Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 5 -- Evidence
Ottawa, Friday, April 19, 1996
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-2, to amend the Canadian Human Rights Act (sexual orientation), met this day at 8:30 a.m. to give consideration to the bill.
Senator Sharon Carstairs (Chair) in the Chair.
[English]
The Chair: Honourable senators, we have received two communiques which I have asked be distributed. One is from the Canadian Bar Association whose representatives are not scheduled to meet with us today. The other is from the Canadian Conference of Catholic Bishops, which wrote to the Prime Minister with a copy to members of the committee. If you have not received copies of those communiques, additional copies are available.
Our first witnesses this morning are Mr. John Scratch and Mr. Stephen Sharzer from the Department of Justice. I understand they have a brief presentation, following which they be available for questions.
Mr. John Scratch, Senior General Counsel, Department of Justice: As you know, honourable senators, Bill S-2 would add sexual orientation expressly to the Canadian Human Rights Act as a prohibited ground of discrimination. The act prohibits discrimination on a number of listed grounds in two main areas - employment and the provision of goods and services.
The Canadian Human Rights Act covers federally regulated employers and service providers, including the federal government, federal Crown corporations, and private sector companies coming under federal jurisdiction. This is about 11 per cent of the work force in Canada. The balance falls under provincial jurisdiction. The kinds of employers and service providers which would be covered fall into a number of federally regulated areas, the key areas being transportation, banking and telecommunications.
I understand that, in the case of a private member's bill such as Bill S-2, the committee examining the bill will typically want the views of the Department of Justice or of a department which has jurisdiction in the relevant area on whether the bill is technically viable and whether it accomplishes its purpose.
Bill S-2 is quite brief. From the perspective of the Department of Justice, the amendments proposed by Bill S-2 would accomplish its purpose; that is, it would ensure that the Canadian Human Rights Act expressly prohibits discrimination on the basis of sexual orientation. The amendments would add sexual orientation to the list of grounds in the act on which discrimination is prohibited.
That is all I wish to say in my opening statement. We would be pleased to answer questions.
Senator Kinsella: Have you reviewed the testimony of your colleagues who appeared before this committee when it was examining Bill S-15?
Mr. Scratch: Yes. In fact, both of us were here during that examination.
Senator Kinsella: Is it fair for us to assume that the testimony given, mindful of the time lag, remains the same?
Mr. Scratch: Yes, it is. I think the focus of the testimony at that time was on the difference between Bill S-15 and Bill C-108, which were introduced into the Senate and the House of Commons by a previous government.
Senator Kinsella: Could you review the number of jurisdictions across Canada that have this particular prescribed ground of discrimination, sexual orientation, in their anti-discrimination statutes?
Mr. Scratch: There are eight jurisdictions. If you wish, I can give them to you and the dates upon which they enacted the provision.
Senator Kinsella: That would be helpful for the record.
Mr. Scratch: Quebec enacted it in 1977; Ontario in 1986; Manitoba and the Yukon in 1987; Nova Scotia in 1991; New Brunswick in 1992; British Columbia in 1992; and Saskatchewan in 1993.
Senator Kinsella: Is it not true that the Canadian Human Rights Act was one of the last human rights acts to be enacted in Canada?
Mr. Scratch: I believe that is accurate.
Senator Kinsella: This introduction of this type of legislation began in the Province of Ontario in 1965. Is it not true that it flows from or codifies the older Fair Employment Practices Act and the Fair Accommodation Practices Act?
Mr. Scratch: Yes, that is the case.
Senator Kinsella: Although we call them human rights acts across Canada, they are really anti-discrimination statutes.
Mr. Scratch: Yes.
Senator Kinsella: In your technical judgment, if this were a government bill and had received a certificate from the minister, as public bills must receive, would it be congruent with the Canadian Bill of Rights and the Charter of Rights and Freedoms?
Mr. Scratch: Yes, it would.
Senator Kinsella: Some of the excellent submissions presented to this committee have alluded to Canada's international obligations to promote the rights of the family as contained in the 1966 International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights, both of which grew out of the Universal Declaration of Human Rights which also recognizes the rights of the family as the cornerstone of society. Those instruments were open for ratification by countries in 1966. It was 1976 when, with the concurrence of every jurisdiction in Canada, the Privy Council took action to deposit the instrument of ratification. Is it your judgment that this amendment and the human rights statutes in the eight jurisdictions you mentioned are consistent with our international human rights obligations under the covenants?
Mr. Scratch: Yes.
Senator Lewis: Mr. Scratch, you have mentioned that the expression "sexual orientation" is in the provincial statutes of eight provinces going back to 1977. Have any problems arisen out of that expression insofar as interpretation is concerned?
Mr. Scratch: No. I do not believe there have. If you look at the decisions of courts and tribunals, and they have considered this term in a number of instances, it appears that they have a clear understanding of the term. Certainly the Supreme Court of Canada appeared to have no problem with the term itself when it recently found that sexual orientation was an unlisted or analogous ground in section 15 of the Charter.
Senator Milne: Gentlemen, I would like to pick your brains in advance of hearing another group who will come before us a little later, or at least they have submitted a brief to us, a group called "Focus on the Family." In their brief they state:
We ask how the definition of sexual orientation can be kept within the guidelines suggested by the Honourable Justice Minister Allan Rock? How can we be sure that the definition of sexual orientation will not be expanded to include other sexual preferences -
They mention paedophilia, and I will take them on myself on that. They go on to state:
- particularly in light of the fact that gays and lesbians themselves continue to modify this definition which, according to their own material, now includes gay men, lesbians, bisexuals, transsexuals, transgenderists and transvestites.
What sort of parameters are there presently within the law to counter some of the arguments that may arise later on?
Mr. Scratch: First, it is very important to keep in mind what the courts have said to date on this issue, and the very basic purpose of human rights legislation.
To date, the courts have interpreted the term to mean homosexuality, heterosexuality, and bisexuality. Courts and tribunals appear to be comfortable with that definition and comfortable in applying it.
Second and, I think, most important, you must remember that the basic human rights concept is to protect vulnerable groups. I cannot see a court extending the definition to include criminal activity or, in fact, to do something that would in any way lessen protection for a vulnerable group such as children. There is adequate protection right now when you remember, as I say, these two points.
Senator Milne: Thank you. I will suggest that they read your testimony.
[Translation]
Senator Nolin: Were you involved in the Vriend v. Attorney General of Alberta case?
Mr. Scratch: Yes.
Senator Nolin: What arguments did you make at the time? I imagine that the same ones will be used before the Supreme Court, if the case is brought before it.
[English]
Mr. Scratch: I do not believe that leave has been granted yet in the case. Certainly, if it is appealed, the Department of Justice will have to assess its position on it, but we do not have one right now.
Senator Nolin: What arguments have you raised before the appeal court in Alberta?
Mr. Scratch: We were not a party to that action.
The Chair: Thank you both for coming this morning and giving us some background on this proposed legislation.
Our next group of witnesses is from REAL Women of Canada. Senators, the brief of REAL Women has been received but, since it has not been translated into French, it cannot be distributed. It is available, however, for members if they wish to pick it up. It will be translated as soon as possible and distributed to members.
With us today are Ms Gwendolyn Landolt, Ms Sophie Joanou, and Ms Diane Watts who is now distributing the brief to members.
Senator Gigantès: Did you not say, Madam Chair, that the brief would not be distributed until it had been translated?
The Chair: It will not be distributed by us until it is translated, but that does not prevent the witnesses from making it available to you. It is a technical point.
Ms Gwendolyn Landolt, National Vice President, REAL Women of Canada: Thank you, Madam Chair, for this opportunity to speak to this issue. Since we were only advised of this hearing on Tuesday, the shortage of preparation time explains the delay in translation. The original version was simply sent directly to the clerk.
However, we are very pleased to address this crucial issue. Although some allege it is a matter of human rights, to many Canadians, this is a moral issue which transcends human rights. Human rights are determined by the universal standards set out in the UN Declaration of Human Rights and the UN decision on racial and political equality. Nowhere do those declarations include sexual orientation as a human right. Because we regard this as a very basic moral issue, we are here today to explain our deep concerns about this legislation.
One would assume at first glance that this issue is simple and straightforward. However, there are many unforeseen, long-range ramifications from the simple act of putting the words "sexual orientation" into the federal Human Rights Act.
Max Yalden of the Canadian Human Rights Commission says that, by putting the words "sexual orientation" into the Human Rights Act, the commission would therefore be allowed to adjudicate on marital status and spousal status and that this opens the door to include marital and spousal rights in "homosexual rights." Max Yalden has been given the responsibility of enforcing the federal Human Rights Act. We must then look very closely at his comments.
We do know that the term "sexual orientation" has provoked unexpected and unforeseen consequences when placed into provincial human rights acts. For example, in a recent decision in Ontario, the words "sexual orientation" have been interpreted to allow lesbians to adopt children. In another recent decision, May of 1995, the Court of Appeal of Ontario has again lowered the age for sex with children from 18 as set out in the Criminal Code. Madam Justice Rosalie Abella reduced that age to 14, even though this was specifically voted against in the committee hearings in February of 1986.
We know the term "sexual orientation" is not merely symbolic but has been picked up and used by the courts to impose their own personal ideology and interpretation. The courts would appear to be the last people who should be interpreting the meaning of "sexual orientation."
I would draw your attention to page 3 of our brief. In a recent decision by Chief Justice McClung of the Alberta Court of Appeal, he says:
... When judges legislate, their product is assented to by them alone. All of these formative [parliamentary] resources stand suspended when rights-restless judges pitchfork their courts into the uncertain waters of political debate.
We are suggesting that, by simply using the words "sexual orientation" in the your proposed amendment, you will, in fact, be using the courts, using their own ideology, in order to interpret legislation, and not doing so in accordance with what the people or the legislatures want or intended, and not in accordance with the views of the majority of Canadians.
If anyone disputes that marriage will not be in contention if you put sexual orientation into this legislation, I would draw to your attention that section 91.26 of the Constitution Act of 1967 puts marriage and divorce under federal jurisdiction.
One of the problems of the failure to define in the legislature, is that, by leaving it in the hands of the court, it will create enormous problems for society which no one intended and no one necessarily wanted, and certainly had not been voted on by the people of Canada.
I believe, as we state on page 7 of our brief, that the purposes of human rights legislation historically have always been applied to three criteria: economic, educational and cultural discrimination; immutable group characteristics; and political powerlessness.
In regard to the latter, certainly the very fact that we are debating this issue indicates that the homosexual community is not politically powerless.
As you will note in Appendix A, we refer to the economic, educational and cultural advantages that homosexuals now have in Canada and North America.
With regard to immutable group characteristics, I would draw to your attention that the only defining aspect of homosexuals and lesbians is their sexual practices. It is not in the same class as colour or gender. When you look at me, you know I am a woman, a white woman, but you cannot look at a homosexual or a lesbian and know anything about the fact that that person is, in fact, a homosexual. There are no identifying characteristics.
This was again pointed out recently by the Supreme Court of British Columbia, when Justice Kenneth Smith, in a case just handed down, said:
... the element that distinguishes them [homosexuals] from everyone else in society is their sexuality.
It is only their sexuality. That is precisely the difference. He confirmed that homosexuals and lesbians are not a true class in need of protection under the Human Rights Act because they are united only by their sexual practices which alone define and distinguish them from others.
I would also like to bring to your attention that to exclude sexual orientation from the Human Rights Act does not deprive homosexuals of one single constitutional right. To exclude sexual orientation from the Human Rights Act does not mean to discriminate against them for their sexual practices since they already share all the same fundamental rights of other Canadians and, in fact, as previously mentioned, they have more advantages, economically, educationally, politically and culturally, than most Canadians.
Homosexuals are not singled out for unfair treatment. In fact, they have singled themselves out for privileged treatment by aggressively pursuing special protected status to which they have demonstrably no valid claim.
In this regard, I believe we must address the issue of whether they are asking for special rights or asking for equal rights. This is one of our concerns. For example, it would appear that they are asking for special rights. You will notice that under clause 3 of Bill S-2, section 16 of the Act will provide that it is not discriminatory to adopt a special program, plan or arrangement on behalf of certain categories of individuals, including those based on sexual orientation.
We submit that this will provide special rights for homosexuals and lesbians.
For those who would argue otherwise, I would invite you to address Appendix B of our brief, an application form by the University of Ottawa which asks its applicants for law school whether they want to identify themselves as lesbians or homosexuals and, if so, they will be given preferential treatment.
If sexual orientation is included in the Human Rights Act, nearly 50 federal statutes will have to be amended in order to fall within the meaning of this amendment. Included in this will be the Employment Equity Act, which was just passed last year. It means that homosexuals will then get special privileges, and that special advantages in employment equity and in law schools will become compulsory.
I might say that when I went to law school, which was a very long time ago, in the 1950s, there were 4 women and 110 men in my class. I went to law school; I was accepted simply on merit; and no one asked about my gender. Societal mores may have indicated that I should not go to law school, but there was nothing to impede my doing so. I had the marks, and I was accepted. There were homosexuals in my law class back in the 1950s. There were people of colour and native people, in my law class, and all of us were admitted on only one basis: that we had the marks and we had proven ourselves to be competent. That should be the criterion for any admission, whether it be employment, law schools, universities, or whatever. It should be based on the merit principle, not on one's sexual practices or any other identifying characteristic.
It appears to us that this bill has been introduced and is being debated somewhat in haste. We are deeply concerned that there has only three hours have been set aside to debate a bill which will have long-range ramifications for society. As I say, 50 federal statutes would have to be amended in order to comply with this amendment. One cannot change 50 statutes in a matter of three hours without due consideration and very limited public consultation.
This is a very sensitive area, especially in the Senate, since the Senate is appointed and is not representative of any group of people. It does not represent any grass-roots organization. Senators are appointed by political parties. It is a sensitive point that this bill would be pushed through the Senate without due consideration of the enormous ramifications it will have on society.
Our recommendation, therefore, is that the Senate Standing Committee on Legal and Constitutional Affairs recommend either that Bill S-2 be withdrawn because of unforeseen social and political implications or, alternatively, that all further consideration of this bill be delayed until such time as extensive and thorough public consultation can be held on this very troubling and divisive bill.
[Translation]
Senator Nolin: You stated that the majority of Canadians share your thinking. Is there some poll that supports that statement? What are you basing it on?
[English]
Ms Landolt: I would like to base it on two recent polls. I bring to your attention the Gallup poll of May of 1992 which indicated that 61 per cent of Canadians specifically oppose legal recognition of homosexual relationships. In May of 1994, an Angus Reid poll indicated that 67 per cent of Canadians oppose the extension of certain benefits to same-sex couples which will be the inevitable result of putting sexual orientation into the Act. Surely Canadians, by these polls, have indicated their resistance to this.
In this regard, I would add that no one wants unjust discrimination in Canada. The question is: Has there been unjust discrimination because people, due to their sexual practices, have not had social and legal recognition in the law, or are we giving social and legal recognition, unjust recognition, to those who are in a particular type of sexual relationship? That is the issue with which you are dealing.
Canadians, by the most recent polls, indicate what they think of this issue.
[Translation]
Senator Nolin: I would like to know the questions underlying these numbers. You are comparing apples and oranges. That isn't the purpose of this morning's meeting. If you could give us those numbers, it would be very useful.
Second, you are referring to a document you have appended to your brief, an information form from the University of Ottawa. Could you repeat your argument to the effect that this would enable gay or lesbian students to have special rights or privileges or to be treated differently from other students?
[English]
Ms Landolt: I would refer you to Appendix B which is an example of the University of Ottawa law school application. You will note that they have a special box marked, "Lesbian, gay man or bisexual." In other words, they will be given preferential treatment because of their sexual practices.
Senator Nolin: Do you use that argument because they are asking for that information?
Ms Landolt: The Employment Equity Act requires that there be employment equity, which means a quota system. The bottom line of employment equity is that there will be a quota system based on race, culture, and now we would include sexual practices. That is the problem.
The best way to assess whether someone may become a competent lawyer is to consider their academic merit, not their sexual practices. That is the problem. You will also have to amend 50 other statutes in Canada. As examples, the Immigration Act and the Criminal Code would require to be amended.
[Translation]
Senator Nolin: We are talking about the University of Ottawa's application form. You are drawing all sorts of conclusions from this form. These are students. This isn't a job application. It is an application form for Ottawa University's Faculty of Law. It is clearly said that the information supplied will only be used to accommodate the students, in accordance with their personal preferences, for residence purposes. That is what is written at the bottom of the form. I have no problem listening to your arguments. But when you base your arguments on a document that doesn't support the conclusion they come to, then I don't understand.
