this statement on March 9, 2017, at the University of Ottawa symposium on the impact of 35 years of the Charter adjudication.

It is at page 7 of Justice Wagner's statement. It reads:

When the court eventually faces a question touching on transgender identity, these two propositions will provide essential frames of reference: that identity is not fixed, but changing, and that identity is not innate, but contextual.

When I read that statement made by Justice Wagner two months ago, following on Senator Frum's question, I tried to make the analysis of the two concepts of gender identity and gender expression in relation to those two criteria. Do you find that in gender expression you will essentially have the aspect of moving identity, the fact that the identity is changing, and then that identity has to be defind in a contextual reality?

Could you give us your interpretation of how Justice Wagner's two criteria would be found in the two concepts of gender identity and gender expression? It seems that the Supreme Court, as much as Justice Wagner said "when the court'' — he did not say "when I will face'' — how much weight can we give those two criteria in the definitions of gender identity or gender expression?

Ms. Wilson-Raybould: Thank you for the question, senator. I'm happy to make some comments and then my deputy can follow up on further comments with respect to Justice Wagner's comments.

In terms of the changing views of gender identity or the possibility, the purpose of this bill is to ensure that individuals can identify themselves from the deeply held personal views they have in terms of their gender identity and then protection for the manifestation of their views, however that might express itself.

The belief that over time perspectives or the identity may change, the court will look at the sincerity of those beliefs or that identity and that expression and take that into consideration in terms of what they are going to be and have discussions about it.

We want to ensure — and I think it is a positive reality of the ongoing conversation of elevating and highlighting the reality that trans individuals in this country face — that we are having this discussion, it is okay to express yourself in a different way, and that providing the forum or the environment to continue these discussions is a positive thing. So individuals who may or may not have felt compelled or comfortable with articulating how they identify themselves may feel more comfortable to do so now. Do you have anything to add?

Mr. Pentney: Thank you for the question, senator. Justice Wagner's speech was obviously an exploration of the meaning of identity in a diverse society. He was obviously not speaking to a decision. Whatever he was signalling about where the future court might go in a future hypothetical case on particular circumstances, having heard evidence and argument from all sides, should be taken as a personal expression of a general concept.

Core to the evolution of human rights law in Canada, our understanding of equality has been an evolution from things that are seen as innate to other things that were core to a person's identity, core to the vision of themselves and should be changed not by virtue of employer or service provider or state coercion but by virtue of their choice.

We said a long time ago as a society that employers shouldn't fire women because they choose to get married. That's what was happening. Not men, women. They said they shouldn't fire women because they "choose to become pregnant,'' that they shouldn't fire or refuse to hire someone because they've chosen to express their religion or not to express their religion.

To the extent that those things all can change in one's life as one matures and evolves, what we have said is that we as a society believe those are protected spaces. The choice would be the individual's, not the state's, not the employer's, not the service provider's. We should be neutral to that and let people live their lives as they choose and wish to be. That's what this law would say if it was adopted by Parliament.

The Chair: I'll have to jump in there. We have five senators on the list and about 10 minutes remaining. I know it is a challenge, but I suspect some will not get a question in.

Senator Batters: Minister, in 18 months, this is the first time you have been before the committee on a government bill on your own. You appeared with the health minister on Bill C-14. I again want to echo what Senator Plett said earlier. This particular bill is not the same as the private member's bill that we dealt with in the previous government. This Liberal government bill does not only include gender identity as a protected ground but also gender expression. Many Canadians watching this today will be surprised to learn that.

I want to go back to the Egale Canada memo provided on the previous bill. They wrote:

It is unlikely that the omission of gender expression within the Criminal Code hate crime sentencing provisions will have any impact given that the courts are already entitled to consider any other similar factor in sentencing which could include gender expression.

I am wondering why you would include gender expression in this particular bill when there is no consensus on a definition of gender expression.

Minister, what is your definition of gender expression and why did you include this? Without a definition, the term remains vague, as we heard from you today, and particularly in those sections of the code related to hate speech.

Would you also please table today a Charter assessment that demonstrates that using gender expression has only, as your assessment shows, a low risk of having this bill being declared unconstitutional? Given that potential risk, why would you include an expression that is so very vague in a Criminal Code amendment?

Ms. Wilson-Raybould: Thank you, senator, for the questions. I am pleased that, as I do with all justice bills, when I table the bill, I also table a Charter statement. I am happy to have my officials provide that Charter statement with respect to Bill C-16 to everyone on this committee.

In terms of definitions, for the most part, in all of the human rights legislation across the country there aren't a lot of definitions contained therein. There are some prohibited grounds that are identified, for example, around disability, but we sought not to define identity and expression. The same is true with respect to provinces and territories. Gender identity and gender expression are now explicitly recognized in Alberta, British Columbia, Newfoundland and Labrador, Nova Scotia, Nunavut, Ontario, Prince Edward Island, and Quebec.

Again, in terms of gender identity and to your question about gender expression, we want to ensure that we fill the gaps that exist in terms of protections for individuals that may identify themselves beyond normal, what is considered normal, that we provide a spectrum for individuals to identify themselves and to ensure that in an environment, whether it's an employment environment or otherwise, they are not discriminated against based on their gender expression.

I would not seek to put a definition around gender identity or gender expression. That work, as I said earlier, is an ongoing process. The Canadian Human Rights Commission has done a lot of work in terms of putting the parameters or the discussion that has occurred on a case-by-case basis in terms of identity and expression. Likewise, the courts in many cases have further helped to define the space. I know that will continue as, unfortunately, cases are presented around discrimination.

