Proceedings of the Standing Senate Committee on
Issue 5 - Evidence
OTTAWA, Wednesday, November 19, 1997
The Standing Senate Committee on Legal and Constitutional Affairs, to which was
referred Bill S-5, to amend the Canada Evidence Act and the Criminal Code in
respect of persons with disabilities, to amend the Canadian Human Rights Act in
respect of persons with disabilities and other matters and to make
consequential amendments to other Acts, met this day at 3:30 p.m. to give
consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
The Chairman: We are pleased to have Professor Jackman with us this afternoon
who will now make her presentation.
Professor Martha Jackman, Faculty of Law, University of Ottawa: Thank you for
inviting me to appear before your committee. As a professor of constitutional
law at the University of Ottawa in the Common Law section, I have a clear and
obvious interest in this bill. After some brief opening remarks, I will be
pleased to entertain any questions you might have.
The Canadian Human Rights Act is the legislative cornerstone of human rights in
Canada. The act guarantees equality of opportunity for all Canadians without
discrimination. The act applies to the federal government as an employer and
also as a provider of services. Perhaps more importantly, the act applies to
those private and commercial entities which are regulated by the federal
government including, for example, the telecommunications sector, the banking
sector, the armed forces, penitentiaries, et cetera. Any federally regulated
industry is subject to the Canadian Human Rights Act and must comply with its
requirements respecting non-discrimination.
The Canadian Human Rights Act is also important because it stands as a clear
expression by Parliament of Canada's international human rights undertakings.
Canada has always been a very active participant in UN human rights efforts,
from the UN declaration through to the adoption of the international covenants
on political and civil rights, on social, economic and cultural rights, and,
most recently, of course, the Beijing Declaration. The Canadian Human Rights Act
provides an important and concrete expression of that commitment for the
The Canadian Human Rights Act is also important in terms of its influence on the
interpretation of provincial human rights codes and the equality provisions of
the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada has
drawn heavily on federal human rights code jurisprudence in interpreting
section 15, and this has been extremely beneficial for equality rights law in
While the Canadian Human Rights Act is important law, it is also sadly in
serious need of review. I am sure I am not the first witness to tell you this.
I commend the government for bringing this bill forward, in particular, for
including a new recognition under the act of multiple grounds of
discrimination. Complainants will no longer be obliged to fit themselves into
specific pigeonholes because multiple discrimination is expressly recognized.
In this way, the act will be very progressive.
Section 15(8) of the revised act would also expressly recognize that both direct
and indirect discrimination are prohibited. This is also important. The
creation of a permanent, full-time tribunal is a great advance. As well, the
requirement under the bill that the commission report directly to Parliament
rather than through the Department of Justice enhances the stature and
independence or perception of independence of the commission and the act.
Lastly, but very importantly, the bill addresses a number of disability-related
concerns under the federal Criminal Code and the Canadian Human Rights Act.
I applaud all of these provisions in the bill; however, I have two main
criticisms of the bill, and I will discuss those with you today. First, I will
discuss what I consider to be the very negative impact of the bill on Canadians
living in poverty and, second, I will briefly address the issue of including
costs as a limitation on the duty to accommodate under clause 15(2) of the
bill. I will explain each of these concerns in turn.
In terms of the impact of the bill on poverty and people living in poverty, as
you are well aware, the Senate has a long and commendable history of concern
and action in the area of poverty. The 1971 report of the Special Senate
Committee on Poverty, "Poverty in Canada", was a landmark report. In
1991, the Standing Senate Committee on Social Affairs, Science and Technology
published its report "Children in Poverty: Towards a Better Future."
This was also an extremely thorough and well-researched report with concrete
and important recommendations. The Senate can take credit for the fact that it
was one of the first bodies to begin to think in terms of a social deficit --
the long-term social costs of poverty for Canadians. In fact, the committee
commissioned research to study this issue. In that regard, it was a pioneering
piece of work.
Most recently, your colleague Senator Erminie Cohen wrote a report called "Sounding
the Alarm: Poverty in Canada." In the preface to her report, she refers to
the work of many other individual senators in the area of poverty. As well, in
the preface to her report, Senator Cohen states that in the 25 years since "Poverty
in Canada" was published by the Senate, the face of poverty in our country
has aged, not gracefully or with dignity, but through deprivation and hardship,
hastened in part by government policies that do not reflect a real
understanding of the social and political consequences of poverty.
I would argue that this bill, in terms of what it does not say, is an example of
this type of neglect or perhaps wilful blindness of the political, legal,
social, and economic consequences of poverty in Canada and, perhaps even more
importantly, the increasing political, social, economic and legal
marginalization of the poor as individuals and as a group within our community.
Most telling is the fact that the Canada Human Rights Act, as it is presently
drafted and in its proposed revisions, is meant to address the most egregious
forms of disadvantage and inequality which Canadians face, but the bill does
not include any reference to poverty. Poverty clearly underlies and exacerbates
the forms of disadvantage which are expressly recognized in the bill, but
poverty also creates its own distinct disadvantage.
My first submission to your committee is that you amend the bill to include
poverty or social condition among the prohibited grounds of discrimination that
are included under section 3(1) of the act. I will take a few moments to give
you some of the reasons why I consider it to be appropriate and indeed
necessary for your committee to take this step to include poverty as an
expressly enumerated prohibited ground.
First, and most importantly, is the distinct and unique role which the Senate
plays within our legislative branch. It will be no surprise to you that many of
the individuals and groups working in the human rights area were pleased that
the executive branch decided to send this bill to the Senate before it went on
to the house. The Senate is recognized as being far more immune to the political
pressures which members of the House of Commons face in reviewing and amending
federal bills. In particular, I think it is fair to say that there is an
attenuated relationship between the Senate and the executive branch of
government, so that the dominance of the legislative branch by the executive
that we see in the House of Commons is not quite so visible in the Senate, and I
think that Canadians can have some reasonable expectation the Senate will act
more independently when reviewing federal bills. This is important to the
individuals and groups which will be appearing to argue for changes to the
The next reason I think it is important and appropriate for the Senate to act in
this regard is, as I mentioned earlier, the political marginalization of the
poor in Canada at the moment. Over the past decade, the House of Commons has
focused almost exclusively on the problem of the fiscal deficit. It has
entirely ignored the issue of the social deficit, that is to say, the extent to
which cutting social programs and services in fact creates costs for society
which we will indeed have to pay for in financial terms further on down the
The poor are not well represented in Canada, neither in the House of Commons nor
here in the Senate. However, because of the pressures which elected members of
the House of Commons face, it is highly improbable that the House will take an
initiative on poverty issues. The poor, as I mentioned, are not well
represented -- in fact, pretty much not represented at all -- in the House of
Commons, nor are they well represented or well served by the executive branch.
