Past Session:

Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue No. 29 - Evidence - May 18, 2017

OTTAWA, Thursday, May 18, 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 10:30 a.m. to give clause-by-clause consideration to the bill.

Senator Bob Runciman (Chair) in the chair.

[English]

The Chair: Today we're to deal with clause-by-clause consideration of Bill C-16. I want to make members aware that we have officials in the room. I'm not going to call them to the table unless questions arise, but I wanted to make you aware they are here and if there are queries, we can ask them to come forward.

Moving ahead, is it agreed that the committee proceed to clause-by-clause consideration of Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code?

Hon. Senators: Agreed.

The Chair: Agreed.

Shall the title stand postponed?

Hon. Senators: Agreed.

The Chair: Agreed.

Shall clause 1 carry?

Senator Unger: I move:

THAT Bill C-16 be amended in clause 1, on page 1, by replacing line 16 with the following:

"religion, age, sex, sexual orientation, gender identity and''.

My proposed amendment changes only one word of Bill C-16. It would change "gender identity or expression'' to "and expression'' in the Canadian Human Rights Act only.

This change would create one ground of discrimination which includes both identity and expression rather than two grounds. It would not diminish protection for either gender identity or gender expression but would clarify that they are linked together.

First, the purpose of this amendment is simple, yet significant. Gender identity is intrinsically connected to a person's identity and gender identity comes from a personal belief. The legislation should reflect this fact for a number of reasons. Gender expression cannot be separated from gender identity. Doing so would grant transgender rights to non-transgender persons because it divorces gender expression from the personal belief that one is transgender.

Second, this amendment would address concerns that Bill C-16 will permit non-transgender persons to inappropriately access gender segregated spaces. You cannot pretend to be transgender and expect to be protected by transgender rights. To be clear, this is not about preventing transwomen from accessing women's spaces. Rather, without an amendment, we would be allowing anyone to access gender segregated space. This is a necessary clarification. Transgender rights belong to transgender persons only.

Third, the amendment will help to address concerns over free speech. As a belief based right, gender rights will not impact freedom of speech any more than religious rights currently do.

In conclusion, connecting gender identity with gender expression as one ground would benefit both the transgender community and the non-transgender community. It clarifies that transgender rights are for transgender persons only and allays concern about security and free speech.

The legislative summary for Bill C-16 indicates that the bill is identical to an earlier private member's bill, Bill C-204, except that it lists two terms separately, dividing them with a comma, whereas Bill C-216 places the word "or'' between the two terms thereby linking the terms more closely together. My amendment will further strengthen this important linkage.

The Chair: We'll open this up for discussion, beginning with the deputy chair, Senator Baker.

Senator Baker: Thank you to the senator introducing this subject.

I would simply like to point out to the committee on the record that we have gone through the wording in each province and territory. There is only one province that does not have the specific wording we're referring to in this particular case before this committee.

We did note in a previous meeting, and it was read into the record, that two jurisdictions had "gender, gender identity, gender expression.'' The majority of the jurisdictions had "gender identity or expression.''

The legislation, the human rights acts of the provinces and territories have operated well. They have been in existence, some of them, for decades. Our case law has shown us, as we put on the record, that it has worked well in the provinces. Most of the objection this committee has heard is with respect to what's happening in the provinces, not with respect to this particular bill.

I would say that we're simply, in this particular bill, following the existing case law, the existing provisions and judgments that we've had over the years in the provinces, so I would be voting against this amendment.

Senator Sinclair: Looking at the provisions in the other legislation in the provinces, no one else seems to have felt that this was going to be a problem or has been a problem.

Those laws have been in place now for a number of years, and this particular attempt to tie the two together, gender identity and expression, through this amendment is not only unnecessary but it's going to create confusion. It will create inconsistency in the law and it will, I think, result in people being able to get away with nefarious acts of discrimination against trans people because you can discriminate, therefore, against a person on the basis of gender identity without expression by virtue of your amendment. If you can't prove that it was both identity and expression that led to the act of discrimination or to the criminal act, then the provision is not protective at all of trans people.

I would speak against the amendment because the intention behind it is not going to result in any clarity with regard to the law. In fact, I think it's going to create more confusion and is going to result in more difficulty in being able to make findings of discrimination, as well as to make findings that the Criminal Code requires in order for this to be considered as an appropriate factor in sentencing.

While you might feel, senator, that this is somehow going to make things a little clearer, I don't think it's going to do that at all. The statement that you make that gender expression cannot be separated from gender identity is totally contrary to the evidence as well that you can have gender identity without gender expression, depending upon the circumstances of the situation, and vice versa. You can have gender expression without necessarily there being any clarity around the issue of gender identity.