[English]
Ms Landolt: Employment equity applies to goods and to services. A quota system will be applied in respect of anyone applying to a university, whether the application be for employment or for services. Employment equity is included in the categories listed in the federal Human Rights Act. I am giving you an example of what is presently contained in our own legislation. A quota system would be applied in our whole system. That is a fact. If you read the Employment Equity Act and the Canadian Human Rights Act, the services offered by universities would be included.
[Translation]
Senator Nolin: Have you, in support of your arguments, called upon people from the University of Ottawa who could perhaps come and demonstrate to us that by virtue of this, they will protect, reserve or guarantee a minimum number of spots for gay or lesbian students?
[English]
Ms Landolt: Indeed, we have raised this issue.
[Translation]
Senator Nolin: Do you have a witness this morning who could say to us: the argument put forward by the witness from REAL Women is founded because there are spots that we reserve for gay and lesbian students and this is a protection measure that we have in place. Do you have such a witness or such information for us?
[English]
Ms Landolt: We have documented material, namely, our correspondence with the Minister of Education and with the particular dean. We can only go on the factual documentation. At a subsequent meeting I could certainly call someone who would testify to the fact that he had been discriminated against although he had the marks. I am aware of such people. People have said exactly that to us. Would you care to arrange a meeting so that I can produce this person?
[Translation]
Senator Nolin: We do not understand each other. The argument that you gave at the outset is the following: you state that the University of Ottawa will protect gays and lesbians, that it will give them an undue advantage. Look at the form. What is being asked for is the sexual orientation of some students but not of others. You are stating that by virtue of this, privileges are being established, and you say that you oppose that. As far as the creation of privileges is concerned, I agree with you, but this form cannot be used in support of your argument, unless you are able to produce someone from the University of Ottawa who could state: this woman is right; we decided to grant preferential treatment, special treatment to gays and lesbians.
[English]
Ms Landolt: If you wish to have a meeting with me so that I can produce a witness, I would be happy to do that. However, that type of testimony is hardly what I would bring this morning. People in these preferred categories are being admitted on a quota basis. That is an actual fact. Our correspondence, as well as the reports of individuals who been unable to attain entrance into Ottawa University law school, corroborate that fact.
Ms Sophie Joanou, Member of the National Board, REAL Women of Canada: Why is this category included?
Senator Nolin: I think that will be clear if you read the bottom line.
Ms Landolt: We have read the bottom line. It says, "preferential treatment."
Senator Nolin: It is not preferential treatment. It is to ensure that they will suit their students' preference.
[Translation]
It is more of a comment. You are making an assertion. You are unable to support it this morning. This is why I am asking you to produce a witness. Give us solid arguments to the effect that preferential treatment is being granted to some, but don't deduce things from a form that doesn't support your argument.
[English]
Ms Landolt: With respect, senator, perhaps you could provide proof as to why this will not prevent a quota system. I can provide written documentation to support my argument. I would be pleased to hear any witnesses you may wish to call who would tell me why that will not prevent special privileges for homosexuals and lesbians. Then we will be equal.
Senator Kinsella: I should like to focus on the Canadian Human Rights Act which, in section 14 states that it is a discriminatory practice, in the provision of goods, services or facilities, to harass an individual on a prohibited ground.
Take the example of a person going to the Air Canada counter to buy an airplane ticket for the flight to Calgary. Clearly, that would come under federal jurisdiction whereas the matter concerning the University of Ottawa would come under provincial jurisdiction. If the vendor of the airplane ticket perceives that, in his or her judgment, the client is homosexual, is it your position that that person is rightfully discriminated against in the denial of the purchase of that airplane ticket?
Ms Landolt: Senator Kinsella, that is the whole thrust of our argument. How would the seller know or care whether the person is homosexual unless that person says, "I am a homosexual" or, "I am a lesbian"? The only way they can suffer discrimination is if they say, "I am a homosexual. I demand it." No one cares; they sell the ticket.
There have been no examples of such discrimination. If this is included in the human rights code, it will lay the groundwork for a homosexual or lesbian pair to apply for lower rates based on marital status, and then to challenge because of discrimination based on sexual orientation. There is a vast difference between people saying, "I want all the marital rights which will inevitably lead from this federal human rights amendment, if it goes through," and someone saying, "I want to buy a ticket." That is preposterous. No one has ever been denied a ticket because someone thought they were homosexual. That is simply not realistic.
Senator Kinsella: Let us take another example. Section 7 of the Canadian Human Rights Act says that it is a discriminatory practice in the field of employment for an employer to discriminate against an employee in terms of conditions of employment, salary, promotion, et cetera, because of sexual orientation. Is it your position that it is proper for the employer to discriminate against members of the 11 per cent of the work force in Canada which falls under federal jurisdiction on the grounds of sexual orientation?
You drew our attention to the excellent book by the late Walter Tarnopolsky, Discrimination Law in Canada. You will recall that, in his book, Tarnopolsky did an examination of the proscribed grounds of discrimination in our anti-discrimination laws. He rightfully points out that, if someone were discriminated against in employment because the employer did not like Jamaicans, for example, or did not like black Canadians, and refused to hire a person, the victim of that discrimination must have a ground upon which to file the complaint and to defend his or her right to work and to be free from that discrimination. They may say, "I was discriminated against on the basis of race." Tarnopolsky points out that whether the person actually is black or was from Jamaica is irrelevant. It is the perception that is relevant. The discrimination was made by the employer on what they had perceived.
To go back to my example, it is irrelevant whether the person wears a badge which says, "I am gay" or "I am not gay." If the ticket vendor or the employer makes a judgment on that ground, then, as in all the other grounds, it would constitute discrimination.
Would you agree that the decision not to sell the service or not to promote on the basis of sexual orientation, accepting that whether or not the person is homosexual or heterosexual is irrelevant, is wrong?
Ms Landolt: Going back to your example about employment, as we know, whether a person is homosexual or not is irrelevant in most fields. Many federal employees are homosexuals and lesbians. No one knows how many and no one cares, except in the military, the RCMP, and other such areas where it may be relevant depending upon the circumstances.
Again, there has been no example of this. The point is that they want spousal and family benefits, which I submit will be brought in by this amendment under the federal Human Rights Act. No one is suggesting that, apart from in the RCMP and the military, there has ever been any discrimination among the 11 per cent of Canadians employed in the federal civil service.
There has never been a case of a homosexual complaining about discrimination in the federal service of Canada because they are treated the same as everyone else and have the same rights as everyone else. However, with this legislation we are giving them special rights, not equal rights. They are the same as everyone else on the street.
Senator Kinsella: Have you read the annual reports of the past six or seven years of those provinces and territories which have this proscribed ground of discrimination in their human rights legislation? Do you have a sense of the number of complaints filed on the grounds of sexual orientation that have been dealt with by human rights commissions in those eight jurisdictions?
Ms Landolt: I have read much of the case law on that. In every case they have used sexual orientation in order to expand their rights. Using adoption as an example, there was recently a decision in Ontario on a case in which sexual orientation was used to get family rights. That has been the thrust. By the use of the words "sexual orientation" they are attempting to expand rights in the provincial jurisdictions. In the federal jurisdiction they want to expand marital benefits. The point is not discrimination in the workplace. I have seen no cases along that line.
Senator Kinsella: The annual reports of the human rights commissions in those eight jurisdictions list the number of complaints they have received on this ground. They are quite numerous and fall into all areas. It seems to me that establishes that in those jurisdictions at least they are apprehending large numbers of cases of discrimination on this ground.
Ms Landolt: They are receiving complaints, but they have not been adjudicated. They may have been settled, but we have never heard a word about them. They may receive complaints since anyone can complain. Human rights commissions are notorious for accepting complaints of any type, even if they do not have jurisdiction. The federal Human Rights Commission consistently accepts complaints which they have no jurisdiction to hear. However, simply because a complaint has been accepted does not mean that an offence has been committed under provincial or federal legislation.
Senator Kinsella: On another topic, I thank you for drawing our attention to the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, to which Canada is party.
You are absolutely correct that the social covenant states that parties to the covenant recognize that the widest possible protection and assistance should be accorded to the family which is the natural and fundamental unit of society. Also, the International Covenant on Civil and Political Rights states that the family is the natural and fundamental group of society and is entitled to protection by society and the state.
There is no question that the right of the family is recognized in the international community and domestically. I would draw your attention, however, to Article II of the International Covenant on Economic, Social and Cultural Rights and Article II of the International Covenant on Civil and Political Rights. Both of those articles, somewhat like section 15 of our Charter, state that the parties undertake to respect and ensure to all individuals the rights recognized in the present covenant without distinction of any kind such as race, religion, or other status.
In other words, the international human rights covenant recognizes that these rights must be enjoyed without discrimination on any ground - and they give examples of some grounds - or other status. What we call, as you know, the ejustdem generis rule, which is the same kind of categories of non- discrimination, apply here.
If I heard you correctly, you said that the international human rights covenant recognizes the right of the family, something with which I agree, but that it does not recognize the right of people to be free from discrimination because of sexual orientation. I suggest that the other status and the exemplary nature of the list is inclusive thereof.
Ms Landolt: I would make two comments. First, the natural family is protected under the Universal Declaration of Human Rights. If you amend the federal Human Rights Act by including sexual orientation, you will then not be protecting the traditional natural family which is the one that produces children for future generations. The homosexual and lesbian relationship, by its very nature, cannot do so. Therefore, you will be contravening the provisions of the Universal Declaration of Human Rights.
Second, stopping discrimination generally means stopping unjust discrimination. It does not mean that you can pass legislation saying that brothers and sisters may have sexual relations and that this should be recognized; or that a father and a daughter may have sexual relations. You must use what is generally accepted as a result of a general consensus in society. There would not appear to be anything in any legislation that would give this protection for the homosexual relationship to make it a family, which we suggest contravenes the Universal Declaration of Human Rights.
It is not such a broad statement that it means "all discrimination of all types." It simply means the generally accepted kind of discrimination, which involves race, creed, religion and analogous types. It does not mean brothers and sisters who engage in incest or people with red hair, for example. You simply do not do that. There are certain standard human rights protections, as I mentioned in my brief, which are universal. However, they do not include this.
Senator Kinsella: Ms Landolt, are you aware that at the United Nations Human Rights Committee meeting held in Geneva in March of 1994 sexual orientation was found to be inclusive within the two international covenants?
Ms Landolt: That is not, however, stated in any UN document. Certainly, Canada has been trying to push it. I attended both the Beijing conference and the Cairo conference. I have seen Canada trying to do it. I have seen representatives of other nations soundly reject any such proposal.
Senator Milne: I am concerned about this supplementary information form from the University of Ottawa which you have included in your brief. I know it has been clearly pointed out to you that education falls clearly under the jurisdiction of the province of Ontario. I have not read the Ontario Human Rights Code. However, do you know if is there anything in it which says that there shall be preferential treatment?
Ms Landolt: Yes. The Ontario Human Rights Code states that there should be no discrimination on the basis of sexual orientation. Therefore, it has been interpreted as to include giving special advantages to these people on the alleged basis that they have suffered discrimination and that they should therefore be brought forward.
Senator Milne: Who is "they"?
Ms Landolt: The University of Ottawa.
This form was given to you as an example, senator. When you have employment equity provisions in federal statutes, you also have services. That is exactly the same. You will have the same problems. You will have a quota system. I am well aware that this matter is provincial, as dealt with by section 92 of the BNA Act. However, it is an example of what will happen.
What we are suggesting to you is that one needs to have merit, marks, ability and competence. What does one's sexual practices have to do with one's ability to be a lawyer or a nurse, for example? When there are federal employment equity provisions, it will in fact be a quota system. What you will get is a quota for homosexuals and lesbians.
Senator Milne: Madam Chair, in the interests of fairness, I wish to read into the record what it states on the bottom of this form from the University of Ottawa.
The information provided will be considered in a matter consistent with the Ontario Human Rights Code. After a student has been admitted, the information will not be used for any purpose other than arranging reasonable accommodation or the implementation of the Education Equity Program.
I think that pretty well covers it.
Ms Landolt: That is exactly our point. What we are saying is that they are giving preference by getting into this equity program. I would ask you to turn the page and look at what is says under the heading "Education Equity". That, indeed, is the problem. They are getting preferential treatment.
Since there is federal employment legislation and a federal Human Rights Act which includes services, you will therefore see that we are saying that you are asking for a quota system. This is an example of what will be the result of this amendment.
In fact, I suggest and submit to you again that what you have here are apparently simple words with an apparently simple solution to an apparent discrimination. You will have anything but simple solutions when we know that this will lead to all sorts of ramifications to 50 statutes in Canada, including the Criminal Code. We must look at this matter realistically.
Senator Milne: Ms Landolt, this leads me back into something else. I am a heterosexual female, a wife and a mother, with an increasing tribe of grandchildren. I do not feel in any way whatsoever that my family or any other family in Canada is threatened by this bill. Why do you feel so threatened by it?
Ms Landolt: I am a wife and a mother, too. I do not have grandchildren; however, I hope they will come in due course. It does not make any difference what you or I feel as wives and mothers. I simply have to look objectively as a lawyer to see what has happened. When you put sexual orientation into the legislation, it will result in marital and sexual benefits. There will be a threat to the natural family for numerous reasons. If you would like me to go down the list, I can do so.
Senator Milne: No, I certainly would not like you to go down the list. I would just point out that marital benefits are not included in this bill whatsoever.
Ms Landolt: I wish that were true. We know what will happen, however, if you do not define "sexual orientation." The courts, which are totally unsuited to do so, will strike this down and include marital relations and spousal benefits.
Senator Gigantès: The form from the University of Ottawa is interpreted by you in one way, but there are other ways to interpret it. For instance, when I was a young university student, I would have felt that it would have been a terrible discrimination against me, being a fervent heterosexual, to be put among homosexuals. Perhaps this bill is for the protection of fervent young heterosexuals.
Ms Landolt: That appears to be your problem. I never had any problem at all when I attended law school, and I had homosexual friends who caused me no problems.
Senator Gigantès: I have on occasion in the past, much to my chagrin - and I usually responded violently - been harassed by a homosexual. Segregating a young heterosexual from homosexuals might avoid such situations.
Ms Landolt: I have been harassed by men. Should we segregate men too? It would save a lot of harassment if no men were around.
Senator Gigantès: Personally, I have never harassed a woman.
Ms Landolt: I am glad to hear that.
The Chair: Let us concentrate on the subject-matter of this particular legislation, please.
Senator Gigantès: In terms of logic, your reasoning will make poor Aristotle spin in his grave.
Ms Landolt: I think Aristotle is clearly logical. He would say, "Thank heavens someone is using common sense and looking at this issue rationally, not emotionally." Legislators should look at this issue responsibly, not emotionally by catering to special interest groups.
Senator Gigantès: Let us spare this committee from a debate on Aristotle. I have my doctorate in Aristotle; you only have law.
On another point, you said that homosexual couples threaten the family.
Ms Landolt: Yes, the natural family.
Senator Gigantès: Because they do not produce children.
Ms Landolt: Not at all. That is not what I said. The purpose of the natural family is to create the next generation; because of that, they are given special benefits and recognition to encourage the birth of children. Homosexuals and lesbians, by their very relationship, cannot make that benefit or that contribution to society. Therefore, they should not get special recognition. The heterosexual, traditional family is necessary for society; because of that, they get special benefits. Why would you give special benefits to people who cannot make that enormous, all-important contribution to society?
There is little money to go around today. In many cases, traditional families are hard pressed to keep food on the table. Why would we distribute to people who cannot make that contribution? This inclusion gives social and legal recognition and puts on the same plane people who make this tremendous contribution which has, historically, been necessary.
Senator Gigantès: How about a couple that, after they are married, turns out to be sterile on both sides?
Ms Landolt: That is irrelevant.
Senator Gigantès: They are a man and a woman. Should they receive spousal rights?
Ms Landolt: The purpose of the legislation is to encourage the birth of children and to raise children. It is irrelevant if a couple chooses not to have children or cannot have them. That is not the social policy we have in mind.
Senator Gigantès: If it is irrelevant, why do you mind homosexual couples having children?
Ms Landolt: The purpose, senator, is to encourage the birth of the next generation and raise the next generation. That is the purpose.
Senator Gigantès: If that is the purpose, you should deny those benefits to legally married heterosexual couples who are sterile.
Ms Landolt: That is why you want to limit it to people who can create the next generation.
Senator Gigantès: Therefore, sterile people who marry should not have those benefits.
Ms Landolt: Senator Gigantès, I hope you are not being deliberately obtuse. I trust this is just an aberration.
Senator Gigantès: I am not being obtuse. You are being illogical.
Ms Landolt: Senator Gigantès, the social policy of the legislation is to encourage the birth of the next generation. If a couple chooses not to or cannot have children, they still have the capacity to have children. That is their business. Homosexual couples cannot do so by the very nature of their biological problems. Therefore, it is not within social policy to distribute marital benefits.