Senator Batters: Of course much of that has occurred without this bill being in place. Thank you.

[Translation]

Senator Dupuis: Thank you, Madam Minister, for having agreed to meet with us, and for confirming that your government intends to protect those who have testified before various committees over the past 20 years, in order to clearly express that discrimination against them was based on who they are. This includes a committee I worked on at the Canadian Human Rights Commission in 1999; it was a committee made up of young people, adults, and some older people.

I think it is extremely important that we all understand that discrimination. I am addressing the children who are here, and the francophone transgender children who came to tell the Canadian Human Rights Commission about the real problems they experienced in school, in order to have their student number in the Department of Education files coincide with the services they received in school.

I would like to know if you agree that there was an extremely important paradigm shift when we decided to create the Canadian Human Rights Commission to protect people against discrimination based on who they are.

[English]

Ms. Wilson-Raybould: The short answer is I completely agree.

With respect to Bill C-16, as with respect to additions to prohibited grounds and identifiable groups, we as a society change and evolve over time. As the Minister of Justice and the Attorney General of Canada, and I believe as parliamentarians, it is incumbent upon us to ensure that we live in a country that embraces diversity. We are rich because of our diversity and we need to ensure, in every way possible, that people have the ability to live and express who they are and that they will be protected in doing so, and by virtue of that protection, individuals will be able to achieve, if they work hard, whatever it is they want.

I'm extremely proud to have been able to have tabled Bill C-16. I will be extremely happy when it is passed.

The Chair: Minister, we would like to get the remaining questions in.

Ms. Wilson-Raybould: Thank you, senator.

Senator Pate: Thank you, minister and your officials, for joining us today, and thank you for your leadership in so many areas and the indication of where we are headed with some other things, and you have my appreciation for this work you are doing in terms of ensuring human rights protection for all Canadians.

My question is more strategic. As you know, we have been interested in discussing other criminal justice reforms in areas where sentencing and exercise of judicial discretion will be examined. I am curious as to why you decided to add aggravating factors into this bill instead of waiting for the more comprehensive criminal law reform process to unfold, as you have indicated you are in a number of other areas?

Ms. Wilson-Raybould: I look forward to engaging with this table on the broader criminal justice reform that we are undertaking, including making substantive revisions to the Criminal Code, some of which is already in process.

Adding gender identity and gender expression as an aggravating factor in sentencing goes part and parcel with adding it to prohibitive grounds and identifiable grounds within the Criminal Code. This has been advocated for by the trans community. This has been substantially advocated for by other parliamentarians who have taken leadership roles in this regard. It presents and completes, for consistency in the Criminal Code, the reality that we are adding gender identity and gender expression not only to it being an identifiable group but that in sentencing it is certainly an aggravating factor that should be considered by a judge.

Senator Sinclair: Thank you, minister, for being here. Since we don't have any difficulty understanding what freedom of expression means, I commend you for not trying to put a definition on the word "expression'' in this bill because we shouldn't have to define a common-sense word.

But I do want to ask you this: In the recent past, many of the provinces that have transgender and gender expression protection in their legislation have allowed people on their drivers' licences to mark an X in the gender box, if I can call it that, on the drivers' licences. Ontario, for example, just last month, I think, did that.

I wonder if you have undertaken an area or will be undertaking an area of education of people within the civil service or public service and the general public to communicate that kind of option that might become available.

Ms. Wilson-Raybould: Thank you for the comments and the question, senator.

As I indicated earlier, the Prime Minister is very mindful of the need for perhaps a third box or an ability to mark something other than "male'' or "female.'' This work has been undertaken at Passport Canada. Individual ministers, and within their departments, are recognizing as this bill has been introduced that there is work that needs to continue. Broader discretion and education around the purpose of gender identity and gender expression, Bill C-16, is very important. We will ensure that we continue to engage with the trans community on how we can most appropriately give expression when this bill receives Royal Assent, and that we elevate and maintain the discussion around human rights in the general Canadian public. It's important that we have that education and understanding to ensure that we eliminate discrimination as much as possible and understand the reality of the challenges that individuals are living with.

The Chair: Thank you, minister, deputy, Ms. Wright, for your appearance and testimony.

Joining us for our second hour are Brenda Cossman, Director of the Bonham Centre for Sexual Diversity Studies and Professor of Law at the University of Toronto; Kimberley Manning, Principal at Simone de Beauvoir Institute and Associate Professor in Political Science at Concordia University; and Melissa Potvin, Parent Advocate and Community Leader.

Thank you all for joining us. I believe Ms. Manning will lead off. The floor is yours.

[Translation]

Kimberley Manning, Principal, Simone De Beauvoir Institute and Associate Professor, Political Science, Concordia University, as an individual: I am very pleased to be here today to speak about the reality of young transgenders.

[English]

I have three children, the eldest of whom is transgender. I am speaking to you today as a parent, scholar and advocate.

Florence was 4 years old when we realized that her gender expression was not a phase, as some people kept telling us but, rather, something more central to her identity. Fortunately for us, we had the advantage of tremendous resources at our disposal: good incomes that allowed us to move to an expensive neighbourhood so that my daughter could have access to an alternative school setting; academic skills and connections that could be mobilized to generate new research and forms of support; a strongly supportive faith community — Montreal's Christ Church Cathedral — and the privilege of Whiteness.

Indeed, although we experienced some very real challenges, these challenges cannot compare to those struggling at the margins of poverty and/or those facing the combined oppressions of transphobia and racism.