If we rely on the House of Commons for action in this area, I think we will be
In addition, Canada has undertaken a number of important human rights
undertakings in the area of social and economic rights. The year 1997 was
recognized as the international year for the eradication of poverty and the
beginning of the international decade for the eradication of poverty. The
executive and the House of Commons have done little to mark this event.
In 1993, the UN committee reviewing Canada's compliance with the international
covenant on social and economic rights considered Canada's performance in this
area. In its final report, the committee noted the disappointing lack of
progress in Canada, a very affluent country, in the decade since the adoption
of the international covenant and its ratification by Canada, in combating
poverty, and, in particular, in combating poverty among the most vulnerable
groups in Canadian society, including sole-support mothers and aboriginal
In its recommendations in the final report, the UN committee pointed to the need
for concrete legislative action to better recognize the rights of the poor
under Canadian legislation. Clearly, the Canadian Human Rights Act would be an
important area in which this legislative neglect of the rights of the poor
could be remedied.
Furthermore, protection of the poor against discrimination is already provided
for under several provincial human rights codes in jurisdictions of varying
ideological views. Under the Quebec Charter of Human Rights and Freedoms,
social condition is already recognized as a prohibited ground of
discrimination, and the Quebec commission has interpreted the idea of social
condition as including receipt of welfare assistance and source of income, so
it has been read broadly as a anti-poverty provision. The Newfoundland Human
Rights Code also protects against discrimination on the basis of social
condition. The Saskatchewan, Manitoba and Nova Scotia human rights codes
protect against discrimination on the basis of source of income; and the Ontario
code protects individuals in receipt of social assistance against
discrimination on the basis of receipt of social assistance. Several provinces
have already acted to recognize discrimination against poverty, so recognition
under the federal human rights act of social condition as a prohibited ground
would not be a radical departure.
Importantly, as a constitutional scholar I probably say most importantly, I
would argue that this amendment of the Canadian Human Rights Act is clearly
mandated by the Canadian Constitution. Section 15 of the Canadian Charter of
Rights and Freedoms provides all Canadians with a right to equal protection and
equal benefit of the law without discrimination on the basis of disadvantage.
Lower court, appellate, and supreme court interpretation of the Charter make it
clear that poverty will be recognized as a non-enumerated ground of
discrimination. One can argue in a doctrinally conservative way that the
failure by the Canadian Human Rights Act to protect poor Canadians against
discrimination deprives them of equal benefit of Canadian human rights law and
therefore violates the charter.
Section 32 of the charter makes it clear that the charter applies to Parliament
and to the Government of Canada; and section 52 provides that the Charter, as
with other parts of the Constitution, are the supreme law of Canada. I would
argue that there is a duty on the executive and legislative branch to comply
with the Charter without waiting for it to be enforced through litigation. This
is particularly true from the perspective of poor people who lack the resources
and means to bring forward the type of litigation which would be necessary to
have the courts dictate to the legislature that the act needs to be amended.
This committee is in an excellent position to save poor Canadians the hardship
and heartbreak of trying to litigate for this type of amendment, as well as in
a good position to save Canadian taxpayers the money which the Justice
Department would spend in trying to defend what is clearly an unconstitutional
law as it presently stands.
I know that the Justice Department has suggested that they will be engaging in a
full-scale review of the act. One might ask the question: Why not leave this to
a full-scale review? I must express some scepticism about this promise. For
over a decade, the federal government has been promising to amend the Canadian
Human Rights Act. This is the first time that proposed legislation has actually
been introduced in the house.
I was involved in some of the negotiations around amending the bill before the
federal election, and there is no question that there was a lot of politics and
a lot of electioneering going on with the pre-election bill. A number of things
were not included in the bill because there was simply a perception on the part
of the Justice Department that these would not be big sellers in the federal
With the very crowded legislative agenda that currently exists and the fractious
nature of the house, I and other experts in human rights law, as well as the
groups which work in this area, have absolutely no optimism that a full-scale
review of the act, if it occurs, will actually result in new legislation being
introduced in the house before the next election.
It is my view that this is not simply the first kick at the can, but potentially
the last kick at the can for the next decade. For poor people, to delay on this
issue would be not only unconstitutional in its implications, but also terribly
unfair. Poor Canadians are already facing well-documented discrimination in
areas of federal jurisdiction.
I would like to refer in particular to a June 1996 report to Industry Canada by
the ACEF Centre in Montreal which carefully and thoroughly documented the type
of discrimination poor Canadians currently face in their access to banking
services, an area of clear and exclusive federal jurisdiction. Unless the
federal government acts in this regard, poor people will continue to face this
type of discrimination and other discrimination under Canadian law.
As I mentioned before, the Canadian Human Rights Act has an important symbolic
role. If the Senate acts to amend this bill in the way I am suggesting, it will
provide a further spur to those who are lobbying for equivalent changes in
other provincial human rights codes.
There is also an important relationship between the Canadian Human Rights Act
and the Charter. Action by the Senate to amend the bill so that the Canadian
Human Rights Act explicitly recognizes social condition as a prohibited ground
will also influence the interpretation of Canadian law more generally in terms
of the equality of rights of the poor. This gesture will be a concrete action by
the legislature, the Senate in particular, to respond to the report and
recommendations of the UN committee which looked at this area.
In conclusion on this issue, poverty is an important human rights issue. It is
increasingly important as the poor are increasingly marginalized in Canadian
society. If the Senate acts to amend the bill as I am suggesting, poor people
will be comforted in feeling that their voice can be heard in Ottawa,
notwithstanding their lack of electoral representation.
The last question I would ask is: Why not amend the bill? It is always open to
the executive to explain to or convince the members of this committee why this
discriminatory feature of the Canadian Human Rights Act must be maintained. I
think the onus should be on the executive to explain to you why the act should
remain discriminatory and unconstitutional in regard to the rights of the poor.
The second submission I will make will be shorter and quite direct. You will
hear this from other experts and groups who will appear before you. It relates
to the proposed new section 15(2), specifically, the duty to accommodate. As
you know, once a complainant succeeds in proving that he or she has been
discriminated against within the meaning of the act, this discrimination must be
remedied unless, pursuant to 15(2), it can be shown that remedying the
discrimination would result in undue hardship.
In existing human rights law, the notion of undue hardship entails a high
standard of justification. Clause 15(2), as it is presently formulated,
introduces a new and disturbing qualification to the notion of undue hardship.