The important thing is what's in the mind of the person being charged with or accused of discrimination or has been convicted of a criminal offence against a transperson and what it was that motivated them. In this particular case, by virtue of your amendment, the prosecutor would have to prove that they were motivated by both gender identity and gender expression, and that simply is bad law, so I would vote against it.

Senator Batters: In response to Senator Baker and Senator Sinclair, I would simply point out there are certain provinces that do not have gender expression in the particular laws they have brought forward. They only have gender identity. There are certain provinces that have both, gender identity and gender expression. There are certain provinces that have passed laws that only have gender identity and not gender expression at all.

I think Senator Unger's amendment is a very common-sense amendment and is not seeking to strike gender expression out of this equation but is simply adding that. We heard from many witnesses that gender expression is an essential part of this particular issue.

Referring back to the previous private member's bill, which did not include gender expression, only included gender identity, I asked the Minister of Justice when she was here to clarify what adding that particular expression literally, adding gender expression, would add to this particular bill. She didn't really provide a lot of clarification on it. Instead, she pointed to previous court rulings and human rights decisions. Of course, those were all in place before this particular law was in effect.

I think that this keeps the entire intent of this, and it's a good common-sense amendment, so I will certainly be supporting it.

The Chair: Is there any further discussion surrounding this?

Senator Plett: Let me just put my two cents' worth in here. I'm certainly not going to try to debate with the legal minds around the table. I'm not one of those, but I believe, as Senator Baker has said many times, we need some people who don't have legal minds but have common sense, rather. Hopefully I'm one of those, at least at times.

I want to make reference to what Senator Baker has said because Senator Baker literally with every witness here has used exactly the same argument. The provinces have it; there doesn't seem to be any problem, so why can't we go ahead?

The fact of the matter is we heard from witness after witness after witness that there are still problems. I don't know from where we get the idea that everything is good in the provinces. We heard many witnesses talking about the tremendous high suicide rate. We have tried to find out from the provinces whether their transgender bills have reduced suicides. No one has any statistics. I'm not sure why they wouldn't have those, but they don't. We have heard from the transgender people, the transgender activists that have been in here, the transgender community, that this is still a problem and there are a lot of suicides.

The federal legislation is the smallest portion of this. Most of this is being regulated by the provinces. All our schools, where all our young people are, are regulated by provinces and yet we have problems.

I dismiss Senator Baker's argument out of hand. If his only argument is that the provinces have it so we may as well as have it here, or if it's acceptable for the provinces it's acceptable for us, we must have better legislation. As someone who tries to implement common sense, I want to say that I think we need more clarity.

Justice Sinclair is on the bench and says this will be more difficult for judges and prosecutors. We're not trying to adopt a bill to make life easy for prosecutors and judges. We're trying to make life more acceptable for the transgender community. That is what we are trying to do here.

I certainly support Senator Unger in her comments. I think this is something that will improve the legislation. It will certainly not worsen the legislation. It behooves us, it is our responsibility, to try to make this as good as we can. I do not support the legislation but certainly I do support trying to improve it. I think this is one way of doing it, so I will be supporting Senator Unger's amendment.

[Translation]

Senator Dupuis: The amendment you're proposing reminds of a saying that, even though it exists only in legal language, makes a great deal of sense. "The legislator doesn't speak to say nothing.'' Words count. My problem with your amendment is the following. If we want to protect gender identity and gender expression, why put "and'' instead of "or'' rather than "gender identity,'' "gender expression.'' In that sense, I think "gender identity, gender expression'' works very well to protect transgender rights. As a result, I have a problem with the "and.''

Senator Boisvenu: This bill, which claims to have the goal of protecting transgender people, is very disputable. I'm not the one saying this. The transgender people who came here to speak are saying this.

Other people have told us the bill is extremely ambiguous. Senator Sinclair is right. The bill is already ambiguous. The introduction of this amendment, which seems essential, won't increase the ambiguity, but will decrease it instead. Many of you weren't here yesterday when certain witnesses told us — and this scares me a great deal — that the bill, which can be interpreted very subjectively, will significantly increase charges. This concerns me.

The other factor is the testimony from the Pour les droits des femmes du Québec representatives, who said the bill may make women less safe. This also bothers me.