Florence is just one of hundreds of Canadian children who are now living openly in accordance with their felt sense of gender. Unlike Florence, however, many transgender young people have grave difficulty accessing food, education, health care and shelter.

Prior to coming to terms with Florence's gender nonconformity, I had never before considered the possibility that a child could be transgender, and this is despite the fact that I taught gender and politics at the graduate level at Concordia University. I thus understand why, for some, the idea of transgender and gender non-conforming children may seem perplexing.

Transgender children are children whose gender identity does not align with the gender that they were assigned at birth. Although many transgender children know themselves to be a girl or boy, some are more fluid in their presentation and understanding of self.

Research involving genetics, neuroanatomy and studies of intersex diversity provide solid evidence that the biological basis of gender identity is strong. It is part of our very personal, profound and intimate knowledge of ourselves.

What we know now is that poor parenting is not a determining factor of transgender identity. Overall, research suggests that parenting connectedness is key for the well-being of trans youth.

These are findings the Canadian Association of Social Workers and the Canadian Psychological Association have now incorporated into their guidelines for practitioners.

I would like to argue before you today that the Senate should pass Bill C-16 unamended for three major reasons: affirmation, access and autonomy.

As a parent I want my child to be seen as who she fully is. I want her to have the dignity that should be afforded to all people who reside in Canada. While I recognize that passing Bill C-16 does not guarantee that my child will be respected, I do know that law has a powerful role to play in changing public consciousness.

As senators, you have the opportunity to bend the arc of history. At this moment of rising anti-Semitism, Islamophobia, racism, sexism and transphobia, you can offer not just my kid but all kids in Canada a chance to expand their understanding of and appreciation for the diversity of human experience.

I want Canadian children, regardless of gender identity, to have full and safe access to all public institutions and public space. Bill C-16, if passed as is, can help ensure that gender diverse children and youth have affirming access to public space, including bathrooms, social services and shelters. Not all trans children and youth have the support of their caregivers. In fact the majority do not. Despite this most shelters are unprepared for transgender youth and continue to discriminate against them. Trans youth, especially young trans women of colour, are among the most discriminated against groups of people in the shelter system. Trans people continually experience transphobic violence and erasure in shelters and housing programs across this country.

Like so many of the challenges faced by transgender people in Canada, access to safe and affirming shelter cannot be fixed by the passage of Bill C-16 alone. But passage of Bill C-16 is an important step in the effort to provide trans youth with much-needed support.

Most importantly, the passage of Bill C-16 will signal to agencies, shelters and caregivers that all children and youth have the right to be affirmed, protected and cherished.

Two years ago —

The Chair: Please wrap up.

Ms. Manning: Two years ago Florence and I travelled to Ottawa to participate in a protest against amendments that had been introduced by this committee to Bill C-279. When critics argue that Bill C-16 is being rammed through without due process, I want you to remember that two years in the life of a child is the equivalent to 10.

The Chair: That will have to do; we are moving on to Ms. Potvin.

Ms. Manning: Please let Bill C-16 come to a vote. Thank you.

Melissa Potvin (Schaettgen), Parent Advocate and Community Leader, as an individual: I have been asked to come forward and tell my family's story. You must first know that by doing so I put my family and myself at great risk. Many others have struggled to find ways that they can safely speak up on the issue and some have had to keep quiet. After last telling our story publicly, we were bombarded with a number of letters and emails stating that we were sick and should be shot and burned. The only way I can think of to truly express the fear we felt when we realized that our child was transgender is to share parts of the Facebook post that I posted to family and friends to come out. It was posted in August of 2013.

. . . when Warner was 2 years old, we were lying in bed one night. We were reading a story and Warner said to me, "Mommy, I think God made a mistake.'' I asked what he meant and he said, "I'm really a little girl.''

Warner was able to verbalize what we were already noticing in his daily life but had dismissed as a "phase.'' Since then it has progressed. Warner insists he is a little girl on the inside. Now I know what some of you are thinking: He is 6, how could he possibly even know that? I tell you I thought the exact same thing, but the Warner I see today, who sits behind me, is very obviously a little girl on the inside and out. This is not a phase; it will not go away.

Please keep in mind this is a child. Please continue to look at Warner with love. God made him this way and he has certainly opened our minds up.

Warner is already being made fun of and already feels a lot of anxiety with regards to this. He has told us that he will kill himself if we insisted on cutting his hair and forcing him to look like a boy for school.

My heart breaks every time I try to think about all this. I have a very hard time openly discussing this and even after this post I'm not sure if I'll be able to. The big decision here was to share this and to open up or to continue and try and downplay it and hide it, but Warner is no longer giving us that option.

In the past I have avoided posting pictures of Warner when he was dressed as a little girl out of fear. I will no longer hide my child. Elmar and I are struggling with this and it is a very emotional issue. Take it for what this post is meant for, to help us all understand people like Warner and know that they have no choice. He will suffer tremendously because of this and already has. Our society has come a long way, but not quite far enough for children like Warner. He is not sick, nor is he just confused. Warner is in fact a little girl aside from his "boy parts.''

Again, I ask that you remember that in Warner's future many people in this world will reject him, make fun of him, hurt him, and fear him. As a result, no matter what I choose as a parent he will suffer, as many people like him have and do.

I have faith in the people in our lives and want and hope that even those with religious views about this kind of stuff understand that if I could change this I would. The big guy upstairs has reasons for everything and we are all equally deserving of love and respect.