Homosexual couples would be put on the same plane of people who are making this enormous sacrifice to future generations by saying their relationship is equal to those who are making this tremendous contribution to society.
Senator Doyle: With respect to the discussion which so aroused Senator Gigantès surrounding the application for the University of Ottawa, we have been reassured that nothing was meant other than a question of arranging suitable accommodation. I wonder what we would have said if you had been asked to mention whether or not you were a black so suitable accommodation could be arranged?
The Chair: Interestingly enough, Senator Doyle, the question is also asked: Are you a cultural, racial or linguistic minority person? This is a self-identification form.
Senator Doyle: Since I had not read that, I would include that in my comments. I find myself seeing perhaps more clearly the reason for the bill that has been proposed.
Senator Nolin: It should be mentioned that the specific form says "optional categories." Applicants are under no obligation to answer these questions.
Senator Bryden: Whether I agree or disagree with the positions you presented this morning, I appreciate the courage you have shown.
I should remind honourable senators that a number of the views and emotional concerns reflected by the three witnesses here are heart-felt views by a large number of ordinary Canadians. I would not want these three witnesses to leave thinking that somehow they had been bested either by logic or law.
I would express my appreciation for your appearance here today and attempting to represent the views of a large number of ordinary Canadians.
Ms Landolt: I am glad you raised that point. This is the second time within the past year that our views have been attacked. We are Canadians citizens and we represent a large segment of the Canadian population. We would like to think that the appointed members of the Senate would respect the dignity and views of other individuals. I am grateful that you have finally said what has long been overdue. These are emotional issues.
The Chair: I wish to thank all three of you for presenting your position to the best of your ability. It was extremely well presented.
Honourable senators, our next group of witnesses represents the Professional Institute of the Public Service of Canada. Mr. Steve Hindle is the President of the association; Mr. Stuart Hall is the Chair of the Subcommittee on Sexual Orientation; and Ms Hélène Paris is the Research Officer.
Mr. Steve Hindle, President, Professional Institute of the Public Service of Canada: Honourable senators, before we begin, I should like to thank you for giving the professional institute the opportunity to speak on this important issue on behalf of our members.
I would like to introduce Stuart Hall, chair of our subcommittee on sexual orientation, and Hélène Paris, research officer in staff resource for the subcommittee. Together they prepared this brief.
Inclusion of sexual orientation as a prohibited ground of discrimination in the Canadian Human Rights Act is long overdue. This amendment has been requested by the Canadian Human Rights Commission, recommended many times by parliamentary committees, and promised during the last decade by successive federal governments. In fact, seven ministers of justice since 1985 have promised to amend the act to include sexual orientation but have failed to deliver on their promise.
Improvements in the protection of Canadians from discrimination on the basis of sexual orientation have therefore not been the result of legislative reform but the efforts of our judicial courts.
The institute hopes that Parliament will help to end discrimination towards gays, lesbians and bisexuals by granting them equal recognition before and under the law as well as the right to equal protection and equal benefit of the law. We believe that our brief will help you make a right and fair decision.
The Professional Institute of the Public Service of Canada was founded in 1920 to protect the interests of scientific and professional public employees. One of the main goals of the institute is to secure our members' rights as found in contracts, in statutes, in common law and in customs. The institute seeks to improve the working conditions of all its members either through collective or individual representation.
The institute recognizes that a significant minority of its membership is composed of gay, lesbian and bisexual people. The institute supports a non-discriminatory definition of "common-law spouse" whenever it has the effect of denying benefits on the basis of sexual orientation.
In 1990, the institute successfully negotiated the removal of the words "of the opposite sex" from the definition of "common-law spouse" in the collective agreement of one of its bargaining units, the Senate of Canada Legislative Clerks. This landmark achievement allows for the provision of spousal benefits such as family-related and bereavement leave to employees in same-sex relationships.
I wish to point out that Appendix A in our brief contains a list of professional institute actions in support of its gay, lesbian and bisexual members. During our 1993 annual general meeting, delegates strongly adopted and reiterated their support for resolutions dealing with employment equity, zero tolerance for discrimination, and for equal benefits for gay and lesbian couples.
The 1993 resolution on equal benefits for lesbian and gay partners empowers us to make representations like this one. The professional institute has supported and continues to support its members in the presentation of grievances due to discrimination on the basis of sexual orientation. The Public Service Staff Relations Board recently heard a grievance involving the denial of bereavement leave to an institute member upon the death of his same-sex spouse. An excerpt from this decision is included in Appendix B of our brief.
The reasons given by the adjudicator for granting the grievance clearly explain the relation between the Canadian Human Rights Act and collective agreements.
In rendering her decision, the adjudicator explained that, as an adjudicator, her function was to apply the law of the land to relevant provisions of the collective agreement and to determine whether the provisions - in this case, the definition of "common-law spouse" - was in accordance with the Canadian Human Rights Act and the case law.
The adjudicator summarized her reasons for granting the grievance as follows:
Since it is my duty as an adjudicator to apply the law of the land and the human rights legislation is paramount over inconsistent legislative provisions, and certainly over inconsistent provisions of the collective agreement, I will give no effect to the words "of the opposite sex" found in the definition of "common-law spouse".
In this case, the adjudicator not only found that the definition of "common-law spouse" in the collective agreement was contrary to the Canadian Human Rights Act and to the case law, but also to another article in the collective agreement. Article 44 of the agreement provides that there shall be no discrimination practised with respect to an employee by reason of sexual orientation.
The sexual orientation amendment to the Canadian Human Rights Act would facilitate the negotiation of non-discriminatory definition of spouse in all of our collective agreements. Grievances such as this one could be avoided in the future.
The other important point raised by the adjudicator was the paramountcy of the Canadian Human Rights Act over federal legislation. For instance, the Supreme Court of Canada has recognized that human rights legislation will prevail when legislation is silent on a point or is in conflict with human rights legislation. Similarly, when legislation is found to be discriminatory, it is rendered inoperative. Therefore, an amendment to the Canadian Human Rights Act to include sexual orientation as a prohibited ground of discrimination would ensure that federal government legislation, policies and directives are non-discriminatory. For example, without legislative protection nothing prevents the federal government from abolishing the directive it issued in 1995 extending work-related leaves to its gay, lesbian and bisexual employees.
Canadians should know clearly what is and what is not the law by reading it and not by reference to court decisions. An amendment granting gays, lesbians, and bisexuals, equal rights under the Canadian Human Rights Act would provide clear guidelines to the courts and prevent contrary rulings such as the February 1996 ruling from the Alberta Court of Appeal in Vriend v. Alberta and from the Ontario Court of Appeal in Haig and Birch v. Canada.
The sexual orientation amendment would also bring the act into greater harmony with the Canadian Charter of Rights and Freedoms. Last year, in Egan-Nesbit v. Canada, the Supreme Court of Canada found that sexual orientation must be read into the Canadian Charter of Rights and Freedoms as a ground of discrimination and that the refusal to recognize same-sex relationships was discriminatory under section 15 of the Charter.
However, the court decided to allow a certain piece of legislation, the Old Age Security Act, to stand because this piece of legislation can be justified since the government is entitled to take an incremental approach to bringing its laws into conformity with the charter.
It is clear by this decision from the highest court in the land that Parliament has the responsibility of bringing its laws into conformity with the Charter to ensure equality for all Canadians including gays, lesbians and bisexuals. It also means that every Canadian law that fails to recognize same-sex relationships is discriminatory and is subject to legal challenge.
The question remains whether Parliament will finally recognize the rights of gays, lesbians and bisexuals to equality or continue to pour millions of dollars of taxpayers' money into defending unjust laws.
Parliament will either do the right thing and eliminate all discrimination on the basis of sexual orientation, or courts will continue to strike down discriminatory legislation on a case-by-case basis.
However, the latter option would occur at great cost to governments, to businesses, to Human Rights Commissions, to gays, to lesbians, to bisexuals, and to organizations such as ours defending equal rights for gays, lesbians and bisexuals.
The amendment to include "sexual orientation" would send the strong signal that Canadian society does not tolerate discrimination against a category of people.
Canadian society strives to give deserved recognition to all its contributing components. We pride ourselves as being members of a tolerant and fair nation, and yet personal beliefs act as justification for discrimination against others. This is not an endorsement of a particular lifestyle but rather affording legal protection to all Canadians without discrimination.
In 1993, at the United Nations World Conference on Human Rights, Canada advocated international protection for gays, lesbians and bisexuals. In fact, Canada provides refugee status and asylum to people who are persecuted because they are perceived to be gay, lesbian or bisexual.
Citizenship and Immigration Canada has instructed missions abroad to consider applications for same-sex sponsorship on their merits and, where there is evidence that a stable relationship exists, to issue a visa on humanitarian and compassionate grounds.
However, Canada does not provide gays, lesbians and bisexuals in its own country the same rights as heterosexuals. By omitting to ban discrimination on the basis of sexual orientation, Canada sends the message that the country has two measures - one for its actions abroad and another for its own citizens.
Last year, the Liberal government amended the Criminal Code to protect the rights of people regardless of their sexual orientation. Sexual orientation will soon be recognized as a factor to be considered in sentencing for hate crimes. A promise was made in the Throne Speech in 1994 to amend the Canadian Human Rights Act to extend it to sexual orientation. The justice minister promised the amendment several times.
Most recently, Prime Minister Jean Chrétien promised to introduce legislation to ban discrimination on the basis of sexual orientation before the next election. It is time for Parliament to own up to its promises and amend the Canadian Human Rights Act to cover sexual orientation.
The professional institute strongly supports Bill S-2 as drafted. The amendment to the Canadian Human Rights Act will not give our gay, lesbian, and bisexual members special privileges, but it will give them legislated protection from discrimination on the basis of sexual orientation, and provide them with the same access to redress as other members of Canadian society. The amendment merely acknowledges that gays, lesbians, and bisexuals do not deserve to be harassed, discriminated against, or deprived of job-related benefits because of their sexual orientation. It is an issue of recognition of fairness, of human rights, and of equal rights.
Senator Beaudoin: The legal situation is that we have a decision of the Court of Appeal of Ontario in the Haig case and of the Supreme Court of Canada in the Egan case, if I am not mistaken, and there is one dissenting opinion from the Court of Appeal in Alberta.
I am, myself, much in favour of the Canadian Charter of Rights and Freedoms, and when the courts in my opinion are right, we should, as parliamentarians, follow the decisions of the Supreme Court of Canada, unless we very strongly disagree with those decisions.
I agree that there is a form of discrimination here from a purely legal point of view, and that we should amend our legislation so as to comply with the decisions of the Supreme Court of Canada in that field.
The purpose of your presentation is to outline the philosophy that you want to apply in this country. Some people say we should always leave the last word to the Parliament of Canada. However, we have a charter in our constitution, and there are many, many charters in the provincial field and the federal field, so I think that, unless we have very good reasons to strongly disagree with the Supreme Court of Canada decision, we should comply with it. Is that your philosophy?
Mr. Hindle: I would have to agree. A number of the courts are busy interpreting legislation and also the application of the charter to that legislation. I think the message is quite clear from the Supreme Court of Canada that the Charter of Rights requires that sexual orientation be considered as a prohibited ground of discrimination. The ball is back in Parliament's court; it is now time to amend the legislation to remove discriminatory provisions.
Senator Beaudoin: If we do not do that, some other courts may disagree, and the whole judicial battle will continue.
Mr. Hindle: That is right, along with all the costs that will entail.
Senator Beaudoin: Parliament is accepting its responsibility. I am speaking purely from a legal point of view here. I know people may agree or disagree, but the fact is that we are under the rule of law in this country, and it is about time that we give effect to a decision that seems to be based on rather acceptable principles in a free and democratic society.
Mr. Hindle: You have our whole-hearted agreement.
Senator Kinsella: Would the witnesses help us focus our attention on the issue of job-related benefits? This issue arises from time to time, but then we somehow seem to move very quickly away from a careful reflection and attempt to discern what we mean by "benefits" and we get into the Marriage Act and all kinds of other issues. Is it the view of the institute that the benefits an employee receives constitute a fruit of his or her labour? Is it considered to be an alternative form of salary?
Mr. Hindle: The benefits generally in question provide things such as bereavement leave. There is a time of bereavement if your spouse dies where you need to adjust to living alone, and it is to the benefit of the employer to give the employee time away from work in order to get the personal effects together, in order to get his or her life back together, if you will. Irrespective of the sex of the spouse who dies, the person who is affected is the employee who still has to work for the employer. It is a benefit for the employee but it also provides the employer an opportunity to show that it has some feeling and it cares about the people who work for it in that it will provide a suitable time for adjustment.
Senator Kinsella: To follow on the example you have given as to bereavement leave, when a worker, who has the misfortune of experiencing the grief associated with the death of someone close to him, is granted bereavement leave, is that worker's income maintained during that period of leave?
Mr. Hindle: Yes.
Senator Kinsella: Is it your testimony that grief knows no racial barrier, no gender barrier, or no barrier because of sexual orientation?
Mr. Hindle: It is totally dependent on the relationship between the two people, the one who has died and the one who remains. I do not think that there is any connection, that a heterosexual experiences more grief or less grief than someone who is gay.
Senator Kinsella: Let us take another example of a work-related benefit. One works so many hours a week, so many years, and contributes to the group insurance plan, if there is one in place. Are there any actuarial data from the insurance industry that would substantiate that a group benefit ought not to apply because of sexual orientation?
Mr. Hindle: Not that I am aware of.
Senator Kinsella: Years ago, when we first introduced issues things such as race or ethnic origin into the human rights statutes in this country - in fact, I recall when we brought in gender into the Human Rights Act - there was great concern that prohibiting discrimination in employment because of sex would make inoperable group insurance plans or pension plans, whether they were money-purchase plans or whether they were defined-benefit plans. Do you recall the opposition to include sexual orientation as a proscribed ground of discrimination?
Mr. Hindle: Not that specifically, but I believe what you are referring to could also be extended to the inclusion of common-law spouse in the definition of "spouse." People were afraid that it would bankrupt plans because too many more people would be added to them. However, I believe experience has shown that has not happened.
Senator Kinsella: In your view, who owns the benefits?
Mr. Hindle: The benefits are provided in some cases on a cost-sharing basis by the employer and the employees. The benefits belong to the employees.
The Chair: With us today from EGALE are Mr. John W. Fisher, Executive Director; and Mr. Philip MacAdam, Barrister and Solicitor and Member of the EGALE.
Mr. Fisher, I understand that your presentation will be split between yourself and Mr. MacAdam this morning.
Mr. John W. Fisher, Executive Director, EGALE: We will share the presentation. I will make some introductory remarks. Mr. MacAdam is the barrister who argued the Haig and Birch v. Canada case before the Ontario Court of Appeal. This was the case where the courts first added "sexual orientation" to the Canadian Human Rights Act. Mr. MacAdam is very familiar with the legal implications of the court's decisions and the current status of the law as it applies to discrimination against lesbians, gays and bisexuals.
There has been a great deal of misinformation about what this bill involves and what it does not involve. I should like to identify the subject-matter and the scope of the bill as we see it, and also clear up some misconceptions surrounding the bill before us today.
This bill is designed to prevent discrimination on the ground of sexual orientation in three simple areas: Employment, accommodation, and access to goods and services - nothing more and nothing less. Nowhere in this bill is there a redefinition of "spouse." Nowhere are the doors being thrown open to same-sex marriage. We are not concerned here today with benefits as they apply to same-sex couples; it is a simple question of lesbians, gays, bisexuals and heterosexuals having access to equality in their treatment in the workplace, in their accommodation, and in the use of goods and services.
Nothing in this legislation deals with special rights. It is not a special right to hold a job on the basis of merit. This bill will enable people to be treated in the workplace in accordance with their capabilities rather than discriminated against because of irrelevant personal characteristics such as their sexual orientation. Nothing will prevent an employer being able to fire someone who is gay if that person is not capable of doing the job. Nothing will prevent a landlord or service provider refusing to provide accommodation or services to people who are unwilling or unable to pay rent or who are unable to pay for services. It is a simple application of the merit principle without being undermined by discrimination on the basis of sexual orientation.
It is completely incorrect to say that 50 federal statutes will be affected by this legislation. The representatives from one of the earlier witnesses were confusing the application of the Canadian Charter of Rights and Freedoms with the Canadian Human Rights Act. The Canadian Charter of Rights and Freedoms has the ability to override other federal and provincial legislation in order to make it conform to the Charter of Rights and Freedoms which is part of the Constitution of Canada and the supreme law of Canada. The Canadian Human Rights Act simply deals with discrimination in the workplace, accommodation, and access to goods and services.