I think Senator Unger's proposal tightens things up to make the bill a little safer for women, and also for legislators. Like Senator Plett, I'm not a lawyer. I try to use common sense and ensure that we don't pass a bill to make the situation worse, but to make it better. Throughout all these hearings, I think it was demonstrated that the bill doesn't make things better for transgender people, and maybe even far from it.

The bill also doesn't make things clearer for judges. Far from it. The situation, which is already confusing, will be even more so. This may make the women's safety situation worse. I hope that, around the table, where almost a majority of women are seated, you're taking these factors into account. The testimony presented yesterday by Pour les droits des femmes du Québec struck me. They told us to be careful. They said their concern was to not create more victims, but to protect people who are subject to discrimination. However, this bill won't do that. Again, I'm not the one saying this. Transgender people have said this.

I think the senator's proposal is entirely in order. I would even say the proposal is very beneficial for the bill.

[English]

Senator Pratte: I think the real purpose of this amendment is written in black and white on the document that Senator Unger distributed to senators yesterday. It reads:

Rather, without an amendment, we would be allowing anyone to access any gender-segregated space. This is a necessary clarification.

That's the idea here. The idea is that some transgender people are potential aggressors to women, and I think this is pure prejudice. It's not based on facts. Some statistics that were presented to this committee to this effect were shown as non-valid. Because it is based on non-facts and prejudice, I will be voting against this amendment.

The Chair: Does any other senator wish to intervene?

Senator Joyal: With great respect to Senator Unger, I can't support your amendment, senator. I will explain why, and I will use non-constitutional terms, if I may say so.

The bill addresses two groups of transgender. First, there are persons who claim being transgender on the basis of identity. They feel that they were born with male genitals or female genitals, but in fact they are of the other sex. Second, there are other persons who feel they are at a point in their life of deciding that they identify with another sex. They adopt the behaviour in the way they dress, they use makeup, they walk and they express themselves. They adopt pronouns that would reflect that reality.

With your proposal, you would exclude that second group of transgenders. Instead of making life easier for transgender people, in fact we would exclude them. We would say, "If you want to be protected under the Criminal Code and the Human Rights Act, you have to join both ways of being transgender,'' for purposes that you and others around the table have explained, and that Senator Boisvenu has just explained.

I don't think it is the purpose of what we want to achieve. We want to protect all transgenders. We understand the difficulty of it. No one would ignore the practical difficulty that might arise from reality, but the principle of it would be sound, in my opinion, and it would be for the human rights court, be it federal, provincial or territorial, to make that distinction and to apply those principles.

That is why I feel the bill is sound as it is proposed to us, and that's why I would not be voting for your amendment, with apologies. I have great respect for you, senator, and for Senator Plett, because he makes his argument forcefully and convincingly. However, I cannot support the amendment, senator.

Senator Omidvar: I, too, am not a lawyer, but I hope I have just as much common sense as Senator Plett has.

What gives me a hint is that one line above this clause is another phrase. It protects discrimination based on "national or ethnic grounds,'' not on "national and ethnic grounds.'' I take my direction from the use of language that protects on both grounds, not on a combination of the two grounds. I think we all know what "national and ethnic grounds'' would mean.

It would be limiting in its application of law, so I will be voting against the amendment, respectfully, Senator Unger.

Senator Frum: I do plan to support this amendment, but I want to briefly say that I reject the idea that it's bigoted to expect clarity of language in legislation. I find that a very insulting idea.

There has been a resistance to provide any definition for the terms "gender expression'' and "gender identity.'' They're very vague. We heard that over and over again in testimony.

I think that Senator Unger's amendment provides greater clarity that these two ideas are linked. I heard Senator Sinclair say that they can be separate. Frankly, I don't understand that, and that's the problem. It's not clear to me at all that they can be separate.

I think to tie them together is helpful for clarity, and that's what I think Senator Unger is trying to achieve. I don't think that makes those of us bigots who think that's a good idea. Thank you.

Senator Batters: Just to briefly follow up on that, I completely agree with what Senator Frum just said. The lack of definition is why, with several different legal witnesses including the Minister of Justice, I've been trying to ascertain, as have others have been too, exactly what gender expression adds to this particular bill that gender identity itself does not.

We've never received an adequate answer on that, or really any sort of answer. Generally, we've received an answer that this is the sort of thing that courts and human rights commissions have provided clarity about. Of course, all that clarity has come without this bill being in effect, so I think this particular amendment provides some clarity that the legislation itself does not.

Senator Fraser: On the matter of clarity of language, it seems to me that both formulations are actually clear. It's just that Senator Unger's formulation would narrow the application of this bill, which is why I would not support it.