All 4 of my children were identified as male at birth by doctors. However, for one of my twins it was much more complicated than a simple glance at his genitals. Warner has been exhibiting female mannerisms and preferences as early as the age of 3. We tried to encourage her to accept her male identity. Our first thoughts were that it was just a phase. We had even considered that she may be homosexual and we were hopeful if that was the case we could push it off until she reached puberty. Over the next few years she kept saying that she was actually a girl. We had numerous discussions with our doctor and we began researching children with behaviour and thoughts like hers. I had no idea that children could even be transgender until I came across it in a Google search. Having Catholic and conservative beliefs we initially dismissed the notion that one of our children could possibly be transgender. We read everything we could to try and understand and meanwhile we allowed Warner to wear dresses and female clothing in private. The fear of social rejection and inevitable bullying kept us hiding this secret for six years from the closest family and friends.

By the age of six, we were seeing an increase in Warner's distress with being labelled as a boy. She was sad and very uncomfortable in her own skin. We were worried for her. We sought medical help and consulted our priest. I will be honest, at that point I wanted nothing more than for someone to "fix'' my son. I soon understood that no one could give me the son I thought I gave birth to, because Warner was never really my son at all.

Through medical guidance, reading research, and with love and faith we were able to see that supporting Warner to be herself gave her the best chance of growing up healthy and happy. We agreed to let her do "social transition.'' This was the hardest decision of my life. The results of which were evident immediately. This uncomfortable and sad little boy became this beautiful, happy, outgoing girl almost overnight.

We quickly became aware of all the negativity families like ours faced. Many families live in constant fear and in hiding and don't even fathom the idea of letting their children live freely and openly. We weighed our options: pack up and start over somewhere else or come out and deal with the consequences.

To this day I have many family and friends that will not speak to me and do not see my children.

The Chair: Please come to a conclusion.

Ms. Potvin: I will just skip ahead then.

Warner has already been bullied to the extent that no individual should have to endure. I can give you an example of the type of abuse trans people face. Warner has been assaulted.

The Chair: I'm sorry, you were all given a five-minute limit and you have gone over. We want to have time for questions. Our final presenter, Ms. Cossman.

Brenda Cossman, Director, Bonham Centre for Sexual Diversity Studies and Professor of Law, University of Toronto, as an individual: Good morning, senators, and thank you for the opportunity to appear before you today. In my brief remarks today I wanted to speak to the constitutionality of Bill C-16, specifically focusing on the question of freedom of expression and some of the concerns that have been raised around the implications for pronoun usage. I apologize, I'm covering much of the terrain that the minister covered this morning.

As the minister outlined, Bill C-16 basically does three things. It adds gender identity and expression to the Canadian Human Rights Code, to the hate speech provisions of the Criminal Code and the hate crimes provisions of the Criminal Code. My submission today is that none of these reforms will result in a violation of freedom of expression as guaranteed by the Charter of Rights.

Let's start with the easiest one first: sentencing for hate crimes in section 718.2(a)(i) of the Criminal Code. This provision allows evidence that an offence motivated by bias, prejudice or hatred can be taken into account in sentencing. Race, national and ethnic origin, language, colour, religion, sex, age, mental or physical disability and sexual orientation are already included. Now evidence of hatred on the basis of gender identity and gender expression can also be taken into account.

It's important to emphasize here that section 718 does not create a new offence. It simply means that an existing offence in the Criminal Code, like murder or aggravated sexual assault, if it is motivated by hatred can be given an increased sentence. There is absolutely no impact here on freedom of expression or gender pronouns by adding gender identity and gender expression.

The hate speech laws are actually three laws. There are three provisions: advocating genocide, public incitement of hatred and the wilful promotion of hatred.

Do these provisions mandate pronoun usage or criminalized pronoun misuse? It is not even close. It is absolutely not advocating genocide.

Public incitement of hatred has a high threshold as imposed by the court. It requires that there be a likelihood of the breach of the peace that will result in violence and personal violence. The misuse of pronouns again doesn't come close.

The wilful promotion of hatred. Hate speech laws also have a high threshold. As the minister mentioned several times this morning, the Supreme Court of Canada has repeatedly defined hate speech as only including the most extreme forms of speech.

Extreme manifestations of detestation or vilification not dislike, disdain or offence.

Further, as the minister mentioned, hate speech criminal charges cannot be laid without the approval of the Attorney General. Pronoun misusage without more could simply not give rise to a charge of hate speech let alone a conviction.

Also, as the minister stated while talking about hate speech laws more generally, the Supreme Court of Canada has consistently upheld the constitutionality of these laws both criminally and within human rights codes, from Keegstra in 1990 to a unanimous court in Whatcottin 2011, the Supreme Court of Canada has said that any restriction that these laws place on freedom of expression is a reasonable limit within the meaning of section 1.

Finally, Bill C-16 adds gender expression and gender identity to the list of prohibited grounds of discrimination in the Canadian Human Rights Code, joining the 10 other provinces and territories that have already done so, and the rest of the provinces and territories which have now introduced them.

What might this mean specifically in requiring pronoun usage? There are as yet no rulings on this. The only thing we have right now is the Ontario Human Rights Commission's policy. In the Ontario Human Rights Commission's opinion, and I quote:

Refusing to refer to a person by their self-identified name or proper personal pronoun

— could constitute gender-based harassment.

But it has further clarified its position, noting that the Ontario Human Rights Commission does not require any particular gender-neutral pronoun. They suggest the use of the word "they'' or, if you are not comfortable with that, simply use a person's chosen name.