Clause 15(2) proposes that one can argue undue hardship in terms of the cost of
remedying discrimination, and qualifies the existing right under the Canadian
Human Rights Act not to be discriminated against with a caveat that
discrimination will be tolerated if it would be too expensive to remedy it.
We must ask the question: What will be the implications of this new
qualification on a well-understood and well-established right to
non-discrimination? I would refer you to the recent case of Elderidge v.
British Columbia (Attorney General) decided by the Supreme Court of Canada. As
you may recall, the Supreme Court of Canada declared in the recent Elderidge
decision that failure to include sign language interpretation services as part
of the health services that are subsidized by the Province of British Columbia
violates the equality of rights of the poor in the sense that it discriminates
against them on the basis of their disability. In the Elderidge case, the
Attorney General of British Columbia and all the government interveners in that
case went to the Supreme Court and said that the court should refuse to grant
the Elderidges' equality claim because it would be too expensive and have
severe financial repercussions for health care spending in the provinces. In
the Elderidge case, the Attorneys General made this argument in spite of the
fact that there was clear evidence accepted at trial that the cost of providing
sign language interpretation services to the deaf in B.C. would cost $150,000 a
year, this in a provincial health care budget of $6 billion. Notwithstanding
what appeared to be a trivial amount of money and a clear and egregious
violation of the equality of rights of the deaf, every Attorney General who
appeared before the court argued that the claim should be denied because it
would be too expensive to grant -- that it would entail undue costs for the
Under the Canadian Charter of Rights and Freedoms and the jurisprudence which
has evolved under the Charter, and referring directly to Canadian human rights
jurisprudence which does not recognize cost as a legitimate factor for
depriving an individual of his or her equality rights, the Supreme Court of
Canada rejected the Attorney General's arguments. They held that, once a claim
of discrimination had been proven, the Elderidges were entitled to a remedy,
and they rejected the idea that asking the state to spend any kind of money was
an illegitimate exercise for the courts.
In this context, the impact of the proposed section 15(2) of the Canadian Human
Rights Act is unclear because it entrenches a consideration which, until now,
the courts have rejected. The situation which 15(2) creates is especially
problematic from the perspective of poor Canadians. In most cases, they are
harmed not by some discriminatory action by the state, but by the failure of the
state to act to ensure their equality. In almost every claim that one could
imagine a poor Canadian raising under the Canadian Human Rights Act, the remedy
will have some kind of cost implications.
I would like to go back to the situation of the banks. What did the banks argue
when presented with evidence of their discriminatory practices in regards to
poor people? They say it would be costly for them -- too costly to provide
equal access to banking services for the poor.
Under the proposed section 15(2), the door is wide open for that kind of
justification. Not only must a complainant argue that he or she has been
discriminated against, they must also argue that the remedy they are seeking
will not have cost implications. That is simply not realistic and is contrary to
equality rights and human rights jurisprudence up to now in Canada.
I would request, and I believe a number of other human rights experts and groups
will also be requesting, that you strike out the qualification of cost under
clause 15(2) of the bill. If you are unwilling to actually strike out cost as a
consideration, at a minimum, your committee should qualify the notion of cost
with the expression "excessive" so that it remains for the entity
which has violated the right to equality or which has discriminated to prove
undue hardship in terms of excessive cost and not simply any cost.
As Senator Cogger has already mentioned, clause 15(3) of the bill also raises
real concerns. It provides cabinet with a regulatory power to define undue
hardship. This is completely anomalous in human rights legislation. It takes
the power to define undue hardship away from the courts and away from the Human
Rights Commission and places it in the hands of cabinet. One can easily imagine
the concerns raised by this. If the federal government looses a human rights
complaint, it simply adopts a regulation to counter the effect. This is a
regulatory power in the human rights area.
This is of great concern. Instead of a public review, debate and discussion of a
bill before your committee in the Senate and then before the House of Commons
and then a committee of the House of Commons, we would simply have cabinet
If your committee considers that such a power is necessary, or if the executive
is able to convince you that such a regulatory power is necessary, surely, at a
minimum, it belongs to the Human Rights Commission and not to the cabinet --
that is to say, it belongs to the entity which actually has expertise in
defining notions like undue hardship.
I will conclude by saying this is a very important bill. It is a bill which is
sorely in need of review. Human rights experts and groups are hopeful that this
committee will take its role seriously in reviewing the bill and in listening
to the proposals that are put you to you for amendments, because we are not
confident there will be any kind of second chance on this bill in the next
Thank you for taking the time to listen to me. I would be happy to answer any
questions you might have.
The Chairman: Thank you, professor.
Senator Kinsella: Thank you for your excellent presentation, Professor Jackman.
We must look at this bill from the parliamentary standpoint and the timelines of
Parliament. We had a debate at second reading on the bill, and many of us
support the principle of the bill. The bill would not be in committee had we
not voted to support the bill in principle. However, my inclination is that the
committee should complete its work on this bill and have third reading on the
bill in the Senate on December 10, which is International Human Rights Day.
December 10, 1997 will mark the beginning of the 50th anniversary of the
proclamation of the Universal Declaration of Human Rights, and it would be a
great contribution by this chamber in Parliament if we were able to achieve
Having said that, it means that this committee and our colleagues who report
back to the Senate would have to remain focussed on what has been presented.
There are areas within the context of the bill and the model of the bill with
which we can deal.
Having said that, I would be enthusiastic to consider the Canadian Human Rights
Act and the role that the Human Rights Commission could play with respect to
both the international covenants. As you know, in Australia, the Australian
Human Rights Commission, the national commission, has the role of promoting the
human rights contained in both the international covenants.
What do you think of the idea of the Canadian Human Rights Commission receiving
the mandate to promote and enforce, domestically, the provisions of both the
international covenants, in particular the international covenant on economic,
social and cultural rights which speaks quite directly to the matter of
poverty, and which contain an outline of human rights, notwithstanding the
opinion of the report of the joint committee on the Charlottetown Accord
chaired by our colleague Senator Beaudoin and Madam Dobbie, which at page 83
said that economic, social and cultural rights were not really rights but
privileges? You will find that in that report. In debate we pointed out that, in
the covenants, they are human rights.
There is a tremendous need for Canadians to understand, first, that the rights
in covenants are human rights and, second, how we can use that international
standard which was agreed upon by the Government of Canada with the concurrence
of every jurisdiction in Canada in 1976.
My question relates to your general concern on the issue of poverty. What do you
think of approaching it in that way?
Ms Jackman: Of course I would be thrilled to see the commission's mandate
expanded in that regard, although I would see the two steps as being
What is clearly missing in our existing federal code is social condition in
terms of the equality rights that are contained in the international covenants.