We know that there are eight jurisdictions in Canada which have now added sexual orientation to their human rights codes. Quebec was the first in 1977 - almost 20 years ago now; Ontario in 1986 - 10 years ago; and many other Canadian jurisdictions have followed suit since then. This legislation will bring the federal government up to the same point that Quebec was at 20 years ago, Ontario 10 years ago, and up to the prevailing situation in most of Canada.
If all the social ills that were described this morning as flowing from this legislation were truly to come to pass, one would have thought that we would have seen some sign of this in Quebec or in Ontario. It would be incumbent upon those who oppose this legislation to point to the consequences of adding sexual orientation to the Quebec Charter of Rights and to demonstrate some concrete social ill which has followed from that extension of protection against discrimination, but there have been no concrete examples of that. There have been no concrete negative consequences from adding sexual orientation to the Ontario Human Rights Code 10 years ago.
For us, this is a simple matter of equality. It is about being treated fairly and equally in the workplace and sending the message clearly to Canadians that lesbians, gays and bisexuals are equal Canadian citizens. We contribute equally to Canadian society and we are entitled to be treated with equality, justice and fairness.
The final comment I will make in my introductory remarks is a reference to the international situation. I am pleased to note that Ms Landolt, of REAL Women of Canada, indicated that Canada's laws should conform to international standards. As one of the members of this committee pointed out, there is an obligation in our Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights for states to respect the right of all citizens to be treated equally. There has been a decision of the United Nations Committee on Human Rights in the case of Toonen v. Australia in which the committee has held that the right to equality does include the right to equality on the basis of sexual orientation.
It is has now been determined by the committee responsible for administering international standards that the right to equality in international law includes the right for lesbians and gays to be treated equally. Canada has been proactive at the international level in calling upon other states to prohibit discrimination against gays and lesbians. We recognize, respect and congratulate Canada for taking that stance. I believe that Canada is justly proud of its human rights record. We must bring our own legislation into line with the Charter of Rights and our international commitments. Canadians will be seen as hypocrites internationally if we call upon other countries to take actions that we are not willing to take ourselves.
For all these reasons and more, we believe that this bill is extremely important. We commend the Senate for bringing it forward and encourage you to consider it favourably.
Mr. Philip MacAdam, Barrister and Solicitor, Member of EGALE: Madam Chair, honourable senators, I had the privilege, as Mr. Fisher has pointed out, of acting for the late Captain Birch and Mr. Haig in their application to challenge the constitutional validity of the Canadian Human Rights Act in 1990. That case was begun in Ontario Court General Division in December of 1990. It was argued here in Ottawa before Mr. Justice McDonald in the spring of 1991. The decision of Mr. Justice McDonald was released in September of 1991. Mr. Justice McDonald found that the Canadian Human Rights Act, by virtue of the absence of any protections against discrimination for gays and lesbians, was unconstitutional and he struck down section 3 of the Canadian Human Rights Act, but he stayed his judgment for six months or until an appeal was heard.
An appeal was heard in the Court of Appeal for Ontario in late January of 1992. The decision of the Ontario Court of Appeal was released in August of 1992. The full panel of the Ontario Court of Appeal which heard the appeal agreed with Mr. Justice McDonald that the Canadian Human Rights Act was unconstitutional by virtue of the absence of any protections against sexual orientation discrimination.
The court, rather than striking down the offending section, varied Mr. Justice McDonald's remedy by ordering that the Canadian Human Rights Act be interpreted, administered and applied as if sexual orientation were in the act. We refer to that as the "reading-in" remedy.
At that point, the federal government did not seek leave to appeal that decision to the Supreme Court of Canada and the Canadian Human Rights Commission began to receive complaints of sexual orientation discrimination and to investigate those complaints. Some of those complaints have been referred to tribunals.
Even though, technically, the decision of the Ontario Court of Appeal was only binding upon the Canadian Human Rights Commission in Ontario, the commission decided to treat the decision as if it were binding throughout Canada. That is why the commission has accepted complaints of sexual orientation discrimination from across the country since 1992. I am told that there have been over 100 such complaints, and a few of them have been referred to tribunals. At least one tribunal hearing has been held and that decision is pending.
Also, subsequent to the release of the decision of the Court of Appeal in the Haig and Birch case, at least a couple of other provincial legislatures moved to amend their human rights statutes to include sexual orientation as a prohibited ground of discrimination. Of course, we all thought at that time that the federal government would move rapidly to formally amend the Canadian Human Rights Act to bring it in line with the decision of the Court of Appeal in the Haig and Birch case. However, the federal government did not do so, and that is why we are here today.
I personally believe that it is a derogation of the government's responsibility to simply wait to see what the courts do in these cases. I remember that after the decision of Mr. Justice McDonald was released in the Ontario Court General Division in 1991, various media people and others asked the then Minister of Justice Kim Campbell: "Are you now going to formally amend the Canadian Human Rights Act?" I well recall Ms Campbell's response: "Oh, we're waiting to see what the Court of Appeal does." As a lawyer, I have difficulty with that kind of response. When the electorate puts people in office, they expect them to be making the laws, not to be waiting for the courts to make the laws for them. I think that is a derogation of the responsibility of our elected representatives.
Unfortunately, there is now some confusion in the law regarding the obligation of the legislature to amend the human rights legislation because of the Vriend decision which was referred to earlier by Senator Beaudoin. In the Vriend case, Mr. Vriend challenged the absence of any protection for gays and lesbians in the Alberta Individual Rights Protection Act, which is Albert's provincial human rights code, and was successful at the Queen's Bench division before Madam Justice Russell. The Alberta government appealed that decision to the Alberta Court of Appeal. The Alberta Court of Appeal recently released its decision. It overturned Madam Justice Russell's decision and essentially declared that it is up to the Alberta legislature to amend the Alberta Individual Rights Protection Act and not the Alberta Court of Appeal.
To a certain extent, many of us agree. It is the legislators who ought to be making the laws and not the courts. However, the fact is that the courts do have the power under the Canadian Constitution to amend statutes, and that has been recognized by the Supreme Court of Canada. That is why we have a Constitution; so that there is some safeguard and some protection afforded to - especially in this case - minority groups against actions by the majority, and against discrimination.
I agree with my friend Mr. Fisher. I think it is about time that the federal government took the leadership initiative and kept the promise it has been making for many years to amend the Canadian Human Rights Act. We now have this Alberta Court of Appeal decision and we have an Ontario Court of Appeal decision. It is up to the government to correct any confusion that might lie in the minds of Canadians and to formally amend the act.
Senator Gigantès: We heard earlier that this bill might lead to quotas for gays and lesbians in employment. Would you care to comment on that?
Mr. Fisher: Clearly, that is completely untrue. The Employment Equity Act itself does not specify quotas, and sexual orientation is not included in the employment equity legislation. The Canadian human rights legislation, which is the legislation with which we are dealing today, has nothing in it to do with quotas and there is no evidence to suggest that is the case. The only evidence in that regard which was introduced to this committee was the form being used by the University of Ottawa law school. It is quite clear from looking at the form that this is not a quota system. To suggest otherwise is a complete misrepresentation to this committee. It is clear from the explanatory notes that this is simply a means of gathering information by the law school faculty so that it may better respond to the needs of its students. It is no more discriminatory than when the Government of Canada conducts a census to gather information on the background and marital status of Canadian citizens so that it may better respond to the needs of Canadian citizens. Information gathering is a very different exercise from establishing quotas.
Senator Gigantès: We have heard the criticism that, because of this sort of legislation, if a homosexual is fired he will be able to claim discrimination even though he merited the firing.
Mr. Fisher: That is again completely untrue, senator. All the act would allow is for a person, whether he or she be heterosexual, homosexual or bisexual, who has faced discrimination to make a complaint to the Canadian Human Rights Commission. The commission will, of course, consider whether the complaint is justified. If it is unjustified, of course the complaint will not proceed. Nothing in the statute prevents an employer from dismissing someone who just cannot do the job. The question is whether it is discrimination when someone, who is otherwise performing perfectly capably in the workplace, is dismissed solely because the employer does not like the fact that he or she happens to be lesbian or gay.
Senator Gigantès: I have heard a bizarre argument that women have been discriminated against and fired just because they were women, which is true - and I have seen it happen - and, therefore, why should homosexuals be given more protection than women? I cannot explain that argument.
Mr. Fisher: I do not know how to respond, since I cannot explain that argument either. Clearly, a number of disadvantaged groups in Canadian society do face discrimination on a regular basis, which is why we have a Canadian Human Rights Act. That is why we recognize the historical and systemic disadvantage that has been faced by women, by lesbians and gays and different ethnic communities, and on the basis of language. I think anyone who tries to pretend that there is no discrimination in Canadian society is wearing blinkers and is unaware of the social reality of the society in which we live. Discrimination is part of the fabric of the society in which we live. It prevents people from enjoying full access to their rights and responsibilities as Canadian citizens, and it is the responsibility of government to ensure that the rights of Canadians are not restricted by unfair discriminatory practices.
Senator Pearson: I appreciate Mr. MacAdam for calling us to our responsibility as legislators. That was an important statement. I am prepared to accept my responsibility on this issue. I appreciate the clarity of your presentation. It has been most helpful to hear what you have had to say.
I was particularly interested in your comments as to our international obligations and our role on the international scene. On the anniversary of the Sharpville massacre, the International Day against Racial Discrimination, I was very moved to hear the High Commissioner from South Africa speaking so strongly on the question of human rights, stating that not only has the South African Constitution incorporated human rights as we have understood them in the declaration, but also incorporating sexual orientation as an unacceptable basis for discrimination. This is something that, in my earlier years, I would never have thought possible. For Canada to find itself lagging behind South Africa would be the greatest of ironies.
Mr. Fisher: I agree. The EGALE representative at the women's conference in Beijing also spoke to us about how moving the South African representative was in saying that, having struggled with apartheid for so long, they will ensure they do not discriminate against anyone again, including lesbians and gays.
[Translation]
Senator Beaudoin: I am in total agreement with your thinking on the Ontario Court of Appeal and Supreme Court of Canada decisions. You referred to the United Nations Law Division or Human Rights Division. Is this a recent case? Could you summarize it for me within a minute or two?
[English]
Mr. Fisher: Yes. I believe the case of Toonen v. Australia was within the last two to three years. It relates to a challenge to a Tasmanian law which criminalized all sexual behaviour between males. All the other states of Australia have decriminalized homosexual activity, as did Canada 25 years ago or thereabouts. A citizen of Tasmania charged under the law took the Australian government to the international committee, saying that to criminalize homosexual sex but not heterosexual sex constituted discrimination against Australia's international obligations. The committee agreed, as has the European committee in accordance with the European Human Rights Convention, and Australia was required to change its laws.
The Chair: If I may interject, the case is Toonen v. Australia, March 31, 1994.
Senator Kinsella: Could our witnesses give this committee a sense as to the magnitude of the problem of discrimination experienced by Canadians because of sexual orientation? There is some evidence before us already indicating that this is not a very serious matter. We read in the newspaper about assaults that may be related in some way to this question, but am I correct that your focus is more on the areas covered by the Human Rights Act, namely, employment, accommodation, and services? What is the magnitude of the problem? Could you give us some examples of what is happening out there?
Mr. MacAdam: A perfect example was the case of Captain Birch, one of the applicants in the case that I argued at the Ontario Court General Division and then at the Ontario Court of Appeal. Captain Birch, who been in the Canadian Armed Forces for several years, had been promoted to captain. When his commanding officer learned that he was gay, he was informed that the then policy regarding gays and lesbians in the Canadian Armed Forces would be applied, which is to say he would receive no further promotions, postings, or career training. That is a perfect example.
I agree with Mr. Fisher. Anyone in Canadian society who says that gays and lesbians are not discriminated against must be living with blinkers on or in some remote part of the woods in the Canadian far north and, perhaps, living entirely alone.
I have been practising in the gay and lesbian community here in Ottawa since 1985. About 80 per cent of my clients are gay and lesbian. I can tell you it is not just Captain Birch who has suffered discrimination. There are numerous other people who have called me over the years and asked me to represent them and to assist them to make complaints to the Ontario Human Rights Commission or to the Canadian Human Rights Commission since 1992 to try to seek some redress. They have suffered discrimination in employment and housing. These are the kind of problems that gays and lesbians continue to suffer.
I have a client just now who, as soon as his employer learned he was gay, assumed he must also be HIV-positive. These two types of discrimination sometimes become compounded. I have represented women who have been harassed at work because of their sexual orientation. It is quite common.
Senator Kinsella: Another matter that has been alluded to today and that has been the subject-matter of some interest in the media is the fact that we in the Senate are summoned to the Senate and come from a variety of walks of life and backgrounds, but we are appointed, not elected. Members of the other place are elected. In my view, here is a case where, for a variety of reasons, many of which are well known, the members of the other place and the various parties in the other place have had difficulty in dealing with this particular issue.
Do you have a theory which would explain why there has been hesitation in the House of Commons? As you know, the Senate of Canada did pass this exact piece of legislation and sent it to the House of Commons in 1993. Why do you think members of the House of Commons have difficulties with this?
Mr. MacAdam: I am sure Mr. Fisher has some theories about that, being probably more politically astute than I. One reason I can think of is that they do not know what it is like to be discriminated against. They have never been discriminated against. They do not what it is like to be called a "faggot" and to be beaten up because of your sexual orientation. There was a case here in Ottawa a few years ago where two guys threw a man who was not gay over the bridge and murdered that man, because he drowned. When the police interviewed them, they said, as if it was some justification, "We thought he was gay," as if that gave rise to a defence.
Senator Kinsella: Our system of government is an extremely successful model. The practice of freedom in Canada has enjoyed a grand success in the past 128 years. However, the Senate of Canada and the House of Commons are faced with a parliamentary problem. The sanctioning authority for Parliament is made up of the three parts - the Crown, the Senate and the House of Commons. In terms of minority-majority relations, if members of the other place keep an eye on what is popular and what the Gallup polls are saying, is there a danger that the practice of freedom, as far as the minorities are concerned, could be easily trampled upon or ignored?
Mr. Fisher: Yes. I endorse that and say without hesitation that I believe it is the responsibility of both chambers to do what is right and not what is popular. I concur that the Senate is particularly well placed to do the right thing - to protect the role and the rights of minorities in Canadian society without being answerable to pressure campaigns from potential voters.
In answer to your question about the reason for hesitation in the House of Commons, I can only say that we believe there may be a mistaken perception that this is more controversial than it really is amongst Canadians. I say "mistaken perception" because every public opinion poll that we are aware of having been done shows majority support amongst Canadians for amending the Canadian Human Rights Act to include sexual orientation. As long as there has been polling on this issue, there has been majority support. More recently, that support has risen to as high as 70 or 80 per cent. It is true that when questions are then asked about marriage or adoption, the percentage drops. Sometimes it is about 50-50. Sometimes it goes one way, and sometimes it goes another. However, when we look at discrimination in the workplace - and that is what we are dealing with here - it is clear that this has the support of the majority of Canadians. We have attached a summary of poll results to our brief.
We believe that, whether this problem is approached as a question of doing what is the will of the Canadian people, or whether it is approached as a question of doing the right thing and protecting minorities despite the will of the majority, amending the Canadian Human Rights Act is the right and popular thing to do.
Senator Kinsella: Our attention was drawn to the communication of the International Covenant on Civil and Political Rights under the protocol in the Toonen case. It would be a pity if we in Canada had to wait until we had adjudication of these issues of principle from the Human Rights Committee of the United Nations. We had to do that a few years ago in the matter of section 12(1)(b) of the Indian Act. Not only did Parliament say it was all right to discriminate against Indian women if they married non-Indians, but it was acceptable for their brothers to marry non-Indians. That was upheld by the Supreme Court of Canada as being acceptable in the Bédard action. It took a communication under the option of protocol to the International Covenant on Civil and Political Rights, which I happened to take on behalf of Sandra Lovelace, and Canada was condemned. As a result of that condemnation, fortunately we repealed section 12(1)(b) of the Indian Act. Indeed, section 28 of the Charter reads the way it does because of the Lovelace case.
Yes, we can learn and we have learned from international standards such as those provided under the International Covenant on Civil and Political Rights, but surely to heavens we should be doing these things as a result of domestic motivation.
The Chair: It is my experience both as educator and as a politician that many came forward to complain about discrimination on the basis of sexual orientation. I also found that heterosexuals came forward who, because of their occupation, were presumed to be homosexual. I am thinking particularly of male ballet dancers who were in most cases heterosexual, but they were deemed to be homosexual. I was surprised by testimony earlier from Mrs. Landolt who implied that this kind of discrimination is not out there, because that has not been my personal experience.
Do you have numbers on the percentage of gays and lesbians who suffer discrimination either in employment, accommodation or in the obtaining of goods and services?