Bill C-16 has no specific requirement of using any particular pronouns. There is no particular requirement to use any particular gender-neutral pronoun. There is a requirement that people not be intentionally misgendered. It is not a right to a particular gender-neutral pronoun, and I believe that it does not even mandate the use of gender-neutral pronouns. If people oppose that, they can simply abide by the law by using a person's name.

It requires that we don't use the wrong name, and if you don't like the right one, then just use a person's name.

Much has been made that this is compelled speech and for some reason this seems to be the first time that the law is telling us what we must say as opposed to what we cannot say. This is not true. There are many examples in Canadian law of compelled speech.

Three, the bilingual labelling requirements on food packaging, the health warnings on cigarette packages and the oath of allegiance to the Queen at citizenship ceremonies are three examples where the Supreme Court of Canadian has upheld the constitutionality of each of those.

Bill C-16 is not about the violation of freedom of expression. It's actually about another charter right. It is about section 15 and the equality of trans and gender non-binary Canadians.

Senator Plett: Thank you to all three witnesses, especially Ms. Potvin and Ms. Manning. Your speeches were heartfelt. Certainly, I don't think anybody in this room disagrees that bullying and hate speech should be illegal and already is. So we are all on the same page there.

I'm trying to wrap my head around the idea of enshrining rights based on an individual's identity. Do you believe that people can identify as another race, another age, as trans abled? Do you believe that these individuals are as valid as those identifying another gender?

I met with a biologically male adult who identifies as a six-year-old girl. Do you believe this individual's feelings of being a female are more legitimate than his feelings as being a child? Lastly, do you believe that any of those groups should have special protection under the law?

Ms. Cossman, if you want to answer, that's fine.

Ms. Cossman: I don't think that we are here today to discuss a whole series of identities. I think that we are here today to discuss a bill that specifically protects —

Senator Plett: Could you answer that question.

Ms. Cossman: — gender identity and gender expression. I believe that Bill C-16 is a fundamentally important bill to address the unique vulnerabilities and disadvantages that trans and gender-diverse Canadians have experienced historically and still today. I don't think that the other examples you are giving are ones that are in any way on the public policy table.

Senator Jaffer: Thank you to all three of you for being here. Listening to both of you, Ms. Manning and Ms. Potvin, I am humbled. It takes a lot of courage because you have brought intimate things into the public forum. Unfortunately, we have time limits, and if you provide your full speech to the clerk we will read it.

Because of time limits, I will just ask one question of Ms. Cossman and Ms. Manning. You have both been in the room and have heard comments around the issue of equal rights under section 15 and freedom of expression. When those two are in competition, how do we deal with that?

Ms. Manning: The idea that there is a competition here in some way, shape or form, to me, just does not compute.

What we are talking about here is a basic recognition of dignity and making sure that our law now is updated so that fundamental facets of human diversity are respected and protected within Canadian law.

To me, nobody is losing out. As was just made very clear by Professor Cossman, the chances of people somehow having their speech abrogated are zero to none.

Ms. Cossman: I would simply add that there are situations where Charter rights do come in conflict. The Ontario Human Rights Commission has elaborate policies on how to approach competing rights, and it is the job of the courts to actually address these questions.

Sometimes Charter rights do come in conflict. They did come in conflict in the Keegstra case, they came in conflict in the Whatcott case. This is the work of the Supreme Court of Canada, to find a way to balance those rights.

Senator Pate: Thank you for coming, and thank you both, Ms. Manning and Ms. Potvin, for the support for your daughters and for the work you have been doing on behalf of the entire community.

Following up, Ms. Cossman, from a question that Senator Omidvar asked of the minister. In terms of the formal recognition of the prohibition of discrimination on the grounds of gender identity and expression, have you done any research or are you familiar with any research that might be available on what the adverse impact, if any, might be on preventing discrimination on the grounds of sex?

Ms. Cossman: There is very little research that's actually been done on this yet. There is one case, the Nixoncase, decided quite a few years ago that put the question of gender and gender identity into some degree of conflict. Again, that was a question where the courts had to figure out how to resolve this question.

It seems to me that this is a place where giving rights to one group is not actually taking away the rights from any other group. This is a place where extending rights to one group is simply about extending rights to that group.

I do think there are ways where equality rights and freedom of expression rights do occasionally come into conflict. I don't see gender identity and gender expression actually coming into conflict.

Ms. Manning: I know there have been questions raised in this body, and I will put it here on the table, whether women's rights will be undermined by this legislation. I will speak to this directly.

As I'm currently the director of one of the oldest women's study programs in the country, I am a very strong feminist. I was in Beijing in 1995, so I have been around a long time in feminist circles and work. I have to say that passing Bill C-16 is one of the most feminist pieces of legislation that we can pass at this moment in time.

As far as I am concerned, supporting and affirming the rights of trans people, particularly transgender women who are targets for misogynistic kind of attacks, and transgender women of colour especially, is really critical at this moment in history.

I would like to note that as a very long-term feminist — my father can correct me on this, but I think I was probably nine years old when I first identified as a feminist — for me this is the most pro-feminist thing we can do at this moment in history.

Senator Omidvar: I won't take up too much time but I want to thank you all for sharing your life stories. It is very moving.

I have a question for either Ms. Cossman or Ms. Manning. What percentage of the Canadian population is transgender? Has this number changed significantly over time? Do you project that this number will change with the passing of this law? If so, why?

Ms. Manning: Thank you very much. That's a wonderful question.