There is a debate in Canada about the justiciability of social and economic
rights. My former colleague Senator Beaudoin and I disagree profoundly on this
issue, and we have done so in the past.
I am a strange advocate of recognition in Canada of social and economic rights
-- the rights of the poor. I believe that right now we have a two-tier system
of human rights protection which is very disadvantageous to poor people. I know
that your committee and the Senate would receive huge support from anti-poverty
groups, women's groups and other equality-seeking groups if you proposed that
kind of measure. At the moment, not only do we not have any implementation
mechanism for the covenant, we have no domestic avenue for review. Currently,
there is no forum in Canada for the notion of a petition or request that
something at least be examined. If you are talking about a civil or political
right, you can litigate, but if you are talking about a social right, a right to
food, for example, which is being sorely tested in Canada at the moment, there
is absolutely no avenue, and this marginalizes the issues which are most
important for the most disadvantaged Canadians.
Senator Kinsella: I agree with you. I think that the Human Rights Commission,
under that type of model, would be playing the role of a social auditor.
Senator Gigantès: Can the Human Rights Commission, in your view, play the
role that Senator Kinsella is suggesting in the absence of actual legislation
recognizing those rights and mandating the commission to apply that particular
Ms Jackman: The commission cannot unilaterally enforce. Because of our division
of powers in Canada, the enforcement of many of the rights that are contained
in the international covenant require provincial legislative action. However,
the commission can examine and report.
I would like to give as an example the repeal in the 1995 budget of the Canada
Assistance Plan. This was a very big step backward in terms of our compliance
with the international covenant. Again, there was no forum for bringing these
concerns to the attention of the legislatures or the public. Most Canadians
have no idea that the federal government repealed the only social and economic
rights implementing mechanism that we had.
Even though the commission obviously cannot legislate, and nor can it enforce
the rights in terms of implementing legislation, I think the investigative
reporting, public education mandate, which the commission already enjoys on
paper, would be most appropriate in this area.
Senator Kinsella: Your suggestion is that we add to the proscribed grounds of
discrimination contained in the present Human Rights Act "social
condition," "source of income" or some similar ground as was
done in Newfoundland and Quebec.
You also said that it is probably already covered. Are you referring to the
situation in the Haig case where the court said you must read certain things
into the Canadian Human Rights Act?
Ms Jackman: Within the next few years, if the legislature does not act, there
will be litigation on this. It is, to my mind, a real shame that poor Canadians
are forced to go to the court to have a right recognized which should so
clearly exist. However, the device would be to argue that failure to include
social condition in the statute, which is meant to guarantee the equality rights
of poor people not to be discriminated against, is a violation of the section.
I can say, from a very conservative, doctrinal position, that this case will be
victorious. However, it will take a lot of money, time and hardship from a
constituency that has no money and no time.
Senator Gigantès: But much hardship.
Senator Beaudoin: I wish to say, first, that I am glad to be back at the legal
committee. However, at the same time, I have some regrets because I have been
misunderstood in certain stances I have taken.
I am in favour or economic and social rights, and that they should be defined as
rights and not privileges, as Senator Kinsella has said. Our problems arise
when we try to define them. To define economic rights is probably somewhat
easier than defining social rights but, nonetheless, definitions always create
That being said, I was most impressed by your suggestion and I agree with the
principle that the word "poverty" should be included.
Senator Gigantès: It is there. Poverty is with us all the time.
Senator Beaudoin: Poverty is with us, but the word is not included in the
How will this be dealt with in practice by a court such as the Supreme Court? It
is one thing to say that we should not discriminate on the basis of poverty,
but how can we make that work in practice?
Ms Jackman: Forgive me for suggesting that you did not support social and
economic rights. It is the justiciability issue where we probably disagree.
Senator Beaudoin: Yes. I always say that it is easy for a court of justice to
rule on freedom of expression, freedom of religion and so on, but when we are
concerned with the definition of social rights it is quite another story. If
that is what you meant, I agree with you.
Ms Jackman: Perhaps I can go back to the banking example, although I will also
take an example where the federal government is providing a service, because
there were some real concerns about that.
My banking example is one where a person shows up at the wicket with his or her
welfare cheque and asks for it to be cashed. The bank teller will ask the
customer if he or she has an account at that bank. If the person does not have
such an account -- and it may be because they do not have adequate
identification, or because they move a lot, or because they do not like going to
any bank because they may feel intimidated -- the teller may refuse to cash the
cheque or, alternatively, the teller may say that the bank will cash the cheque
but insist that the person open an account. They may say, "Because we do
not know you, and because you look a little `iffy', we will hold your cheque for
four or five days."
For a person with a welfare cheque as a sole source of income, this creates
difficulty. What do these people do? They go to cheque-cashing services where
they must pay a 5 per cent to a 15 per cent premium, or they go to the Loeb
store and they cash their cheque by buying groceries. Essentially, they are
deprived of services which we all take for granted -- a bank account, ready
access to our money, and a cash card.
I am recommending that the expression to be entrenched should be "social
condition" because the Quebec commission has already examined this
concept. It has been entrenched in the Quebec Charter of Human Rights for some
time. It has a well recognized meaning. It is also found in the Newfoundland
code. It is not a new expression. To entrench "poverty" might raise a
few more concerns, but "social condition" is an expression which has
a well-understood meaning.
A potential banking client could argue before the federal commission, with the
evidence of the report by ACEF Centre, that there is discrimination by the
banking industry in the provision of banking services on the basis of social
condition. If you are poor, you get a lesser quality of banking services. In
fact, in many banks, you get no service.
That would be a clear example. Then the bank would have to justify to the
commission, before a tribunal, why it would be an undue hardship for the bank
to provide the same quality of services to poor people that we take for granted
as middle-class Canadians.
The Canadian code does allow now, with this proposed section 15.2, a section-1
type of debate between the entity accused of discrimination and the tribunal or
the victim where they discuss how certain actions can be justified. In the case
of banking, it would be very difficult for banks to argue that it would be an
undue hardship to provide equal banking services. They just would prefer not to
do it; they are inherently conservative.
In terms of the government as a provider of services, obviously the issue
becomes more difficult. I would go back to the most radical example I can think
of -- the repeal of the Canada Assistance Plan. The Canada Assistance Plan
provided that the federal government would only transfer welfare moneys to
provinces if they ensured that people receiving welfare were receiving it
because they were in need. It did not involve any other kind of investigation
about whether they were a good parent or whether they should be on workfare
instead. They must be entitled to welfare based on need in order for the
province to be eligible for the transfer of funds.