Mr. Fisher: It is difficult to give you percentage figures partly because the homosexual community has faced such discrimination that many of us are not even, as we say, "out of the closet" or willing to admit to the people we love the most dearly that we are gay or lesbian for fear of facing discrimination.
At the EGALE office, I have spoken to young gay people who are terrified, isolated and alone. They are afraid to tell even their own parents that they are gay or lesbian because they fear the reaction and the discrimination. We are aware, of course, of tragic instances of young people who have committed suicide because they have identified themselves as gay or lesbian and have been thrown out of their homes.
When I was doing my master's degree at Queen's University, I had a friend in student residence who finally worked up the courage to tell his mother that he was gay. Her response was, "I will not have a faggot in my household." He tried to kill himself shortly thereafter. Again, his mother's response was, "You faggots will do anything to get attention."
The level of ignorance, hatred and discrimination is very strong. Tragically, it costs lives. If this legislation can do anything to educate the community and make people aware that we are recognized by our government as equal and entitled to be respected on that basis, then it is worth passing.
Senator Bryden: One section of the act has received virtually no attention this morning. I refer to section 16(1). It deals with the fact that it is not a discriminatory practice to have special programs to eliminate or reduce disadvantages that are suffered by any group of individuals when those disadvantages are based or related to race, national ethnic origin and age. This bill would add sexual orientation. Will this give you or your organization the basis on which to promote what in some jurisdictions are called "affirmative action programs" to redress certain situations? One of the examples used this morning related to an educational institution. Will this step further your ability to do that?
Mr. Fisher: If a particular program is designed not to further discrimination but to help reduce discrimination in society by eliminating barriers to equal opportunity, it is a fairly standard component of human rights legislation that it is recognized as non-discriminatory and it has been recognized by the courts as such.
It is difficult to say with certainty what programs might be covered, but the courts have held that any programs falling under section 16(1) still have to meet the tests of being non-discriminatory and reasonably linked to reducing conditions of disadvantage, rather than fostering discrimination by excluding members of other groups who might have a legitimate right to a particular benefit.
I believe we can say with confidence that section 16(1) will not become a tool for discrimination against heterosexuals, if that is what is being suggested. That is certainly the experience of those provinces which have already added sexual orientation to their human rights codes. It has been in the Ontario code for 10 years and the Quebec code for almost 20 years. There has not been rampant discrimination against heterosexuals or by women against men because of the recognition that you are entitled to carry out educational programs or other programs to help redress situations of disadvantage.
Senator Bryden: We are all aware of jurisdictions in the United States, for example, where affirmative action programs have been in place for a long time, in employment programs, in government and in universities. In some instances, whether legitimately or not, a type of backlash has happened claiming that some type of reverse discrimination is necessary in order to redress past wrongs, thus we must allocate X number of spaces to, for example, Hispanics, or black Americans.
Do you see any possibility that the same sort of reactionary situation might occur here by adding sexual orientation? This is a new area for which affirmative action programs may be requested, presumably by your association. Do you run the risk of that type of backlash?
Mr. Fisher: It may be new in relation to the federal Human Rights Act but sexual orientation and human rights legislation has been part of Canadian jurisprudence, as I have said, for almost 20 years now. There has been no sign of any difficulties. My understanding is that nothing in the Human Rights Act and certainly in this bill will have the effect of quota systems or affirmative action or anything of the kind.
Any provisions that are subject to challenge must still meet the tests of the human rights legislation and will be subject to analysis by the courts as to whether they truly meet those goals or whether they in fact perpetuate discrimination. At the same time, the courts have also recognized that human rights tribunals do have the power to attempt to identify systemic barriers to equality and to look at what factors in the workplace prevent different groups from receiving equal treatment.
There have been hiring practices, for instance, which have systematically excluded women from the workplace and led to professions which are dominated almost exclusively by males. Human rights tribunals have a range of remedies available to them in order to try to remove those barriers. But those are only remedies. They only come into play once it is found that discrimination actually exists.
I am confident that there is nothing in this legislation which would lead to the kinds of situations you describe, senator.
The Chair: Our next witnesses are from the Evangelical Fellowship of Canada.
Mr. Bruce J. Clemenger, Director of National Affairs, Evangelical Fellowship of Canada: With me are Ms Danielle Shaw, the projects coordinator with the Evangelical Fellowship of Canada and Mr. Bob Nadeau, our legal advisor.
The Evangelical Fellowship of Canada is a national association of protestant evangelicals. Our membership consists of 28 denominations as well as individual churches, para-church organizations and individuals. We were founded in 1964. One of the purposes of the fellowship is to represent the concerns of our constituency to Parliament, the courts and to other government bodies.
The Evangelical Fellowship agrees that no individual should be the subject of arbitrary discrimination based solely upon irrelevant personal characteristics. However, we are concerned that the amendment to the act will do more than simply protect particular members of society from discrimination in the areas of employment or the provision of government services. We are concerned that the amendment may lead to the redefinition of the terms "spouse," "marital status" and "family status" both within the act and in the legislative areas under federal jurisdiction.
Ms Danielle Shaw, Projects Coordinator, the Evangelical Fellowship of Canada: When the Haig decision was released by the Ontario Court of Appeal in 1992, the court was faced with a very difficult situation. It was asking: Should gays and lesbians be provided an avenue of redress where they are denied access to employment, promotions and job training where Parliament has failed to do so? The court answered that question in the affirmative, with the result that sexual orientation was judicially added to the act. The difficulty with the ruling in Haig is that it did not set the parameters for equality rights protection afforded by the act, and that decision is now being interpreted by the Canadian Human Rights Commission to mean that it would be discriminatory on the basis of sexual orientation not to extend spousal benefits to same-sex couples.
I remind you that Canadian courts have consistently upheld the right of legislators to exclude same-sex couples from the definition of "spouse" in federal legislation and benefits packages, and a majority of the Supreme Court of Canada in Egan ruled that the exclusion of same-sex couples from the definition of "spouse" contained in the Old Age Security Act was consistent with the Charter.
Mr. Clemenger: The scope of the Canadian Human Rights Act is broad. The Canadian Human Rights Act pertains to all laws in Canada coming within the purview of the legislative authority of Parliament. Its application extends to both private and governmental activities alike. The Supreme Court of Canada has described human rights legislation as:
public and fundamental law of general application [which] prevails where there is a conflict with other specific legislation.
Due to the quasi-constitutional nature of the Canadian Human Rights Act, the possible implications of amendment to it must be carefully weighed. For example, the Canadian Human Rights Act applies to telephonic communication messages likely to expose people to hatred or contempt. The act does not define "contempt." However, the term has been judicially interpreted to mean a mental process of looking down upon or treating as inferior the object of one's feelings. We ask: Would a religious person, or any other person motivated by moral conscience, who, on the basis of his or her beliefs or conscience, publicly maintains that an active homosexual lifestyle is sinful be guilty of inciting contempt for homosexuals? How does one reconcile the freedom of conscience and religion of those who have moral objections to an active homosexual lifestyle with the desire of homosexuals not to be subject of contempt because of their lifestyle?
The complexity of the act was exemplified, we believe, in Bill C-108, the proposed amendments to the act which were introduced by then Justice Minister Kim Campbell in 1992. When proposing inclusion of sexual orientation in the act, the Justice Minister anticipated a need to confirm the opposite-sex definition of "marital status." She allowed for exemptions with respect to hiring for religious organizations, and she added limits on the provisions of the act which parallel section 1 of the Charter. Bill S-2 would simply amend the act by adding two words, namely "sexual orientation," to sections 2, 3, and 16 without any corresponding amendments to safeguard against potentially undesirable social policy consequences.
Ms Shaw: We are concerned that a formal amendment to the act may lead to a de facto, if not express, redefinition of the terms "marital status" and "family status" as contained in the act. Over the past few years, two justice ministers and the Chief Commissioner of the Canadian Human Rights Commission have had different interpretations of the effect the amendment will have.
The Supreme Court of Canada in Mossop ruled that the exclusion of sexual orientation from the list of prohibited grounds of discrimination was evidence of the government's intention not to protect same-sex couples under the umbrella of family status. The court stated, however, that had the ground "sexual orientation" been added to the act along with "family status" in the 1980s, the outcome might have been different.
In Ontario, two boards of inquiry have found the definition of "marital status" contained in the Ontario Human Rights Code to be discriminatory on the basis of sexual orientation. The question we put to you is: Would a similar finding flow from an amended Canadian Human Rights Act? If "sexual orientation" is included in the act, it must be accompanied by an opposite-sex definition of "marital status" to indicate the clear intention of Parliament in amending the act. The amendment should also contain a provision similar to section 1 of the Charter so that public policy objectives intended by Parliament will not be undermined.
In Egan v. Canada, Mr. Justice Sopinka stated:
... government must be accorded some flexibility in extending social benefits and does not have to be pro-active in recognizing new social relationships... This Court has recognized that it is legitimate for the government to make choices between disadvantaged groups and that it must be provided with some leeway to do so.
Where section 1 of the Charter provides checks and balances where there are competing interests in society, human rights legislation does not contain any such provision. Where the Canadian Human Rights Commission finds that a discriminatory practice has occurred, there is no room under the Canadian Human Rights Act to consider the underlying policy objectives.
Mr. Clemenger: We are also concerned that the amendment to the act will result in de facto, if not express, redefinition of "spouse" and the extension of benefits to same-sex couples as spouses. Justice Minister Allan Rock has stated the amendment will not result in extension of benefits to same-sex partners. The question of benefits is a separate matter and is already subject to litigation under the Charter. However, the Chief Commissioner of the Canadian Human Rights Commission has stated:
We are strongly in favour of an amendment that would prohibit any discrimination based on sexual orientation. That means that if benefits are paid to a heterosexual couple living common law, the same benefits should be paid to a couple living in the same situation, except that they are two men or two women.
If the Chief Commissioner of the Human Rights Commission, the body to which the administration of the act has been entrusted, equates the amendment with the ability to extend benefits to same-sex couples, then why does the Justice Minister seem confident that the amendment will not have this effect?
If there are other forms of relationships in society which should be afforded benefits, or are deserving of protection, then these should be examined by Parliament. The redefinition of "spouse," "marital status" and "family status" is not the appropriate means to extend benefits or protection to other types of relationships.
Ms Shaw: The inclusion of "sexual orientation" in human rights legislation also threatens, we believe, the definition of marriage. Constitutional validity of the definition of marriage has already been challenged. Given the scope of the Canadian Human Rights Act, and its effect on all laws coming under the authority of Parliament, the inclusion of "sexual orientation" may make it more difficult to retain the current common-law definition of marriage. The opposite-sex definitions of "marriage" and "spouse" reflect a long-standing tradition of the English and Canadian common law, as well as European law, which restricts marital status and spousal status to heterosexual couples. It is also consistent with the definition of "spouse" in over 50 federal statutes and hundreds of provincial statutes throughout the country.
Any legislative amendment which could alter this definition should not be undertaken lightly but with the greatest of caution.
Mr. Clemenger: We are also concerned that the failure to define "sexual orientation" may have unwanted results, both in the types of groups that are protected and the scope of the activity that is protected under the auspices of the phrase "sexual orientation." Where definitions have been offered, they are troubling to us and indicate the problem with the term. The argument has been made that the term "sexual orientation" is all-inclusive as everyone has a sexual orientation. This is what concerns us. It could potentially cover all possible sexual orientations a person might have, including those which are presently unlawful.
For example, in Holland, with parental consent, children as young as 12 can have sex with adults. There has been very public advocacy by journalists and others in Canada that there should be no prohibition of sex between adults and children. In a letter to the Evangelical Fellowship, Justice Minister Allan Rock stated:
Some people have expressed a concern that this term [sexual orientation] might be broad enough to include protection for those engaging in sexual behaviours which are contrary to the Criminal Code... I do not believe this is a valid concern.
Yet, in May of 1995, one of three Ontario Court of Appeal judges ruled that the prohibition against anal intercourse between minors denied their choice of sexual expression.
Thus, by interpreting "sexual orientation" to include sexual expression, the courts made legal sexual behaviour which was previously contrary to the Criminal Code.
What exactly, then, is protected under the umbrella of "sexual orientation"? Is it one's disposition or does it extend to all forms of the expression which flow from one's disposition? If it is the expression, does it encompass a behaviour or lifestyle? And if it encompasses a behaviour or lifestyle, is that the sort of protection which was intended when the list of grounds was developed for the Charter and human rights codes?
The Charter and human rights codes seek to protect persons from unequal treatment because of who they are rather than what they do. A precise legal definition of "sexual orientation" would avoid the possibility of court challenges which may result in a broader definition of the term than legislators intended.
Ms Shaw: We acknowledge that there are several types of relationships which are not currently recognized under federal legislation and benefit schemes. In seeking to address what some consider inequities in the provision of benefits, in the absence of alternative categories the inequities have been addressed through the expansion of existing categories such as "marital status" and "spouse". Marriage and family have been given distinctive status which affords certain responsibilities, privileges and benefits because of their unique role in providing a stable and committed relationship between women and men and a setting for the procreation, raising and nurturing of children.
Amending the Canadian Human Rights Act prior to a comprehensive review of existing benefit structures and relationships of dependents without building in adequate definitional safeguards may very well lead to a redefinition of "spouse" and "marriage." We urge the definitional safeguards which would clearly define "marital status" as referring to heterosexual relationships only, exemptions for religious organizations and limits on equality rights similar to those in the Charter, as well as that a precise definition of "sexual orientation" be included if the amendments are to be enacted. To do less would be to abdicate the true responsibility of Parliament by ducking the tough issues and further allowing courts and tribunals to set the public policy agenda.
Senator Gigantès: It seems to me that you are saying that this bill, which will allow certain things, does not also give a long list of things that it will not allow. Is that your concern?
Mr. Clemenger: Our concern is that it is portrayed as offering protection for homosexuals, bisexuals, and people on the basis of sexual orientation in the areas of employment, housing and government services. As we understand the documents, the court cases, the letters we have received from the Minister of Justice and the statements that we have seen by Max Sheldon, they imply that inclusion of "sexual orientation" will do more than that, and those other consequences are not part of the public discussion of this bill. It is always touted as being related to only protection against discrimination in areas of employment. Our concern is to remind the Senate of the far-ranging implications of such an amendment and to urge public consultations to discuss those implications.
Senator Gigantès: Do you mean that this bill, if it were passed as it now stands, would allow, for instance, without any further legislation, the recognition of same-sex marriages?
Mr. Clemenger: No, we are not saying that at all. We are saying that you should look at the history of the provincial codes, for example, where amendments have been made to the Ontario Human Rights Code by simply adding two words: "sexual orientation." Human rights tribunals and courts have used that, as well as section 15(1) of the Charter, to read into the definition of "spouse," for example, "male and female" and expand that definition. Because the Canadian Human Rights Act is quasi-constitutional legislation, as I am sure all members of the Senate agree, then other legislation that falls under the purview of the federal government will have to conform. We see, through efforts that have been made in the last five to 10 years, that there will be that pressure. There have already been cases, as we state in our brief, where challenges to the definition of "marriage" have been brought in the courts. We see this as adding additional impetus to that. That is the concern our constituencies have.
We represent 28 church denominations. There is a real concern that that will be the effect unless the Senate shows leadership and addresses that concern thoughtfully - as I am sure senators will - and realizes that, based on statements by Max Yalden and several courts, that is a distinct possibility. We are not saying it is inevitable. Please do not misunderstand us. Justice Minister Kim Campbell recognized that in Bill C-108 and included definitions of "marital status," affirming the heterosexual nature of marriage. We would urge this Senate to take a similar, thoughtful approach.
Senator Gigantès: First, the Human Rights Act is not the Charter of Rights; it is only the Charter of Rights to which all other laws are subordinate. Second, what you are saying seems to disregard the fact that, in a democracy, legislatures can change their views. It is your perfect right to make these representations and it is part of the input to legislators so that they may try to find that compromise on the basis of which democracy functions in any area. However, the compromise shifts, like it or not, and legislatures change their minds. The laws of 100 years ago are not the laws of today. In Dickens' England you could cut off the hand of a little boy who stole a loaf of bread. There is no way that you can be given guarantees - even if we state exactly what you want us to state - that a future legislature, or the House of Commons, will not eventually change what it is you do not want to have changed.
You are doing your duty. You are here to tell us what you want protected. We are grateful to you, but I do not think that in a democracy you can be given any assurances that society will be forever what it is now.
Mr. Clemenger: Thank you for that comment. No one is asking for guarantees today. We are asking for a statement by the Senate that acknowledges the concerns of many, many Canadians.
When the Charter is being interpreted, the courts - and the Supreme Court has set the standard for this - look first at the scope of the section that is being pleaded. There is then an analysis under section 1. Mr. Justice Sopinka's judgment in Egan shows the importance of a section 1 analysis. A statement by this body, by Parliament, that would reaffirm "marital status" as being heterosexual, would be a very influential consideration when the section 1 analysis is being undertaken by the courts.