We don't have good statistics yet. Hopefully in the next few years, with changes to the long-form census, we will have much better data. With data out of New Zealand I can tell you with respect to transgender youth in particular, about 1.6 per cent of trans youth are out in New Zealand as teenagers.

What we are seeing before the passage of this bill are huge increases of young people coming to clinics across the country. When I say "huge increases'' I mean increases by 400 and 500 per cent between 2009 and 2015. The number of young people who will be affected, whose lives will be improved by the passage of this bill — we cannot under estimate that number. It's hard to put any tabulation on at this point, but I can tell you these young people are coming out in increasing numbers and they need us standing behind them.

Senator Sinclair: This might be a question impossible to answer briefly, but would you mind sharing your views on the need for which there is public education around the issue of gender identity and gender expression so that the kinds of things that your children have experienced personally as well as in their public environments might be alleviated?

Ms. Manning: I really appreciate this question. There is a tremendous need for public education at this point in time. In fact, that is one of the major reasons that I am here today. I feel like with the passage of Bill C-16, we have an opportunity to present to all Canadians, to understand much more deeply, how necessary it is that we recognize the rights and well-being of transgender and gender diverse people in this country.

The need is huge. It's going to require a lot more than parents like ourselves and the many other parents we know who have been coming out and doing media work. That has been the main form of communication that we have had available to us to let other parents know that it is okay to affirm your child; to let school boards know that it is okay, and in fact it is necessary, to create safe spaces for all of the children in their schools.

I'm hoping that as we move forward this is only the first step. In fact, there is so much more work to do particularly for those who are not just fighting trans phobia but are also marginalized by poverty, racism and so many other forms of oppression as well.

Senator Sinclair: Thank you.

Senator Joyal: Ms. Cossman, I'm trying to catch the legal equivalence between "gender identity'' and "gender expression.'' In other words, if there is a complaint based on one or the other, what for you would be the distinctive elements to choose one rather than the other, or would you go at both at the same time, even though the bill says "or''? The bill distinguishes between the two.

Could you explain to us, on the basis of the legal definition, how that should be approached in terms of its common understanding?

Ms. Cossman: That is a very good question that there is not an answer for just yet.

Like the other listed grounds of prohibitions on discrimination, it is up to individual litigants who bring their complaints forward to decide which criteria will form the basis of their complaint. It will be up to individuals themselves to identify is this gender identity or gender expression? I imagine in the short term we will see those complaints brought on both bases. It will then be for the tribunals and eventually the courts who will begin to articulate the definition of both. The fact that there is no definition in Bill C-16 itself does not mean that definitions will not evolve. They will evolve with the tribunals and with the courts and eventually with the Supreme Court of Canada.

I think the way in which the distinction between "gender identity'' and "gender expression'' evolves will, in turn, lead people to make choices based on "it seems more like this or more like that one.'' It will evolve based on litigant choice and then eventually based on individual courts.

Senator Joyal: So that the arguments of Egale that we have heard could be addressed by the fact that the complaint would be based on both at the same time. In other words, the court would not have to say, "On gender identity you win but you fail on gender expression.'' The court would address it more or less as a whole, legally. Do you think I am right or wrong in that approach of how the court will wrestle with that?

Ms. Cossman: I have learned to try not to predict what the courts will do.

Senator Sinclair: Me too!

Ms. Cossman: I think that it may evolve as one concept. I think it's equally likely that it will evolve as two distinct concepts. Again, that will be up for the courts to struggle with and articulate along the way.

As to the questions about whether gender expression is too vague and might it be struck down because it is constitutionally too vague, we won't be able to decide until the courts have had an opportunity to define those terms, much like it has over time devolved definitions for all the other terms of prohibited discrimination.

Senator Joyal: Ms. Manning, I hesitate to mention this to you but the old cultural phenomenon of impersonation which is part of the entertainment industry to a point trivializes the transgender problem. It is seen as if one day you decide to be a man, another time to be a woman and then you put those clothes in the closet and then you are who you are. It seems to me that there is a real cultural issue with how, traditionally, we have approached the cultural phenomenon of impersonation.

I know I am outside the bill, Mr. Chair, but this is part of the education issue that has been raised by Senator Sinclair in a way.

Ms. Manning: I'm not sure I understand. What we are talking about is a western understanding of "gender'' and "gender expression.'' In fact, there are many cultures around the world who have very different understandings of what gender can look like and how it's expressed.

Regarding the idea that somebody might feel one gender in one capacity and another gender in another capacity, there are lots of different contexts in which that is not just accepted but is valued. Often it is part of deep spiritual traditions.

I think what you are speaking to is an idea that has been presented in film and TV alongside many other kinds of deeply mischaracterizing and often transphobic representations of transgender people and the struggles that they face. We have to remember also — and this is key — that for many people until recently, and up until today, to actually live fully in accordance with your true self-when you are a transgender person has been all but impossible given the social ridicule and stigma that is associated with that.

Senator Boniface: Thank you all for being here. Particularly, I want to thank Ms. Manning and Ms. Potvin for your comments because I think there is nothing more emotional than your own children. I deeply appreciate you speaking on this issue.

I'm interested if there are any stats collected around acts of violence, the bullying. Are the schools capturing this? That is important information to be on the table.