One might argue that the repeal of the Canada Assistance Plan amounted to a
policy, a legislative fiscal choice, that discriminated against poor people.
Senator Beaudoin: I agree with that. Your explanation seems to be quite logical.
Is the word "poverty" found in any other statute? Has it been
construed in the way you are suggesting?
Ms Jackman: Because "poverty" is not included in any provincial code,
the answer is no, but "social condition" has been invoked in two
cases in Quebec. One case could cover a residential tenancy situation where
someone wants to rent an apartment but is denied tenancy because he or she is on
welfare. The landlord may refuse to accept the welfare recipient as a tenant,
even though he might be able to provide a damage deposit and have a good track
record as a tenant. The landlord simply may not want to have a welfare
recipient in his building.
Senator Beaudoin: That is discrimination.
Ms Jackman: That is not recognized under the federal code.
Senator Beaudoin: If you enshrine the word "poverty," it would be
included, or even the term "social condition."
Ms Jackman: In Quebec, it has been read as discriminatory for a landlord to deny
tenancy just by virtue of the fact that the applicant may be a welfare mother.
That is discriminatory. It is intuitively correct for us to say that.
Senator Beaudoin: You have convinced me that it will be a little more difficult
to remedy the situation as it relates to banks.
Ms Jackman: This committee of the Senate has been charged with the
responsibility for reading and revising this bill before it is passed. Amend
the bill as I am suggesting and then have the Justice Department or the house
explain to you why the Canadian Human Rights Act, should continue to deprive
poor Canadians of the same guarantees held by every other group. As I say, the
most egregious forms of disadvantage -- race, sex, sexual orientation -- are
protected. The poor are not.
Senator Beaudoin: Are you suggesting that as an amendment to this bill?
Ms Jackman: I am asking that you amend section 3.1 of the bill to include "social
condition" in the list of proscribed grounds. We would have race, sex,
sexual orientation and social condition explicitly in the bill. I do not
believe that this is a radical thing for this committee to do.
Senator Pearson: I agree with Senator Beaudoin that the inclusion of "social
condition" makes a lot of sense. I have the same problem, from a practical
point of view, of what it would actually mean in a federal human rights act.
Banks, of course, come under federal regulation. As to your example of the
difficulty in cashing a welfare cheque, I think that attitude makes no sense
because a government cheque should be honoured by everyone.
However a general refusal to cash cheques can happen to anyone. It has happened
to my children; some of them are poor and some are not. I have not viewed it as
a discrimination against any group of people. I am speaking of cheques
generally, and not of government cheques. There is a balance there where the
regulations presumably apply to everyone across the board.
Can you give me some practical examples of what difference we would make in the
lives of Canadians by amending the human rights act this way?
Ms Jackman: I would urge you to read the well-researched report by the ACEF
Centre. Consider the percentage of poor people who do not have bank accounts
and the percentage of poor people whose cheques are routinely refused as
opposed to being refused from time to time. Look at the percentage of poor
people who are forced to use cheque-cashing services and to pay a big premium to
The banking example is very well documented, and I will provide to the clerk or
the researcher the reference for the report. It was submitted in French and
English to Industry Canada who, I am sure, can make it available to your
committee. It provides a lot of not only anecdotal but some very strong
empirical evidence relating to the banking sector.
Senator Pearson: That would be helpful.
Ms Jackman: In terms of a practical example, that is one where the evidence does
exist and it is clear.
Apart from the practical significance in terms of individual poor people going
to the commission and complaining about individual acts of discrimination, that
is important, I have also made the point about the leadership and symbolic
influence of the Canadian Human Rights Act. It is the cornerstone of Canadian
human rights law. It interacts with the Charter. It is an expression of our
commitment to our international human rights guarantees; and it has a big hole
in it. The hole is the recognition of the rights of poor people not to be
discriminated against because they are poor.
Senator Pearson: We all accept that particular point. The difficulty is how one
goes about it. I understand what you have described in the banking examples you
have given, but I know of many people with lots of money whose cheques have not
been cashed. That has happened to me.
Ms Jackman: The onus is on the complainant to prove discrimination. If a poor
person chose to go to the commissioner, or if a group like ACEF Centre which
represents poor people decided to go to the commission, they must prove, in
accordance with legal principles under the act, that the discrimination has
occurred. That onus is on any complainant of discrimination.
Senator Pearson: Do you have other examples to give us, apart from banking
Ms Jackman: Telecommunications is another federally regulated sector. We take
access to bank cards, cable TV and telephones for granted. Cable TV and
telephone are two other areas in which people living in poverty have much more
difficulty than middle-class people do in getting services. Telephone is a good
Senator Pearson: What do you mean?
Ms Jackman: I do not know how long it has been since you went to the Bell phone
centre to get your phone, but the kind of proof of financial viability that you
have to provide in order to get telephone services, like any other municipal
utilities, can be onerous.
It is not the written policies of the service provider, it is the discretion.
There was litigation in Peterborough about gas company practices as they
related to asking people to provide a record of being a customer. If you are
unable to do that, you cannot get service.
In any kind of telecommunication service -- and there has not been the research
to document it, but there is anecdotal evidence -- poor people, as a rule, do
not get the same quality or access to services as middle-class Canadians. This
discrepancy is a result of not only their economic circumstances, but also
because of stereotyping about who they are and why they are what they are.
Senator Cohen's report bears eloquent witness to what I am describing.
Senator Pearson: It is helpful if one is making a case to have a few very
concrete examples that people understand as real discrimination that could be
taken to court.
Senator Watt: Do you have any information that would enlighten me as I try to
figure out where the aboriginal people fit into this scenario?
Ms Jackman: As you know, the Canadian Human Rights Act, does not apply to the
Indian Act. I know there were some discussions about that and some concerns
expressed about the failure of the act to apply, because that is an area of
federal jurisdiction which one would ordinarily expect to be covered by this
I do not hold myself out as an expert in suggesting to your committee that you
act one way or the other. However, in terms of the consultations that took
place with the Department of Justice when this bill was at the draft stage, the
failure of the act to extend to the Indian Act and to Indian people was an
issue that was raised.
That would be a very interesting question for your committee to ask of the
justice officials. This is potentially another omission in the bill where,
again, there was some suggestion that, perhaps, in a second phase omnibus
review of the bill, this would be addressed. For the same reasons, I do not
think poverty will see the light of day in this government's mandate. I would
not expect the aboriginal issue to be addressed, either. It may be one that you
would want to pursue, because it is another serious question mark in the act.
Senator Watt: Do you have any information on the aboriginal community being
recognized as a people by the United Nations?