You are right, senator, there are no guarantees. However, if there is even the remote possibility that unintended effects will flow from a decision of this body, then I would think that it would be incumbent upon members of this body to address the concerns in their minds and provide some kind of safeguards in the legislation. We do not know what the future holds but, if you provide some safeguards, at least there would be some rational basis for proceeding.
Senator Beaudoin: I would return to the point raised by Senator Kinsella concerning the Lovelace case. We were censured by the United Nations in that instance, and today it is difficult to defend the libel case resulting from the decision of the Supreme Court. Now, under section 28 of the Charter indian men and women are treated equally. Do you not fear that we may find ourselves in a similar situation if we do not comply with the decisions in the Egan case and in the Haig case?
You open a very interesting debate on the question of marriage. Of course, marriage and divorce come under federal jurisdiction, although adoption comes under provincial jurisdiction. When dealing with human rights, we must keep that division of power in mind. The legislation adopted some years ago is in the federal sphere of jurisdiction. As Senator Gigantès has said, it is not the Charter, but it is a quasi-constitutional statute. However, that applies only to areas under federal jurisdiction. It does not apply to adoption.
We must keep in mind that the purpose of this legislation is to deal with a question of discrimination, at least legally speaking, and we have already had a decision of the Supreme Court of Canada in that area. Unless we strongly disagree with what the Supreme Court has said, we should follow that finding.
Mr. Nadeau: I will deal first with your question regarding the decision referred to earlier under the Indian Act. In Egan, it is true that, in the final analysis, there was a majority judgment of five to four. It was actually, as you know, a plurality judgment. It was not a majority decision in the strict sense of the word. However, for simplicity, it was a majority judgment. In fact, it was a unanimous judgment which found sexual orientation as analogous grounds. The Supreme Court of Canada justices were very divided, as you know, on whether or not the spousal definition in the Old Age Security Act was discriminatory. Four justices, led by Mr. Justice La Forest, a highly respected judge, provided some very thoughtful reasoning. It is not a clear, unanimous judgment. In fact, that judgment says to me, although it may not say this to anyone else, that Mr. Justice La Forest and his concurring justices saw the connection between the definition of "spouse" in the Old Age Security Act and marriage. They saw that and addressed it very specifically.
The Indian Act decision also shows that even the Supreme Court of Canada can be wrong. Several years later, we now realize that the Supreme Court of Canada was wrong, and the Supreme Court of Canada could be wrong today. We are asking for safeguards. Not even the Supreme Court of Canada is omniscient and prescient - no one is; not this body, not these presenters; not even the Supreme Court of Canada.
Senator Beaudoin: You are probably right that in the Lavell case they were wrong in that sense because obviously in the Loveless case at the United Nations level, on s'est fait tapé sur les doigts. It is too bad, but I think the court was wrong in that case. Are you now using the same argument and suggesting that the court may be wrong in the Egan case?
Mr. Nadeau: You will not deny the possibility that Egan might be seen as wrong 25 or 50 years down the road. I am sure that when the Indian Act decision was made everyone who decided it thought it was right, and the people in justice at that time likely thought it was right. History has a funny way of coming back and revisiting decisions we have made. I am not suggesting today that it is wrong. I cannot make that statement. I am suggesting that it is a very divided court and the substantial minority reflects some deeply held views, not only of the justices on the Supreme Court of Canada, but of many Canadians, about the sanctity of marriage and spousal status. Let us provide safeguards in that eventuality because who knows what the future holds?
Regarding the second question, the reason we use the adoption example is that it shows how an amendment to a human rights statute to include sexual orientation, in this case the Ontario Human Rights Code, can and will trickle down and affect things like the definition of spouse.
In a very recent decision in Ontario the Canadian Child and Family Services Act definition of spouse was ruled unconstitutional because it restricted adoption to only opposite-sex couples. That has now been ruled unconstitutional. We are saying that the same kind of situation can happen here. We are not saying it will happen; simply that it can. We are asking you to, at least, consider this as a possibility.
Mr. Clemenger: If I could add to that, Max Yalden has made statements to the effect that he believes the amendment will result in the extension of benefits to same-sex couples. As I understand it, that is based on the redefinition of "marital status" or "family status" which are presently in the act but not yet defined. I do not know how he will extend those benefits other than by causing a redefinition.
Another concern we raise in our brief is that, unlike the Charter, the human rights code does not have a section which says that, while on the surface this may look discriminatory, there are other policy objectives behind this discrimination which may make it legitimate. That is how Mr. Justice Sopinka swung in the Supreme Court of Canada on Egan. He found discrimination, but section 1 saved it.
In Bill C-108, then Justice Minister Kim Campbell suggested the same type of a qualifier within the Canadian Human Rights Act. We are saying that there is a strong possibility, if the new human rights commissioner follows the path of the former commission, benefits will be extended. We believe that would be done through a redefinition of "marital status." I would anticipate that. I am not sure how else it would be done.
We are asking that you look at the types of amendments that were included in Bill C-108 and that you put in some qualifiers.
Much of the media description of this bill is solely as an issue of discrimination in the areas of employment and government services. We think it has much broader ramifications, and we are concerned about those. We realize that law does change and that in 25 years people may see things differently from the way they do now, but there is much public concern and disagreement over many of the ancillary issues which we think will flow from this amendment. We encourage you to look carefully at those implications and address those issues as well.
Senator Kinsella: I wish to thank our witnesses from the Evangelical Fellowship. Your analysis is important and helpful to us.
To focus for a moment on the purpose of our anti-discrimination statutes, would you agree that the purpose of the Canadian Human Rights Act, as it is of the Ontario Human Rights Code and the New Brunswick Human Rights Code, is to be corrective rather than punitive legislation?
Ms Shaw: Yes, we do.
Senator Kinsella: Do I understand correctly that you recognize discrimination in employment, accommodation and services on the grounds of sexual orientation as an evil, and argue that that kind of discrimination should not be sustained?
Mr. Clemenger: Yes, where it is arbitrary discrimination and where the characteristic of sexual orientation is irrelevant. However, by way of example of a case which would concern us, I would cite a recent case that went to the Alberta Court of Appeal, the Vriend case. That case involved a homosexual man who was dismissed from a Christian college with certain moral standards, and he sought redress. We think that is not an arbitrary situation and in that instance sexual orientation is not irrelevant.
Senator Kinsella: Human rights legislation indeed provides, with all the proscribed grounds of discrimination, the provision for bona fide occupational limitations and qualifications, and commissions deal with these daily.
Can you tell the committee what percentage of complaints filed with the Human Rights Commissions, which are found by the commissions to be valid complaints, arrive at the level of tribunals or courts in relation to the percentage that are settled by the commissions?
Ms Shaw: My understanding is that when Mr. Yalden testified a few years ago on Bill C-108 he said that 2 per cent were actually adjudicated. I do not have that statistic before me this morning, but that is my recollection.
Senator Kinsella: My experience over the 23 years I was the Chief Human Rights Commissioner in New Brunswick was that 98 per cent of the complaints received were valid complaints and were conciliated, although we had many which were thrown out as being groundless. That is probably the current statistic.
Turning to another topic, recognizing that human rights legislation is meant to be corrective and educational, not punitive, and recognizing that we live an era of social change, nevertheless, I understand your prospective concern. Your excellent testimony deals with things that might happen but, equally, they may not happen. When we get into the prospective side of things, we are making our best, honest guess as to dangers and pitfalls, but they may never occur. Do you recognize that?
Mr. Nadeau: Yes, I certainly do. One way of minimizing the risk, of course, is that, when you have a rational basis for believing that it might happen and precedent tells you that it may even be likely to happen at some point, or there is a strong possibility of that, you take steps to try to minimize that in any way you can, again not knowing what the future holds.
Senator Kinsella: For 20 years, the Province of Quebec has had this particular proscribed grounds in their Human Rights Act. We have worked through all the cases there. The worst case scenario at the federal jurisdiction is that somehow the federal jurisdiction is special and the problems of work or accommodation are different.
In the worst case scenario, do you not agree that we are dealing with a piece of statutory law and that to change statutory law does not require the difficult amending process of changing the Constitution? Simply, the majority in the two houses of parliament will allow you to repeal an act.
Mr. Nadeau: Yes, obviously I agree with that statement. You would also agree with me, I think, that amending human rights legislation, as you are experiencing here today, and as the House experienced when it tried so many times to amend this legislation to include sexual orientation, is also an extremely difficult process. I believe you are indicating that, if amendments were made today and the results were then seen to be undesirable, we could come back and correct that.
I would like Senator Beaudoin to correct me if I am wrong, but I would think that a statement from Parliament on this legislation, if it were adopted, would have a tremendous influence on a section 1 analysis. That becomes constitutional law once the Supreme Court of Canada speaks. If Parliament has in fact made an amendment to a human rights statute that reaffirms the heterosexual nature of marriage, the Supreme Court of Canada will not ignore that. They show a certain amount of deference to Parliament's decisions on matters of social policy and, therefore, it is a significant matter. It is not simply a question of going back later and changing it if it has become part of the constitutional fabric of the country.
Senator Kinsella: The issue of marriage has been raised quite often in our discussions. We are not dealing with the Marriage Act as such, but I understand the arguments. Do you not think there is an argument that, by the current absence of sexual orientation under the list of proscribed grounds of discrimination, and the presence, as it is in the act, of family status and marital status, those problems that we have been talking about exist? In adding sexual orientation to the list, if the issue that arises is one of sexual orientation, then one deals with it and the complaint will be dealt with under that ground. If the issue is one of marital status, then the issue will be under that ground. In other words, the absence of the three grounds creates some confusion, perhaps, but the presence of three grounds allows for fairly clear categorization.
Mr. Clemenger: The Mossop decision before the Supreme Court was a challenge on the basis of a homosexual man who wanted to expand the notion of family status. It was not argued on Charter grounds but on the basis of the Canadian Human Rights Act. The Supreme Court decision was divided four to three, but in the majority decision they noted that sexual orientation was not added when family status was added to the act, and therefore they ruled that the definition of family status excluding homosexual couples was not discriminatory. However, they said, had it been included, they may have found otherwise.
The Leshner decision, a human rights tribunal decision in Ontario once sexual orientation had been added into the Ontario Human Rights Code, resulted in a redefinition by the tribunal of the definition of marital status because they found that marital status being defined as "opposite sex" was discriminatory against sexual orientation.
I have seen no cogent legal argument to say that it will not happen. We see those kind of decisions along the way, and other than a section 1 saving, in our opinion it is clear that the inclusion of sexual orientation will put immediate weight or pressure on the definition of "marital status" or "family status" within the act.
In Egan, which dealt with the definition of "spouse" in the Old Age Security Act, as Mr. Nadeau mentioned before, four of the nine judges saw fit to talk about marriage because they saw the direct link between the notion of spouse and marriage. We say they are all linked, and the inclusion will then have a competing influence on other definitions within the code itself.
Senator Kinsella: Yet, we have the support of the Canadian Bar Association for this amendment, and one would take it from their legal analysis that they do not see the same kind of danger.
I have the greatest respect for the Evangelical Fellowship. We have heard the legal arguments, but we are also interested in the social arguments. More importantly, you come to us as experts. What are the fundamental theological arguments that would be advanced to sustain your position?
Mr. Clemenger: What is it that we are trying to protect? Is it the orientation? Is it a disposition? Is it an inclination? Is it a life-style activity? Most of our member churches make that distinction. The phrase often used is that you love the sinner but not the sin. They make a distinction between the person and the activity itself.
In terms of employment discrimination, if sexual orientation is irrelevant to the job, then there should be no discrimination. Our concern is about leaving it undefined. You mentioned that the Canadian Human Rights Act has two functions: One is corrective; and one is educational. If we are protecting sexual orientation, which includes lifestyle, and the Canadian Human Rights Act has an educational component to it, then in what area are we seeking to educate? We then are in direct violation of what we understand to be the understanding of scripture regarding the sinfulness of homosexual activity itself.
Moving to marriage, we see marriage as an institution ordained by God. It is the most inclusive relationship because we exist in two sexes and marriage is the union of those two sexes. That is the fundamental part of marriage. It is for life-long companionship and responsibility. It is the one relationship wherein children can be procreated and nurtured.
To our minds, from our religious perspective, it is a vital institution. We often talk in terms of the sanctity of marriage. We want marriage to be held distinct. It would be good for Canadian society to hold that type of relationship to be distinct and separate from all others. Parliament has understood that it has a distinctive contribution to society and needs to be protected in special ways.
We understand there are other forms of relationships which may also need some type of recognition protection. Let that be dealt with separately. Do not impinge upon, redefine or reconstruct these notions which many Canadians hold dear.
Senator Pearson: Your presentation has been very clear, thoughtful and principled. To follow up on Senator Kinsella's comments, the questions of principle interest me.
I was struck by your earlier comment on the freedom of conscience issue and the fact that, because you consider something a sin, you might be accused of promoting hatred against a certain group. I think you have answered that by saying it is the sin and not the sinner about which you speak. I do not think, over the years, that has turned out to be an enormous problem.
However, we are talking about a conflict of principle. My view of this particular legislation is that it addresses a fundamental principle of discrimination. I have lived in enough countries, including some where discrimination has been almost legislated, to have become very sensitive to this issue.
Do you think it is acceptable to use this opportunity to diminish what I see and know to be painful and real discrimination against certain individuals in areas of employment, accommodation and access to goods and services in order to preserve a definition of the family?
I see that as a conflict of principle. Personally, as you can imagine, the first principle in this particular legislation is the one which I support.
Mr. Nadeau: I do not think we are engaged in a zero sum game. We need not be. We need not sacrifice one principle for the other. We understand that this committee is trying to protect homosexuals against arbitrary discrimination when it is irrelevant.
Senator Gigantès: When it is irrelevant? Do you mean that it is sometimes relevant?
Mr. Nadeau: Yes, it would be in the example of the Christian college given earlier. A religious institution like a Christian college which has certain values based on its religious beliefs should have the right to discriminate by saying that we cannot hire a homosexual who is engaged in a lifestyle that our very religion holds to be wrong.
What we are offering you today is an avenue, a way of accomplishing your objective while, at the same time, enabling those of us who are concerned about the potential ramifications and implications to have some measure of comfort and assurance that, in achieving your objectives, the legislation will not have the unintended and the potential effect of undermining those principles you talked about that are near and dear to us. One principle need not win out over the other. I believe that, if you study our recommendations carefully, you can accomplish both objectives.
Senator Pearson: You are asking us to do more than we can possibly do in this piece of legislation. This legislation is about discrimination. It is not a place for putting in a preamble describing the Canadian family.
Mr. Nadeau: We believe that Bill C-108 which Justice Minister Kim Campbell introduced for the same purpose has, in fact, provided a model which could be used by this body. They provided definitions of marital status and the kind of protection we are requesting. We would hope that you study that model and our proposals with goodwill and a desire to balance these competing principles.
One of the difficulties for this body and the chamber is the conflict between values and visions and principles. In a pluralistic society, in a liberal democracy, where men and women of goodwill who are committed to constitutional government are confronted with these conflicting value systems, how are you as legislators going to find a way?
We are hoping that we have provided for you some way of steering through that very thick and thorny mirage which stands before you.
Senator Bryden: I do not know whether you had an opportunity to see the written submission made to this committee in a letter to the Prime Minister from the Canadian Conference of Catholic Bishops. It may not surprise you that many of the concerns expressed by yourselves this morning are expressed in that submission. I want to read one part for the record, and then I would ask a question for clarification.
The first concern expressed in the letter is this:
We are concerned that the proposed amendment to the Canadian Human Rights Act will facilitate claims for same sex benefits which may result in the redefinition of the historical understandings of marriage, marital status, family status and spouse.
If I understood you correctly, you share some of those concerns. You submit that the issue of marriage, marital status, and what constitutes the parties to a marriage in our society are so fundamental to our society and to your position that, if public policy will change that, then the subject should first be given an open, public debate. Your concern is that this very fundamental policy, for you and for the Catholic bishops, may in fact be changed not inadvertently but somehow by the back door - that is a terrible phrase to use - by the use of what appears to be a very good amendment to protect people who require protection? Is that a fair statement?
Mr. Clemenger: That is the core of our argument. You summed it up very well. Our concern is that these attempts to address issues of discrimination in employment and government services, given a survey of the court cases and the arguments which we have laid before you - I am not a lawyer but I will try to speak confidently - will result in a redefinition of "marital status" and "spouse" within the act. We have seen that happen in provincial rulings of human rights commissions. That will again put pressure on those definitions.