Ms. Manning: Yes, absolutely. There have been a number of surveys now. The largest was a 2015 study that came out of UBC — I cited it in my brief — where the violence and threats of violence that transgender young people experience in schools, in particular, is astronomically high, well over 60 per cent. For some it's a daily occurrence. We're not talking about something whereby occasionally someone gets asked a rough question. We are talking about for many people this is a daily lived experience. Therefore, it is no wonder that many trans young people are facing such high rates of health issues, of suicide and, as I was discussing earlier, of homelessness as well.

First it's the parents' acceptance and support, but in second place are the schools. The schools, I'm sorry, are failing us miserably at this time.

Ms. Potvin: When my daughter came out, it was a difficult thing to conquer. We live in rural Ottawa in a Catholic community and our school is Catholic as well. Within months of coming out and living as her true self, she was attacked by a group of other children who were double her age, six or seven of them who pinned her down to the ground trying to figure out what her gender was, removing her clothing and trying to see what her genitalia were.

This is not rare. This is a common occurrence for these children. It's not an exceptional case. This happens every day. I could give you hundreds of examples I have seen first-hand or been involved with for these kids. The schools aren't equipped to deal with it because there are no policies or laws in place. They don't know what to do.

Senator Mitchell: Thanks to each of you for the compelling and powerful and emotional, in many respects, presentations.

There is an interesting irony that some of the people who oppose this bill do so on the basis of the claim that it might be an affront to their freedom of speech, a form of expression. Yet, in opposing this bill, they are denying the protection of another form of expression, gender expression.

My question is to get at the day after this bill is passed. What will this mean to parents like you, Melissa Potvin and Kimberley Manning, and to your children and to your family? How will this change your lives for the better?

Ms. Potvin: We live every day in fear for our daughter, for her future. We are terrified for what she faces, the discrimination, the harassment, the judgment. Having this bill in place we know will not solve every problem, but at least it sends a message to Canadians that it is unacceptable to discriminate against individuals based on their gender identity and gender expression. For us, this is absolutely key to our children's future. We are fighting for our children's lives. It's not just some bill to us; for us it's our children's lives and future.

Senator Mitchell: The other question is perhaps more technical but it also will impact people at a human level. There is a strange inconsistency, it seems to me, in the question of defining gender identity and gender expression in this bill. That inconsistency is no other element that is listed in a bill of that nature is defined. Is it not another strange irony and would it not be a hurtful one that in a bill that is designed to prevent discrimination it would be inherently discriminatory to single out these two items, gender identity and gender expression, by defining them in a way that clearly isn't necessary because the courts and tribunals have been doing that and will continue to do it? Will that be hurtful in fact?

Ms. Cossman: I think that it absolutely would. It's worth observing that historically when new grounds of discrimination have been added to either the Criminal Code or to human rights codes, similar arguments have been raised in opposition.

Most recently, when sexual orientation was added, there were all kinds of arguments, arguments ad absurdum, about what kinds of orientations might this include and would this then allow the legal recognition of pedophilia as a sexual orientation. We heard these kind of arguments ad absurdum saying you must absolutely define sexual orientation. We didn't. We didn't define sexual orientation because there was a clear understanding that it was intended to protect the rights of gay and lesbian Canadians.

Here it is very clear that the intention is to protect the rights of trans and gender-diverse Canadians. The idea that we need to single this out I think is completely wrong. We don't define any other ground of discrimination either in the Charter, in the human rights codes or in the Criminal Code, and it would be wrong to start here.

Ms. Manning: May I add one thing to that?

The Chair: Briefly.

Ms. Manning: Thank you. Further to the last two questions, with respect to protections and vulnerable populations, the last time this came through this committee, the committee slapped on an exemption for federal protected spaces. I would like to ask that you all remember when you are considering moving forward with this bill that 40 per cent of transgender young people feel unsafe in their school washrooms today. When you are thinking about protecting vulnerable children and youth, I want you to think about transgender kids and what they are suffering not in some kind of hypothetical state down the line but right now at this very moment that I am speaking.

Senator Plett: I am hoping that Ms. Cossman will believe this is part of this bill and will answer this question.

Presently the only protected ground that is not an immutable characteristic and is based on internal and personal experience is religion. There is protection for discrimination based on religion, but the expression of that religion is implicitly covered by this ground. Likewise, do you not agree that gender expression would be covered by gender identity?

Ms. Cossman: I actually can't honestly answer the question. If the bill only protected gender identity, it would then be up to the courts to decide how broadly to define that and whether that should also include gender expression.

If the bill, as it does here, has both gender identity and gender expression, then again it will be up to the courts to elaborate, to define and distinguish between these two concepts.

Across the country, if you look at the provincial human rights codes, some of them protect only gender identity; some of them protect gender identity and gender expression. It will take some time for the tribunals and for the courts to articulate the relationship between the two, whether gender identity is the overarching concept which includes gender expression or whether they actually are two quite distinct forms of protection.

Senator Plett: The Ontario definition of gender identity as well as Bill C-279 states that "sex is assigned at birth.''

Do you believe sex is assigned at birth? Ms. Potvin talked about her son having come to her at age six and said, "I think God made a mistake.'' Do you believe, Ms. Cossman or any of the others, that sex is assigned at birth?

Ms. Cossman: I'm not sure I understand the question.

Senator Plett: Well, the Ontario definition of gender identity says sex is assigned at birth. We have heard the sponsor of this bill, in his speeches a number of times, say the sex assigned at birth.

Now I didn't take science beyond high school, but my understanding of biological sex was determined by anatomy and chromosomes, and it wasn't assigned at birth. People are saying I was assigned the wrong sex at birth.

Ms. Manning: I can speak to that. Thank you.