Ms Jackman: I know that indigenous groups representing indigenous people in
Canada and in other jurisdictions have mounted an effective lobby at the UN
level for the adoption of an international covenant on the rights of indigenous
people. However, this is not an area about which I can say much.
Senator Watt: Do you have any information as to whether or not that issue has
been advanced, or whether it remains in the predicament of not being able to be
Ms Jackman: To this point, the covenant has not been adopted. Indigenous people
are lobbying strongly for it. There is much support in the sister communities
in which I work for equality-seeking initiatives.
Senator Watt: Coming to the point that you raised about this coming under the
federal jurisdiction, this section allows the Government of Canada to
administer the interests of the aboriginal people. That is the subject.
Since this bill does not accommodate race or sex, how does your proposal assist?
Can this aid the aboriginal people in that they could be classified as coming
within certain social conditions, be it poverty or something else? Would that
be one step towards being able to address the issue you raised, even if you do
not spearhead it as an aboriginal issue? Is that your interpretation?
Ms Jackman: Section 3(1) protects individuals on the basis of race, as well as
ethnic origin. Aboriginal people are protected from discrimination based on
As you know better than the rest of us, aboriginal people have suffered economic
disadvantage in disproportionate numbers. Aboriginal people are amongst the
poorest people in Canada. An area that the UN committee reviewing Canada's
compliance with the social and economic covenant noted was the failure of
Canada to address poverty amongst aboriginal people.
To the extent that poor people suffer discrimination, aboriginal people suffer
twice the discrimination. If social conditions were added as a prohibited
ground of discrimination under the act, then the proposed section 3.1 would be
very useful because aboriginal persons could claim that they have been denied
banking services. It may be because a person is of aboriginal origin or because
they are poor.
The proposed section 3.1 recognizes multiple grounds of discrimination and would
make it much easier for an aboriginal complainant.
Senator Gigantès: My heart is with you but we will be faced with
disciples of that famous Irish political economist Murphy whose golden rule is
that those who have the gold, rule. The bankers will come and say, "Are
you asking us to lend money to someone who has absolutely no tangible asset
when we cannot have any guarantee of recovering this loan?" That is my
My second point is that they will say, with modern means of photocopying and
digital imaging, making false welfare cheques is a breeze, and a really clever
guy can hack into the list of people who have been given welfare cheques and
add names. They will ask why we are asking them to take such risks at the
expense of the shareholders of their banks? How will we respond to them?
Ms Jackman: You have two answers on both points. On the first point, the the
effect of amending the bill would be to prevent the banks from discriminating
against poor people. It is not discriminatory for a bank to say, "I will
not lend you money if you have no ability to show how you will pay it back."
What the banks are doing at the moment is denying poor people services that
everyone else receives.
I am absolutely with you. I would fully expect the banks to make that argument
if they got wind that the Senate was seriously considering this. That would be
spurious. What is prohibited is discrimination.
As to fraud, again this is an issue of undue hardship. Presumably the banks take
all kinds of steps to protect themselves against fraud and fraudulent cheques.
The issue is this: Why is the step they take in relation to fraudulent welfare
changes to simply refuse to cash them? Again, the onus goes to the bank to give
you evidence that this is rational rather than based simply on stereotypes and
the easiest way.
Senator Gigantès: I see your point.
What about another ground for discrimination that appears in international
politics? There are places in the Maritimes and in Quebec where people are
fired from their jobs because they do not belong to the party that has just
taken power. We have had a whole epidemic of that since the PQ took power in
Quebec. In some Atlantic provinces, it is well known that, when the government
changes, there is a wholesale exit from the public service, down to the lowest
clerks and the people who pave the roads. They will be replaced by others.
Would you favour politics to be included?
Ms Jackman: Political conviction is a well-recognized ground in many
international and domestic treaties. A person is fortunate if that happens to
them in Quebec, because it is the only province in Canada where there are
guarantees against discrimination on the basis of political conviction.
Senator Kinsella: It happens in Newfoundland as well.
Senator Gigantès: It takes place, though.
Ms Jackman: At least we have a statutory human rights protection. I would be in
favour of that, of course, living in Ontario as I do and not sharing the
ideology of the particular party in power. However, my particular axe to grind
at the moment is not that one.
Senator Gigantès: President Roosevelt was against welfare and for
workfare. He was well organized. The city of Key West was a collection of
smelly shacks. Through workfare, it is what it is today. People with the
necessary specialties who were unemployed were sent there with engineers and
whoever, and they did a beautiful job. That was workfare. They were not to be
given any money unless they participated in that particular job.
I am not talking of trying to impose this on the sick or on single moms.
However, why should healthy single males not be told, "You cannot have
welfare because we have some decent projects where you might learn some manual
Ms Jackman: In every jurisdiction in Canada, the waiting lists for employment
opportunity programs exceed the spaces available. People on welfare want to
work. The problem is that the available programs are too few in number and
I think it is fair to say that the C.D. Howe Institute agrees that, when you
have governments imposing workfare as a blanket requirement for ideological
reasons, you are guaranteed to have an underfunded, ineffective program that is
just busy work and does not permit people to get back to work. That is the
problem with it. The good programs have waiting lists far longer than the
programs can accommodate.
Senator Cogger: If it is your view, it is not discriminatory for a bank to
refuse credit to someone who cannot show ability to repay, would you not then
agree that simple services, such as phone service, are a form of extension of
credit? The minute Ma Bell installs a phone in someone's home, nothing prevents
that person from running up a bill of several thousands of dollars. I would
suggest, therefore, that it is perfectly in order for the provider of the
service to exercise some discretion as to the credibility or the credit
worthiness of the seeker of the service. Would you agree?
Ms Jackman: I would argue that there is not really a difference of degree in
those two situations. I am suggesting that it is perfectly legitimate for the
banks to apply the same lending criteria to all potential borrowers. That would
not be discriminatory. However, what is happening with the phone companies is
that the same criteria is not being applied.
When I ask for a phone, because I can show proof of employment and an address
where I have lived for more than two years, an assumption is made that I will
pay my bill. No further questions are asked.
Senator Cogger: What about the issuance of a credit card? Do you not recognize
the right of the issuer to assess the history of credit or credit worthiness of
the party making the application? Should not anyone have the same right?
Ms Jackman: I am suggesting that the same criteria should be applied to all. I
am constantly invited to apply for ever-increasing, exorbitant credit limits on
all kinds of credit cards. The bank has a lot of control. It issues the credit
and puts a limit on it.
Senator Cogger: But the phone company that installs the phone cannot put a limit
Ms Jackman: They can suspend the service if I do not pay my bill.