The former Human Rights Commissioner has also said that he understands this amendment will extend benefits. Kim Campbell, as justice minister, defined "marital status" to include opposite sexes, while also proposing to include "sexual orientation" in the Human Rights Act in Bill C-108. Max Yalden said at that time:
We completely agree that the inclusion of the term "sexual orientation" should be part of the amendments to the act.
Unfortunately, at the same time, a definition of the term "spouse" in marital status was added which seemed to restrict the status to heterosexual relationships. It seemed as though the government was taking back with its left hand what it had given with the right. We understood that to include "sexual orientation" would extend benefits through the redefinition of "spouse" in marital status, and then by defining "marital status" to include opposite sex, you are taking back what you had given.
We are saying that, by not including a definition of "marital status" or "family status," the language being used here will cause a redefinition of those categories in the act and put increasing pressure on the definition of "spouse" and "marriage" outside the act because of the general purview of the Canadian Human Rights Act.
We see a direct link. That is not part of the public discussion. The public discussion has always been around employment discrimination. We are saying there are other dimensions and elements.
There are also other implications of this amendment. Those are part of the public discussion. We think those should be because we agree wholeheartedly with what the Catholic bishops said in their letter.
The Chair: I would ask the permission of members of the committee to change out schedule slightly. Mr. Max Yalden, the commissioner of the Canadian Human Rights Commission, has arrived. He cannot delay his presentation because of an additional commitment. We were to hear from representative of Focus on the Family next. We will still hear from them, but I would suggest that we hear from Mr. Yalden first so that we do not miss the opportunity to do so, since he has become the subject of a great deal of this morning's discussion. Is that agreeable?
Hon. Senators: Agreed.
The Chair: Mr. Yalden, I know there will be a lot of questions for you this morning. Perhaps you can make your presentation as briefly as possible so that we can then have a very open discussion.
Mr. Max Yalden, Commissioner, Canadian Human Rights Commission: I shall be brief. First, I wish to thank the members of the committee for agreeing to hear my presentation now, as I do have another commitment. I also thank the Focus on the Family Association for their courtesy in allowing me to go ahead.
Some of you may find my remarks familiar because I appeared before this committee when Senator Kinsella's bill was before you in 1993. I need not remind you that it died on the Order Paper. I also need not remind you that the Canadian Human Rights Commission has been on record for many years as favouring the inclusion of "sexual orientation" in the act.
We were pleased that the Senate saw fit to pass that bill in 1993, and we hope it will see fit to do so in 1996.
[Translation]
I recognize that these issues are controversial for some Canadians, although the majority of the population opposes discrimination against homosexuals. We are interested solely in the issue of discrimination.
[English]
We are not talking about approving a lifestyle. We are not talking about who is married and who is not married. That is none of the business of our commission. We are talking about equality rights. We are talking about all Canadians being recognized as equal, whatever their religion, their age, their ethnic origin, or their sexual orientation.
This has been recognized in the anti-discrimination laws of seven provinces. Only Alberta, Newfoundland and Prince Edward Island do not have "sexual orientation" in their human rights legislation. It has been confirmed by the courts in an unappealed decision of the Ontario Court of Appeal in the case of Haig and Birch and recently by the Supreme Court of Canada, unanimously, in the Egan and Nesbitt case.
The court jurisprudence is so clear on the matter that we are often asked why we need to change the act. We have already had "sexual orientation" read into the act by the Court of Appeal. We are already accepting complaints against discrimination on the grounds of sexual orientation. Why, then, a change to the act?
[Translation]
There are two reasons. First, it is up to Parliament to legislate. This is a role that should not be left up to the courts.
[English]
Second, in our view, Canadians have a right to know what is in the law and what their rights are by reading the law. They ought not to be obliged to go to arcane texts which tell them what has been decided in this or that court in order to know what their rights are. This they can cannot know unless and until those words appear in the Canadian Human Rights Act.
Since I know you have many questions, I will conclude on that note. Adding the words "sexual orientation" to the Canadian Human Rights Act as Bill S-2 would do does not constitute the endorsement of a particular lifestyle, nor will it give anyone special rights. On the contrary, it sends a message that all Canadians have an equal right to employment and to services in the federal jurisdiction. We believe this message is long overdue.
I would be happy to answer any questions if I can.
[Translation]
Senator Nolin: What level of concern do you have regarding a possible decision of the Supreme Court in the Alberta Court's decision?
Mr. Yalden: My level of concern is very low; in short, I believe that we are going to win. I see here Senator Beaudoin, who is a renowned constitutionalist and an expert in the matters before the Supreme Court, and it might be wise to ask him the question. In my opinion, the Alberta Court of Appeal was wrong and will not be supported by the Supreme Court of Canada.
Senator Nolin: Because the Supreme Court would in any event go against its previous decisions.
Mr. Yalden: In Egan, the Supreme Court stated that sexual orientation was a prohibited ground of discrimination. In the Schacter decision, the Supreme Court said that it was possible that it might be a case of "reading in." The Alberta Court of Appeal nevertheless seems to have a different opinion on these two points. Obviously, it is up to the Supreme Court judges to decide, not up to me. But that is my opinion.
Senator Nolin: Mr.Yalden, you referred to the fact that Bill S-2 is relatively limited in its basic aim and that one should not read into it something that isn't there. However, all the witnesses we heard this morning who were of a contrary opinion warned us of the possible consequences of the introduction of such an amendment. What is your opinion on this?
Mr. Yalden: The consequences as far as benefits are concerned, for example?
Senator Nolin: On the interpretation or on the fact that the federal act, following the example of the acts of seven provinces and one territory, be amended to include sexual orientation as a ground of discrimination. Would that not be tacit recognition that there is more to it, that there is a message in this amendment? Myself and some of my colleagues have not turned a deaf ear to the arguments of the witnesses who appeared before you. One cannot examine an amendment without attempting to see what consequences there might be. What do you think?
Mr. Yalden: I see no consequences of this nature. I see that certain observers are making this type of comment. I know of no province where the inclusion in the legislation of sexual orientation as a prohibited ground for discrimination has had the effect we are talking about here. I just cannot see it, and I have been following this very closely, because it is part of my job.
Senator Nolin: This is why I am asking you the question.
Mr. Yalden: I cannot see that effect. It is true that there have been other debates in certain provinces. In Ontario, for example, there was a debate on other changes to the Act that brought about other questions. But the paragraph on sexual orientation in the Ontario Act dates back quite a while and- if there are problems in Ontario- it isn't those two words that caused them.
As I just explained in my opening remarks, what we are talking about is limited exclusively to the issue of discrimination against homosexuals, period. That means that there should be no discrimination in the area of employment in federal organizations, departments or Crown corporations, nor in private companies under federal jurisdiction such as Bell Canada, et cetera.
This isn't an artificial question. Everyone knows that not so long ago, if you were a homosexual you couldn't be a civil servant. And if it was discovered that you were a homosexual, then you were booted out. When I arrived in Ottawa, that is the way things were at External Affairs. In the armed forces, the change is very recent: it is only in the last four years that people haven't been fired because of their homosexuality.
As far as benefits for same-sex couples are concerned, our position is that if a dental or medical care program is being offered to common law spouses, then these benefits should be offered to homosexual people living in a similar situation. To not do so is, in our view, discriminatory.
These are benefits that are already offered by various private sector companies. I could give you a list of private sector institutions that offer such benefits.
Senator Nolin: The Senate is one example.
Mr. Yalden: For certain benefits, yes.
Senator Beaudoin: You have already largely answered the question I wanted to ask. Senator Nolin put his finger right on the problem. The witnesses I have heard regarding this bill, those who oppose it, say that it isn't just a discrimination issue, that it goes further than that, that it might influence provinces in the area of adoption, that it might influence the Canadian Parliament when it legislates on issues such as marriage and divorce, et cetera.
If, as you say, the bill is limited to the matter of equality before the law, then I see no problem whatsoever. Parliament must it too respect the Canadian Charter of Rights and Freedoms, and if it fails to do so it is going to be rapped over the knuckles by the Supreme Court.
I was pleased to hear you say that it is an issue of equality before the law. It is an issue of discrimination. But it in no way prejudges what Parliament might do in other areas that fall under federal jurisdiction. Is that a proper interpretation of what you said?
Mr. Yalden: Indeed. It is solely a matter of discrimination, of equality. Senator Beaudoin mentioned adoptions. It is recognized, at least by the experts, that no Western country - not even Scandinavian countries or the Netherlands, that have a rather liberal position on these matters and that have legislation protecting homosexuals from discrimination - authorizes adoptions. There is no link between the two things. To say so is wrong. These things are invented to frighten people.
For example, even in the Netherlands and in Denmark, the most liberal country - liberal with a small "l" - adoptions aren't allowed. There is therefore no link between the two.
As far as discrimination and the "religious" argument - if I may use that term - I would quote the catechism that was approved by the Holy Father nine months ago. This is what it states, and I quote:
[English]
Every sign of unjust discrimination in their regard should be avoided.
This comes from the catechism. This is the position of the Church of Rome. The Anglican Church and the United Church take similar positions. It is not true that the Church is opposed.
I have read the letter, incidentally, from the Conference of Catholic Bishops. They are, in part, drawing on this catechism. Of course, they do not approve of a particular lifestyle. We know that, but we are not talking about that, we are talking about not discriminating in matters of employment and services against a particular type of person.
Senator Kinsella: Just picking up on that last point, the letter we received from the Canadian Conference of Catholic Bishops is divided into two parts, one regarding principles and the other regarding concerns. I have no difficulty in embracing all the principles they have articulated, including the principle where they quote from Cardinal Hume as follows:
...the Church does have a duty to oppose discrimination in all circumstances where a person's sexual orientation ... cannot reasonably be regarded as relevant.
I think it is on the side of their concerns and those of the previous witnesses, which I would describe as possible problems in the future, that I think they can argue, and they have argued well, that those concerns are there.
Do you recall, commissioner, the kinds of concerns, the future concerns, that people said would arise from putting in anti-discrimination legislation such as the Fair Accommodation Practices Act, which then became codified in the Human Rights Act, under which it was forbidden for a landlord to refuse to rent an apartment or accommodation to a person because of the colour of their skin or because of their race? Landlord associations came forward and said, "Well, the problem with that is that you will empty our buildings because if we have to take in a black family, everybody else will move out." Those kinds of concerns are about what might happen. Do you see anything analogous here in the concerns which have been raised, which are really off the point of combatting discrimination but are nevertheless honest concerns?
Mr. Yalden: Senator Kinsella has a very sound point. The fears raised in the past 20 or 30 years about various types of anti-discrimination legislation have not proven to be founded.
I do not want in any way to take issue with the letter from the Canadian Conference of Catholic Bishops. However, at one point they observe:
We are concerned that the teaching and the hiring practices of religious institutions be protected.
I would say with great respect, again, that that is not pertinent. That is not what we are talking about. There are Supreme Court decisions which protect the right of a religious institution. They do not go to the matter of homosexuality. A case was decided by the Supreme Court which, for example, allowed that it was a bona fide requirement on the part of a school to have a practising Catholic teaching. Other cases have upheld that a person who is divorced and who married another divorced person can be dismissed from a Catholic school.
We did not reach the substantive matter in Mr. Vriend's case. The argument that will go to the Supreme Court is whether or not the Alberta human rights legislation is underinclusive. In other words, it is a technical argument. However, if they ever get back to the substance of the case, which would be whether Mr. Vriend as a homosexual person could or could not be dismissed by the Church-based school for which he was working, the courts will decide. It will not be decided because there is a reference in the Alberta Individual Rights Protection Act to sexual orientation.
The courts have a fairly long jurisprudential history in this matter. They will have to take account of it. I think this kind of fear is misplaced.
The suggestion that somehow or other this kind of amendment will create "social recognition of homosexual relationships" is probably misplaced as well. Whether or not there will be such social recognition of such relations is another matter. After all, since the time when most of us around this table were once young there have been developments in respect of persons living common law. Certainly, when I was a child, the view of two individuals living in such a heterosexual relationship was very different from what it is today. What the future of same-sex relationships may be, I do not know. I know it will not be changed by putting the words "sexual orientation" in the Canadian Human Rights Act which is what we are discussing today.
Senator Kinsella: Can the commissioner advise the members of the committee as to the magnitude of the evil that this bill attempts to address? How many complaints are the human rights commissions receiving in respect of which discrimination is alleged because of sexual orientation in employment, accommodation and services?
Mr. Yalden: We do not have many complaints. We have something in the order of 100.
It must be remembered that for 15 of the 18 years of the life of the commission we did not take any such complaints. We began to take them after the case known as Haig and Birch was decided by the Ontario Court of Appeal and not, in turn, appealed to the Supreme Court by the Attorney General.
A number are benefits cases. Others relate to people who were denied an employment opportunity or promotion or something of that sort.
Senator Kinsella: Commissioner, a prior witness mentioned something you said when you appeared as a witness before the House of Commons Standing Committee on Human Rights and the Status of Disabled Persons on March 15, 1994. It was a reference to a comment you made about Bill C-108 which was under discussion at that time. This witness stated that you understood that the inclusion of "sexual orientation" would enable the Canadian Human Rights Commission to expand the definition of "marital status" or "spouse" to include homosexual couples when adjudicating human rights complaints. Would you comment on that?
Mr. Yalden: I do not think that I have ever said anything like that. Was that statement attributed to me?
Senator Kinsella: Yes.
Mr. Yalden: I have said repeatedly that the Canadian Human Rights Commission is not in the business of saying who is married and who is not married, period. We will not start doing that, at least as long as I am around we will not. There is no basis in that comment.
One thing we did say about Bill C-108 was that we were puzzled by the definition of "marital status" that the government of the day had included immediately after the amendment that would insert the words "sexual orientation". We were not sure whether this was designed to negate what they were putting in in another part of the law. We were puzzled by it. In fact, a number of experts, even expert legal draughtsmen, did not know what those words meant. They purported to define "marital status" and stated that it was people who were married or divorced or people who never married but who were living together in a heterosexual, conjugal situation for more than one year. We wondered what all of that meant. It sounded like some sort of tautology, but what was it? What was it designed to do? The bill died on the Order Paper, in any event, so we never did learn what it meant.
[Translation]
Senator Roux: My question goes back in part to Commissioner Yalden's last comment. What do you think of the wish expressed by some witnesses who are asking the Senate to study the possibility of adding a paragraph to the proposed amendment, reaffirming the sanctity of marriage as far as heterosexuality of spouses is concerned?
Mr. Yalden: It is obviously up to the senators to decide if they want to add a paragraph dealing with the very special nature of marriage, be it traditional or common law. It is not up to us to decide. As far as I can see, as I said earlier, the amendment has no impact on the definition, on the issue of establishing who is married and who is not. That is a matter that comes partly under provincial jurisdiction, and partly under federal jurisdiction.
[English]
- solemnization of marriage and marriage. Senator Beaudoin will cite the proper sections of the Constitution of 1867.
[Translation]
Senator Beaudoin: The marriage ceremony comes under provincial jurisdiction?
Mr. Yalden: Yes, it is partly in the provincial domain and partly in the federal domain. It is not up to us to make rulings on marriage. I would repeat, once again, that as far as benefits are concerned, if a benefit is granted to two heterosexuals living in a stable relationship, after a year of living together, in accordance with the definition given in the Income Tax Act, it is discriminatory to not grant the benefit to a same-sex couple living in the same type of situation. We are not saying whether this second couple is married or not.
I fail to see how the institution of marriage is threatened by what we are proposing. I have been married 44 years and I don't feel threatened.
[English]
The Chair: Mr. Commissioner, thank you for your presentation.
Mr. Yalden: It is a pleasure to have been with you. If there is anything we can provide by way of further information, we would be happy to do so. I will send you that list of private sector firms which provides the same-sex benefits. It is quite instructive.
The Chair: That would be very useful.
I would ask representatives from the Focus on the Family (Canada) Association to come forward.
Allow me to express my thanks, on behalf of the committee, for your willingness to allow Mr. Yalden to precede you today. I appreciate that you are still with us and willing to make your presentation.
Mr. James Sclater, Vice-President, Public Policy, Focus on the Family (Canada) Association: Thank you, Madam Chair. This gives us the last word today. Unfortunately, it also means that we are the ones who will interrupt your lunch. I wish to take a few minutes to present some of our heartfelt concerns.
Mrs. Cindy Silver is with me as our legal representative on public policy at Focus on the Family. I am not a lawyer and tend to make my remarks along sociological lines. Our concerns have been well expressed by groups before us. I will reiterate some of them and add some challenges which I think are appropriate for this body this morning.
Thank you for the opportunity to appear before you. We do appreciate that, after making enquiries, we were invited to appear.
I do not believe that all the witnesses who should have been here have appeared. Senator Kinsella asked about theology. I would ask about psychology, sociology, anthropology and history. This process is most important to a fundamental unit of our society. In fact, this is a watershed in the history of our nation. We honestly believe, as has already been well stated, that this cannot stop here. This will open the door and produce some of the results other witnesses have delineated so well.