The Chair: Senator Unger, do you wish to respond to any of the comments that have been made?

Senator Unger: Yes, I do. The intent of my amendment is to make clear that transgender rights belong to transgender people. We all know that many different examples are used.

I believe this is a protection for transgender people, and to suggest in any way that I'm bigoted on this issue, quite frankly, I find insulting. I am not.

I would like to refer to precedents for linking gender identity and gender expression. From Ontario, in a decision in 2006 the Ontario Human Rights Tribunal acknowledged that gender identity may need to be verified. I won't go into detail about that, but six steps were put out to verify gender identity.

To me, linking these two shows that this is based on a personal belief. People don't just walk around and do things without a belief, something like religious beliefs. We have them. We have the right to them, but we cannot force them on other people.

This is a personal belief from which comes the gender identity belief and then gender expression. I believe they should be linked so that it's one right. This bill only amends the human rights legislation.

Again, I'm certainly not a lawyer, so I ask the lawyers to please bear with me. Gender expression cannot be separated. Doing so would grant rights to non-gendered persons. This is one protection. This amendment is not segregating women. It's making sure they will be safe. The second point I made was to try to ensure safety for transgender people.

I have heard many concerns about the possibility of free speech being impacted. This amendment will help. It won't cure or fix everything. It will help to address concerns over free speech. I humbly ask for your support.

Senator Mitchell: I would like to address a couple of points that Senator Unger made, but I want to preface those by saying that I appreciate her concern for transgender people and that this amendment is coming from a place that she believes is true and genuine.

I would say, with reference to your point about Ontario's case in 2006, that Ontario didn't have gender expression in its law until 2012, at which point it separated the two, gender identity and gender expression, with a comma, which is in effect an "or.'' In fact, all nine provinces that have gender expression as well as gender identity either link them with an "or'' or list them with a comma, which is in effect the same thing.

At the real heart of this, I agree with Senator Fraser is that this would limit and it would actually impact in limine a range of cases where trans people wouldn't be protected. I don't want to go too far into the weeds, but at the heart of your argument is that you can't separate gender identity and gender expression. However at the heart of this bill is that in fact trans people frequently have to separate their identity from their expression because they get bullied and discriminated against. They lose jobs and places to live because they have expressed and people realize what their identity is.

In fact, the very heart of this bill is exactly contrary to the very heart of your argument. They are split all the time so that trans people can make their way through lives without suffering the kind of discrimination and bullying that most of us can't even imagine.

Senator Pratte: It was not my intention to say that senators who are proponents of this amendment are bigoted or prejudiced, and I apologize if that's how it came out.

The Chair: Have we exhausted this discussion?

As no one wishes to join in at this stage, I'll move to the question.

Senator Plett: I would like a recorded vote, chair.

The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: No.

The Chair: We have a request for a recorded vote.

Jessica Richardson, Clerk of the Committee:: The Honourable Senator Baker, P.C.?

Senator Baker: No.

Ms. Richardson: The Honourable Senator Batters?

Senator Batters: Yes.

[Translation]

Ms. Richardson: The Honourable Senator Boisvenu?

Senator Boisvenu: Yes.

[English]

Ms. Richardson: The Honourable Senator Boniface?

Senator Boniface: No.

[Translation]

Ms. Richardson: The Honourable Senator Dupuis?

Senator Dupuis: Against the amendment.

[English]

Ms. Richardson: The Honourable Senator Fraser?

Senator Fraser: No.

Ms. Richardson: The Honourable Senator Frum?

Senator Frum: Yes.

Ms. Richardson: The Honourable Senator Gold?

Senator Gold: No.

Ms. Richardson: The Honourable Senator Harder, P.C.?

Senator Harder: No.

[Translation]

Ms. Richardson: The Honourable Senator Joyal?

Senator Joyal: No.

[English]

Ms. Richardson: The Honourable Senator Omidvar?

Senator Omidvar: No.

Ms. Richardson: The Honourable Senator Plett?

Senator Plett: Yes.

[Translation]

Ms. Richardson: The Honourable Senator Pratte?

Senator Pratte: No.

[English]

Ms. Richardson: The Honourable Senator Sinclair?

Senator Sinclair: No.

Ms. Richardson: The Honourable Senator Unger?

Senator Unger: Yes.

Ms. Richardson: For, 5; against, 10.

The Chair: I declare the motion in amendment defeated.

Senator Mitchell: I'd like to make a point of order. Some may wonder why I'm not voting. It's because I'm not an official member of this committee.

The Chair: Shall clause 1 carry?