Senator Cogger: Yes, they would suspend the service after you had run up an
Ms Jackman: Again, it is a business. In this computer age, they can easily
control what kind of debit they allow me to run up before they decide they will
no longer let me use the service.
Senator Cogger: That would be discriminatory because they would monitor you, and
they would not monitor my telephone.
Ms Jackman: The point I am trying to make is that federally regulated service
providers -- and I use banks as an example because I want to use an area where
there is documented evidence -- are discriminating on the basis of stereotype
rather than factual credit history.
Senator Gigantès: The famous J. P. Getty was so sick of paying huge phone
bills incurred by his rich guests, that he installed coin telephones beside
Senator Cogger: You would have us amend the bill to withdraw the notion of cost
from one of the criteria of hardship. We would merely retain health and safety.
Is that your proposal?
Ms Jackman: With regard to this bill, yes, I am suggesting that cost should be
scrapped as a limiting consideration. This would keep the bill in line with
human rights case law and other statutes.
Senator Cogger: As I recall, the last time we discussed that, someone raised a
matter of heritage buildings. I pointed out to Ms Falardeau-Ramsay that they
would not have a right to look into these matters under these criteria, and she
told me that they would come in under costs, for instance.
What you are suggesting is that, if the provider or the person who is the
alleged discriminator cannot prove a health or safety reason, regardless of the
costs, he will have to comply.
I do not want to get too philosophical here; but removing the notion of costs in
a bill that imposes duties and responsibilities on providers of services, seems
to me to be devoid of connection to the real world. Of course, in the ideal
world, costs would not be a factor.
Ms Jackman: I am not usually in such good company, but in interpreting section
15 of the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada
has held that one cannot justify discrimination on the basis of cost. Where it
is significant is in terms of a remedy. This legislation is being enforced by a
commission and a tribunal. Tribunal members, like judges, are inherently
conservative. I can assure you that to go to a tribunal or to a court and to
argue a remedy for discrimination which imposes the slightest financial
obligation on the state is to run a big risk.
Many of us believed that we might well lose the Elderidge case, even though we
were talking about $150,000 as compared to $6 billion. That was because we have
examples of case law where the courts have said, "We are in times of
fiscal restraint. It is not appropriate to order the government to spend money
to remedy discrimination."
You need not worry that, by qualifying the notion of cost with "excessive"
you will open the floodgates to tribunals and courts ordering the state or the
private sector to pay out hundreds of thousands of dollars to victims of
Senator Cogger: Why not? If the notion of excessive cost is the only item in the
balance between that and outright spending, once you have removed that only
criterion, then I suspect you are, indeed, opening the floodgate. Technically,
for instance, you could tell the Caisses populaires that ramps are needed in
every single locale in the country. Cost would not be a factor, if you cannot
invoke health or safety.
I sympathize with you. I understand your position, but it seems to me to be
connected to an ideal world and it may be weak in that it fails to take into
consideration the everyday reality.
Ms Jackman: I hear what you saying, senator. All I can say in my own defence is
that I am profoundly in touch with the real world of this type of litigation. I
can assure you that the decision makers are extremely conservative. When you
add the word "cost," it legitimates a pre-existing but often
inarticulate practice of denying equality rights if it could possibly cost the
We have not found another human rights statute that introduces this notion. It
does not exist. This would be a first and, as I say, a disturbing first.
The Chairman: Are you saying that there is not another piece of legislation that
brings in the idea of costs?
Ms Jackman: We have not been able to find another human rights code that
qualified "undue hardship" with the word "cost." This is
radical and I, would argue, regressive.
The Chairman: What about Ontario?
Senator Cogger: Let us say we were to strike out health, safety and cost -- that
is, strike out the last five words -- I would suggest that the provider of
services can still argue costs under undue hardship at any time. Presumably
there is other legislation elsewhere that involves the notion of undue
hardship. Maybe we are only being a little more honest or up front about it by
including the notion of costs.
Ms Jackman: The notion of undue hardship has a well established meaning in human
rights case law. If you scrapped the words, "considering health, safety
and costs," from my point of view that would be preferable. You would then
be relying upon the tribunals and the courts to continue in their practice of
interpreting the idea of undue hardship.
Senator Cogger: When you say it is well known in jurisprudence, does that take
into account costs?
Ms Jackman: Historically, the notion of undue hardship has included cost, safety
and health related considerations.
Senator Cogger: We are being up front. What is wrong with that?
Ms Jackman: In the case law, to prove undue hardship based on cost, as I
mentioned in my opening remarks, has been a heavy burden on the person
attempting to defend the discrimination.
Senator Cogger: You seem to argue that, not only does the party discriminated
against have to prove discrimination, but has to prove no undue hardship. I beg
to differ. Although the party has to prove discrimination, it is for the
provider to prove that he cannot correct the situation because of undue
hardship. The burden of proof is not on the discriminated party.
Ms Jackman: As the law is written, yes; but you would be negligent in arguing,
if you did not address the defence that will be raised.
Senator Cogger: There is a major difference between presenting your case and
defending a rebuttal.
Ms Jackman: Perhaps I am confused. I did not mean to suggest that the
complainant had the burden.
Senator Cogger: Technically, the complainant can say, "My Lord, I have
proved there is discrimination. I rest my case." He can stop right there.
It is then for the other party to try to rebut the allegation of discrimination
itself. Should he fail in that regard, he would then have to prove undue
Ms Jackman: Yes. He would have to prove that remedying the discrimination would
impose undue hardship.
Senator Lewis: What we sometimes tend to forget is that life is hard and life is
unfair. Some of the answers to the questions that have been asked have dealt
with the points I wanted to raise, in particular, the matters raised by Senator
It seems to me there needs to be a definition of "poverty" or "social
condition." Where it would start and end, I do not know. It would be an
onerous task to draft those definitions.
Laying aside altogether the provisions of the Bills of Exchange Act and the Bank
Act, what would be the practical result of a bank refusing to cash a person's
cheque because of their social condition? If that person made a complaint to
the Human Rights Commission, I suppose there would be action taken against the
bank. The bank would be put to the expense of employing a lawyer to defend
itself and there would be no answer to it from a practical point of view.
Ms Jackman: The person whose cheque was not cashed cannot simply go to the
commission and complain of being discriminated against because of poverty. The
person complaining must convince the commission, and subsequently a tribunal,
that a systematic failure to cash people's welfare cheques amounts to a
discriminatory practice against poor people or welfare recipients.