What we are talking about is when a doctor or midwife looks at a child's genitals and says, "I see a penis,'' or "I see a vulva,'' and on the basis of that, they make a decision of what they think the sex of the child is.

In this bill, we are enshrining into law the protection of gender identity and gender expression. You just spoke of chromosomal genetics; there are different bases for one's constitution as a sex, as a biological experience, but that is not necessarily the same as one's gender identity.

We are talking about when a physician or a midwife looks at a child's genitals and says, "Oh, that is what we have here.'' What we find out later is that sometimes it is not the case.

Senator Plett: But they didn't assign the sex. Thank you.

Senator Omidvar: One can't help but be absolutely horrified by the story you told. I want to share my disgust and dismay that this happens in Canadian schools, in particular.

I want to understand the material impact of Bill C-16 on that kind of context because this is federal law; schools are provincial. I want to understand how this will play out.

Ms. Manning: Yes, I am very pleased that so many of the provinces have been moving ahead of this house to try to make sure that schools are beginning to comply and create safe spaces for all children and young people.

However, what I want to stress today is that the passage of this law, even though it does not technically effect ministries of education, in a sense, sends a clear signal to all Canadians and all jurisdictions that it is absolutely unacceptable to discriminate against transgender and gender diverse Canadians and all transgender and gender diverse peoples living in Canada.

I want to be very clear that this body has an incredible responsibility to send a message to everyone else who is in Canada today about the importance of the passage and the protection of these rights. That's going to be the biggest impact of this work moving forward.

Ms. Potvin: There will be a ripple effect. Once this bill is passed, it will give them the kick in the pants they need on other levels to recognize the need for protection for these children and adults.

Senator Joyal: Let's try to put this in an international perspective. Could you inform us, Ms. Cossman or Ms. Manning, because you are involved with those types of studies, which other countries would have similar provisions in their statutes than what Bill C-16 seeks to achieve?

I was thinking of the usual suspects, which are the United States and the U.K., but there might be other countries in the European Union that may have similar protection, or any other country in the Western World. My preoccupation at the moment is that when it becomes part of Canadian law; the Canadian government has a responsibility in the international forum to promote those rights. To me, it's very important we know with whom we are playing on the world stage.

Ms. Manning: I think this is a terrific question. I will leave it to Professor Cossman to speak specifically to other countries.

Right now we are at a moment in history where we are seeing, south of the border, legislation being introduced and in some cases passed which is transphobic in the extreme. We are seeing this with the bathroom bills that are being introduced right now.

I would argue that right now, in history, Canada has an important responsibility to signal that we are not going to go down that road, and that we are, in effect, going to show what it means to protect all of the people who reside within our borders. We can play a real leadership role on this file internationally.

Ms. Potvin: I can speak to experience with this. Most recently we were approached by the BBC network, and what they are saying is the U.K. is looking to Canada to see what we are doing because we have seen such an influx and started the health care for children like this. They are looking to us to be the example.

We recently took part in a documentary to express this, and the idea was to show the U.K. what we are doing. We have a chance to be real leaders at the international level now.

Ms. Cossman: The United States is not the place to look to right now for the protection of most things.

There are a host of countries that have different protections for trans individuals, some places where one might not expect them. There was a recent decision of the Indian Supreme Court that extended protection to trans-citizens. New Zealand has interesting developments afoot, and an Israeli lower court has made a decision on trans rights.

This is a thing that is emerging in a patchwork around the world right now, much the way that same-sex marriage evolved in a patchwork, where Canada was among the frontrunners, where Canada was a global leader. We are not alone in doing this, but it remains a patchwork, and we can provide leadership.

Senator Joyal: In other words, there are our usual countries of comparison like the U.K. Are there countries in the European Union that have similar protection? I am lazy. I should have looked myself, but since you come as an expert on this, I thought I would ask you.

Ms. Cossman: I would have to look to see the various decisions that are emerging from the European Union and from the human rights court. Of course, everyone is busy withdrawing from the European Union at the moment.

Senator Joyal: Is the United Nations doing any kind of group study in relation to transgender people?

Ms. Cossman: They are included. There is now a special ambassador for LGBT rights that has been in existence for a couple of years. It is still a very new position. The current commissioner is from Thailand, I believe. They are starting to do some of this work, but they also have a lot of catch-up work to do in terms of the gay and lesbian piece, and unfortunately the trans piece often falls behind.

Senator Mitchell: Ms. Manning, when we were discussing this over the weeks and months, you mentioned an interesting juxtaposition that the specific impacts of this bill on the often desperately lived experience of trans people against the arguments opposing that are often extremely hypothetical, and those often fall into several categories, one of which is shelters, and another one of which is sports. Could you comment on that?

Ms. Manning: Yes. We are at a moment where we are seeing the evolution of law and of our society. What we do know is the lived experiences that I have done my very best to document in my brief make for pretty horrifying reading material. This is real. This is happening right now across the country.

The arguments that I have heard in opposition to Bill C-16 or wanting to propose amendments or changes, et cetera, are based, as far as I am concerned, on hypotheticals and what-ifs. We have a very strong court system; we have a very strong, astute and well-researched bill that has been presented before you. To me, it's a no-brainer.

If I may, I would like to close with the words of my daughter Florence who, when we were discussing our preparation for coming here today, said to me, "Look, Mom, it's just respectful that we pass this bill.''

The Chair: Thank you, witnesses, for being here today and for your informative and, in many respects, very heartfelt testimony. It is much appreciated.

(The committee adjourned.)