Proceedings of the Standing Senate Committee on Legal and
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.
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
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
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
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
- 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
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
Senator Milne: Thank you. I will suggest that they read your testimony.
Senator Nolin: Were you involved in the Vriend v. Attorney General of Alberta
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.
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
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
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
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
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
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
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
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
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
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
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
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?
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.
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?
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
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.
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.
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.
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?
Ms Landolt: Indeed, we have raised this issue.
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
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?
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.
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.
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.
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
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
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
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
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
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
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
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
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
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
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
Senator Gigantès: Therefore, sterile people who marry should not have
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
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
The Chair: Interestingly enough, Senator Doyle, the question is also asked: Are
you a cultural, racial or linguistic minority person? This is a
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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?
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
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
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
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
Do you have numbers on the percentage of gays and lesbians who suffer
discrimination either in employment, accommodation or in the obtaining of goods
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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.
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?
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.
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.
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
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
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
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
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:
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
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
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
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
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.
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.
- solemnization of marriage and marriage. Senator Beaudoin will cite the proper
sections of the Constitution of 1867.
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
Mr. Sclater: That the commission would not be getting into the business of
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.
Senator Nolan: In the French version of the brief, you state - and I believe
that it is your own translation -
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
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
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,
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
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.
Senator Nolin: I would like to move the following motion: That Bill S-2 be
adopted without amendment.
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?