Where are the physicians and psychiatrists? Where are the people who have studied human nature, the human condition and the problems humanity is having around the world? Where are those folks representing the Canadian public?
It has been said that this is handing the present government a bill on a silver platter. I think it is incumbent on this body, as the initiating body of the legislation, to think more thoroughly about the implications for our society and to have the other people whom I have listed testify about the impact this will have on our society and about the nature of homosexuality and the other orientations that are supposedly covered by this phrase.
I and others who appeared before the justice committee on Bill C-41 asked why sexual orientation cannot be defined. The answer we were given was that the courts have defined it. In fact, all the courts have done is deal with some cases that may have involved homosexuality. They claimed that some of them involved heterosexuality. Those who say that "sexual orientation" is the advisable phrase tell me that I am protected by it; that I cannot be discriminated against because I am heterosexual.
I would ask this body why "sexual orientation" cannot be defined. Would it not be honourable and appropriate, considering that the bill was initiated in this place, to include a definition? What do they mean? We have been told that the courts say they mean homosexuality, heterosexuality and bisexuality.
Although I know it is late in the process, I have a proposal to put forward on this issue. This process began because of the demands of a community within our country which should be, and I believe are, protected by our laws. This was not initiated by the Human Rights Commission looking for more folks who should be protected, but rather by a group demanding rights.
The December 9 coalition that met with the Honourable Allan Rock in Vancouver a couple of years ago presented their claim that they want to be welcome in the world. They do not want tolerance or mere acceptability; they want a welcome on all fronts. Why have we not heard from them in those terms? Why have we not heard from the balancing people on the other side who would also challenge the definition?
Gay and lesbian groups have a web site on the Internet which lists transgenderist people. I am not sure what that means. They also use the word "transexuality." I cannot keep up with those words in terms of definition. They also list transvestites.
Many states in the United States and many countries around the world have defined sexual orientation. I may not like some of the definitions, but they at least realized how important it was to define it.
In addition to suggesting that there should have been other witnesses heard here, I suggest that it is incumbent on this honourable body, which traditionally has a second look at legislation and has seen fit to initiate this bill, to have done more extensive homework.
We were not sought out to come here. We heard about the process and knew that the Senate would be proposing a bill. At the last minute, we found out how to apply and we were accepted. We are grateful to be here. We think that we represent a good number of Canadians across the country. Focus on the Family has a mailing list of only 140,000 households, but that represents a lot of people. We have a radio program on 400 radio stations. We have a budget of $8 million. This tells us that many Canadians care about the family and they care about being represented in a process such as this.
I have a simple challenge. I believe it is appropriate to challenge this body. I suggest that it would be appropriate for this body to reject this legislation in order to send a signal to the House of Commons, which will have to deliberate on this matter, either through their own bill or this one, to think about having a public process to allow for the further input to which I referred. I make that suggestion sincerely. I think it is appropriate and that it is not beyond the scope of this body.
I suggest that there are good reasons not to pass this bill. I suggest that, for the sake of the history and the heritage of our country, it would be wrong to pass it at this stage. I have studied psychology. I received a degree in psychology, but that was a while ago. I am not a specialist in that field and have not practised psychology. However, related to my degree were studies in anthropology and history. I know that there has never been a society in the world which has openly approved of homosexual and related orientations. There have always been taboos, restrictions and laws. If we are to enshrine an undefined phrase in our human rights codes which affect all federal legislation and will have the ramifications which have previously been well explained, then we must understand the history of our race in this country. We did not land here last week. We have a heritage.
The argument has been made that society evolves. The argument has been made that it is time to do this. The argument has been made that many terrible cases of abuse have transpired and are waiting for this legislation to protect them.
I suggest that we are doing something which has never before been thought of in the history of the human race, although some countries may have preceded us in putting legislation of this sort in place.
The second reason we should not pass this bill is for the sake of the basic unit of the family. If there is even a risk that we would undermine the fundamental unit of our society, we should not think of doing it. There are other ways. For example, we should enforce the laws we have that protect people against hate, and they are adequate if they are applied, certainly in terms of abuse and violence. Putting this in the Human Rights Act will not stop those who think they should abuse homosexuals. Any law or amendment can be a signal, but I think the signals in the direction of undermining the family are too strong to risk the value of sending a signal that homosexuals and others cannot be abused. There are better ways to do it.
Third, I suggest that you not pass this bill for the sake of the homosexual community. I have often said that I do not think those of us in the so-called "conservative" or "religious" traditions are doing anyone a favour by our silence, because the truth of the matter is that the homosexual community is demanding these changes because they sense great problems within their own community. I have with me files of literature from the gay community discussing the problems of sorting out the differences in their lives between lust, commitment, love, and various things. I often go on radio shows and am interviewed on these subjects. I make the point that if I read their literature on the radio, I can be accused of hate, but it is the literature coming from the community itself. There is a great deal of pain. I have a great deal of sympathy for the homosexual community. I have different solutions, though, for the problems they have, and I think they lie in some of the areas I mentioned earlier.
Someone wrote recently in a book that is just coming out that human rights codes should be silent on matters that have been and are still seen as outside the acceptable norms of human history and society. I agree with that.
Let me conclude our opening remarks by saying that I think that, as things transpire, this will affect marriage. The people who are demanding welcome into the world and are desirous of being totally accepted and have full participation and "equality" are also saying that they will not accept anything less than full participation in marriage. If we got to this point because of the demands, and if the human rights commission and others have responded because of those demands, then I do not believe the process will stop. I do not believe this body or the House of Commons or the process of legislation has the ability to stop it expanding in those areas outlined earlier.
I suggest that, whether international changes are being made or whether there is a minority within Canada that is demanding these changes, it is time for the input of the Canadian public and experts within the Canadian public who can talk about sociology and the other areas I mentioned.
We are deeply concerned for the homosexual community. They are, after all, suffering from some medical conditions that afflict that community. They are demanding funding to solve that. The very fact that they demanding it shows that there is something within that lifestyle that is dangerous for them and something I do not think should be endorsed in as vague a piece of legislation as this.
We are willing to take your questions.
Senator Kinsella: Towards the end of your preliminary remarks, you said something in reference to the historical norm. Could you say that again and perhaps explicate a little?
Mr. Sclater: I am not an anthropologist, but having studied related subjects in pursuit of a psychology degree and since, the reading I have done has shown there has not been a society where the homosexual has been accepted and endorsed in any form. The protections that existed in other societies were of a societal adjustment nature. We would have to look at each society to know how they handled that.
Unfortunately, of course, it is true that in some societies they were simply unaccepted or driven out. We live in a more enlightened and civilized time than that and, as I said, there are better solutions to the problem. When I said that, I had in mind that there are legitimate and successful means for many homosexuals who want to come out of the gay lifestyle to accomplish that. It is being accomplished. Many homosexuals want to leave that lifestyle. I fear that putting this into the act and what may come from that will begin to erode the ability of counsellors and others, religious or secular, to help people who genuinely want to come out of that community.
Senator Kinsella: Suppose someone was to go into the Bank of Montreal to cash a cheque and the teller says, "I think that person is a homosexual, and I do not like that because it is against my principles; therefore, I refuse to provide the service of cashing the cheque." Do you think that should be legally sanctioned?
Mr. Sclater: The refusal?
Senator Kinsella: Yes.
Mr. Sclater: No. That is just a simple service within our community. The only people that should be protected are the religious institutions that were referred to by EFC that may have legitimate reasons for not wanting to employ or otherwise, but a simple service within our community has to be protected and should be, and I believe it is covered by our laws.
Senator Kinsella: Fortunately for the judgment of the Court of Appeal or the Federal Court in Ontario, sexual orientation is read into the Human Rights Act so that one could file a complaint. This bill seeks to ensure that the legislation is explicit.
I am not sure whether I understand your position. Whether that Canadian is homosexual or not, if the teller thinks he is and is discriminating against him by denying the service, do you think there should be a law against that denial of service? Are you saying that we should be able to deny such a service, or is that unacceptable?
Mr. Sclater: I would assume the bank has its own standards for service and could not condone an employee not serving someone who came into that institution.
Senator Kinsella: Therefore, on this point, do you agree that the law ought to proscribe discrimination against the provision of that service?
Mr. Sclater: I do not know what the standards within banks and public institutions are, but I believe that no Canadians should be refused a service unless they are incapacitated through alcohol or whatever and unfit to be served.
Senator Kinsella: Is it your position that the provinces of British Columbia, Quebec, Ontario, New Brunswick, and Nova Scotia were wrong in enacting the anti-discrimination statute prohibiting discrimination on the basis of sexual orientation?
Mr. Sclater: I think it was premature for the reasons I stated. It is premature for this body to simply pass the legislation and then hopefully have something happen in the House of Commons to ratify it. I think it is premature, and I think it has suffered the same problems that I talked about in terms of definition. I think it opens the door to other measures that will be detrimental.
Senator Kinsella: We just heard the testimony of the Chief Human Rights Commissioner who says that the commission, by this provision, will not be getting into the business of defining marriage. That was his testimony before us.
Mr. Sclater: That the commission would not be getting into the business of defining marriage?
Senator Kinsella: Yes. That is not something with which they deal.
Mr. Sclater: Ms Silver, perhaps you could address that. I do not think it is a question for the commission.
Ms Silver: I do not see how the commission would avoid the issue if it is brought before them and if sexual orientation is put into the Canadian Human Rights Act. The judgment of the court in Mossop, where the issue was family status, indicates the decision may have gone the other way had sexual orientation actually been in the Canadian Human Rights Act, which is what we are attempting to accomplish here.
Despite what Mr. Yalden has said, the Leshner case and the Mossop case show that, when the issue comes from before the human rights tribunal, they will deal with it according to the law.
Senator Kinsella: However, if the issue is an issue of family status, why would they not deal with that issue on the ground of family status; or if the issue relates to marital status, meaning whether a couple is married or not married, why would they not deal with that? If it is an issue of alleged discrimination on the grounds of sexual orientation, why should it not be deal with it on that ground? Why mix up all the grounds? We would have three distinct grounds.
Ms Silver: I know that the December 9 Coalition, which includes a number of notable gay organizations across Canada including the B.C. gay and lesbian section of the bar association, has asked that grounds be cumulative. They are proposing that they not be confined to one ground. If it is a marital issue and they also feel that they have been discriminated against based on their sexual orientation, they want the grounds to be cumulative.
[Translation]
Senator Nolan: In the French version of the brief, you state - and I believe that it is your own translation -
[English]
Did you translate your own brief?
Mr. Sclater: No, we did not.
Senator Nolin: Perhaps I should look at your version of it. You say, basically, that the law already protects people from the abuses which this bill is attempting to block.
Mr. Sclater: Yes.
Senator Nolin: My question is perhaps for you, Ms Silver. Which laws already exist which can protect on these bases?
Ms Silver: The law makes no distinction. The Canadian Human Rights Act makes no distinction based on sexual orientation. At that point, everyone is considered equal. By not dealing with issues of sexual orientation, everyone is dealt with on the same basis regardless of their sexual orientation.
Senator Nolin: But that discrimination already exists. Is it your opinion that the law is adequate and we should not amend it?
Ms Silver: The court has already read sexual orientation into the Canadian Human Rights Act. In a way, introducing legislation is window dressing. As Max Yalden has told you, the courts are already accepting complaints based on sexual orientation. However, the law, the way it stands now, with the courts having said one thing and Parliament having said nothing, is a very good commentary on the position of our society. I do not think the legislature should adopt what the courts have said without going through a full, public process.
Senator Nolin: We have already argued that point this morning on other cases.
The Chair: I have a comment and a question. I am surprised that you would suggest that the debate and discussions are premature. I was very much involved in the passage of this type of legislation in the province of Manitoba. I can tell you we had two full months of public hearings. We heard from everyone in Manitoba who had any interest in this debate whatsoever. We passed very similar legislation to what we have before us today. I do not think it is appropriate for you to take the position that debate and discussion is premature.
However, I also have a fundamental question with respect to your presentation. If I hear you correctly, you say that the basic unit of the family, as you accept it, will be hurt by the passage of this legislation. I have a very personal question. How is my 30-year-old marriage with two children going to be in any way hurt by this legislation?
Mr. Sclater: Thank you for the question. The institution of the family, we believe, will be undermined by this initiative. Some of us may have gone through our childrearing time. Our marriages are secure. We do not have to worry about that. I do not know the age of your children, but I know that young people in the schools right now will be impacted by this. That is one of our primary concerns.
If the Human Rights Act says you cannot discriminate in any way then, whether we like it or not, whether this body likes it or not, it will be promoted within the education system. In fact it already is in many ways. That alarms us. We are dealing with young people who do not yet have the capacity to make that kind of weighty decision. We have groups coming into the schools to teach them that it is okay to be gay; and to teach them, from books and book titles such as "Susie Has Two Mommies," that it is okay to have whatever lifestyle people want.
That is what we mean when we say this will impact the family. It may not impact yours or mine, but I now have grandchildren. I am very concerned about them learning those things in the schools. It is one thing to say that parents can be the final arbiters in the home, but we all know that the amount of time spent by children in the educational system has a great affect on their minds and their understanding. In that sense, and perhaps Ms Silver would add something, I believe the institution of the family will be affected.
Ms Silver: I would want to pose the question to the Senate on this issue: How would sexual orientation be protected? I have three children between the ages of 13 and 5. If this bill is passed, what we teach them at home will be different from what they will learn at school. Already, there are pamphlets dealing with homophobia. Homophobia is everyone's problem. The fact is that I am not homophobic. I happen to believe that homosexuality is wrong. If that makes me homophobic, then these pamphlets are telling my children that their mother is homophobic and putting a very nasty name to something which I feel is a deeply held conviction.
We are dealing with competing rights. People have a right to live their lives the way they choose. They have a right to choose a lifestyle without suffering discrimination. But you also have the right of people to hold certain beliefs and convictions and the right to freely express those in a democratic society. That is probably the deepest concern that I have with this piece of legislation.
I do not want my kids learning in school something different from what I am teaching them at home.
Senator Lewis: If we maintain the status quo and the phrase "sexual orientation" is not added, how would you deal with the problem which you are describing in the schools?
Ms Silver: Down the road, I could see a challenge coming under section 15(1) regarding the teaching that homosexuality is equivalent to heterosexuality in moral and social value. I could see that someone such as myself could bring a suit claiming violation of my right under the Charter to my own sexual orientation, to my own religious beliefs, and to my own deeply held convictions which are protected by section 2(b) of the Charter.
The courts have defined religion and the protection of religion in such a way that it has been basically marginalized right out of the schools and out of the public square, so that protection of a person's religious belief means protection from having the belief of others imposed upon you.
Religion is the only characteristic, other than sexual orientation, which is not innate or obvious from the outside. It is something which the courts have said is deeply held, changeable only at great personal expense. In my opinion, to continue in the direction where policies and programs are now headed to protect sexual orientation would be like publishing pamphlets explaining that to hold beliefs other than those of a certain religion are somehow wrong. It is a private issue and not something that should be brought into the public sphere. It is not morally neutral.
Senator Nolin: What is your definition of respect and tolerance?
Senator Lewis: Censorship.
Ms Silver: The idea of tolerance or respect is to allow other individuals their viewpoints and choices and expect them to allow you the same insofar as it does not cause harm, first, to society corporately, and then to individuals, physically.
The Chair: Thank you very much for your presentation. Once again, thank you for remaining and allowing Commissioner Yalden to make his presentation before you.
Honourable senators, that completes our witness list for today.
Is it the will of the committee to proceed with a clause-by-clause discussion of the bill?
Senator Lewis: Perhaps we might consider this at our next meeting.
The Chair: Is that your wish?
Senator Lewis: It is a suggestion. I will not insist on it. I merely throw it out for discussion.
Senator Nolin: I think we should proceed now.
The Chair: Do other senators feel ready to proceed?
Senator Nolin: We have the briefs. Clause-by-clause discussion was planned for this afternoon. I think we should proceed.
The Chair: Senator Doyle, do you concur?
Senator Doyle: I will not raise any furious objection.
The Chair: Senator Roux?
Senator Roux: We can proceed now.
The Chair: My sense is that the committee is prepared to proceed to a clause-by-clause discussion as the original agenda outlined. I do not hear any serious objections from the group.
[Translation]
Senator Nolin: I would like to move the following motion: That Bill S-2 be adopted without amendment.
[English]
The Chair: Senator Nolin has moved adoption of the report without amendment. Is there any discussion of that motion?
Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
The Chair: Carried.
Senator Kinsella: I move that we report Bill S-2 without amendment.
The Chair: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
The Chair: Carried.
The committee adjourned.