I use the term "social condition" because the Quebec commission in
particular has spent some time considering and defining what is meant by "social
condition." It would include things like source of income and receipt of
social assistance. These are the types of things which are generally understood
as being included in "social condition."
I used the banking example because it is well documented as being a systemic
discriminatory practice against poor people. If the legislation were amended in
the way I am suggesting, the bank might reconsider its current practices and
consider whether is it fair or effective to turn away every person who comes to
the wicket with a welfare cheque; or whether they should be taking extra steps
to make it easier for poor people to open accounts.
Why do poor people not open accounts? Is it because a disproportionate number of
them are illiterate and it is very intimidating for them to open an account?
Maybe the banks should take extra time and extra steps to help poor people with
literacy problems open a bank account.
There are many things banks could do if they had it in mind to provide the same
quality of services to poor people as they try to provide to professional
people whose business they are constantly chasing. They do not consider it to
be in their interests, economic or otherwise, to expend any effort to assess
what is necessary in terms of safeguards and procedures around banking services
for poor people. There is no onus on them to do it. Systematically, based on
stereotypical assumptions about poor people and welfare recipients, they can
simply refuse to cash their cheques and refer them to cheque cashing services
which charge 5 per cent.
Mr. Lewis: Would one of the alternatives for the commission not be to order the
banks to provide this service?
Ms Jackman: The filing and pursuing of a complaint is really a negotiation
process. It provides an impetus for action by the person who is the object of
the complaint. I am sure that, if there were some sort of coercive backdrop,
the commission would be able to give the bank many ideas on how to improve
services to poor people which would not be unduly costly.
Mr. Lewis: I am thinking of taking it a step further. It is all very well to
provide them with some ideas, but should they go so far as to order them? It is
almost like ordering the banks to cash the cheques of anyone who comes in.
Ms Jackman: As I have said, you have to prove discrimination based on an
enumerated ground. They are not obliged to cash anyone's cheque. However, they
cannot systemically deprive a disadvantaged group, which is recognized under
the law, of a service that everyone else gets.
Mr. Lewis: So your quarrel would really be with the policy of the banks.
Ms Jackman: Often it is. Often it is discretion. The teller may be having a bad
day and knows that the bank will support this kind of arbitrary decision. If
you are a middle-class or well-educated person, you will exhort, insist, go to
the next wicket, ask to speak to the manager, and eventually you will probably
get the service. However, if you are a poor person, chances are that, if you
complain or exhort, it is the security guard that you will meet and not the
This is anecdotal, and I am sorry to continue to refer to the banking example,
but part of the problem is that the failure to recognize social condition or
poverty means that we have very little research or jurisprudence.
Senator Beaudoin can testify to the paucity of human rights scholarship around
poverty. There is very little because it is not considered a human rights
problem. We are in a transition period where it is increasingly recognized as a
human rights problem. Canada, certainly at the federal level, is dragging
Senator Watt: I have a question totally unrelated to the issue we are dealing
with, but it deals with the general question of discrimination.
In aboriginal society, particularly on the Inuit side, discriminatory practises
were enacted by law, provincially and federally. I refer to individual rights
versus collective rights.
Under the collective rights notion, a body that is administering the rights of
the individuals is, according to the law, considered one person and has a
tendency to override individual rights, and individuals have no recourse. At
times they have nowhere to go and therefore become victims. I am speaking from
experience. I see that, not on a daily basis, but on a regular basis.
What is your recommendation? Do we require a bill of rights to protect ourselves
The Charter of Rights and Freedoms protects the individual from the wrongdoing
of the government. This is similar. How would you deal with that? I know it is
not totally related to this, but it should be on the record because sooner or
later we will have to deal with this. It is becoming more and more visible as a
Ms Jackman: You are making a very important point. Some of the forward-looking
work in this area is making those findings. We are focusing so much on the
state, the relationship between the individual and the state where, with the
move toward globalization, for example, rights are being trammelled, not by the
state, but by private sector interests. This focus may be misguided.
This is the advantage of the Human Rights Act over the Canadian Charter. The
Canadian Charter only governs the relationship between the government and the
individual, whereas the federal and the provincial human rights codes also
control abusive behaviour in the private sector. That is what gives a continuum
of rights from the state through to the private corporation. Where we draw the
line tends to be at the most private level of individual relations, one on one,
private clubs and family relations. At that point, we say, "You have no
more guarantees." Certainly, in terms of the private sector, outside the
club and the home, this is what this legislation is meant to do.
You can see a continuum with, for example, the employment standards type of
legislation. Ideally, you have a continuum of protections in these aspects of
your life that are in the realm of the public.
In the area of social and economic rights I have colleagues who are saying that
we are barking up the wrong tree and that the rights violator is no longer the
government; it is the private corporation, the multinational corporation, the
International Monetary Fund that governments cannot control, and that we have
to start considering how to regulate those kinds of relationships.
My weakness is that, as a public law and constitutional lawyer, my focus is on
the statutes and laws that govern the relationships between the individual and
the state. However, I think there is a lot of merit to the question of whether
or not our focus is too narrow.
It is important for these types of statutes to be good because they do touch the
Senator Doyle: A couple of years ago in the prosperous city of Toronto there was
something of a scandal when the chartered banks were found to be requiring
people with welfare cheques to line up in special queues on busy days. If I am
not mistaken, even the commission may have been alerted to that situation and
many a strong editorial was written on the subject. If I am not mistaken, the
consequence was that those special queues were eliminated.
I only raise that because the banks' practices, which you yourself have said may
begin with one tired teller, may become a habit in a busy bank which is
downsizing. However, there are ways and means of considering the problem. Might
not the provisions be strengthened by a change in language?
Ms Jackman: I must admit that I am not aware of the specific practice of
separate queues, although I am sure it might well have existed at different
times. I think you are right to say that at some levels you cannot regulate
everything. The banks will find ways to serve the perceived interests of their
shareholders; and a teller will find ways to punish the people at the wicket if
they are in a bad mood. We all engage in petty tyrannies at some point in our
day or our life.
The difference here is that groups which have been recognized historically as
being particularly vulnerable to that kind of petty tyranny have some statutory
protection and some groups do not.
Perhaps because I am a lawyer I have lost my sense of reality. However, I think
there is a symbolic importance to recognizing these rights in law that go
beyond just the effect on individual tellers at individual banks.
If you talk to poor people, they feel that their rights are being ignored or
trammelled by the private sector and by the state. They feel powerless and
It is the duty of the legislature to represent all its constituents not just the
powerful ones, or even the ones who vote, especially in this type of
legislation, the entire purpose of which, as set out in clause 2, is designed
to ensure equality of opportunity and non-discrimination.
Senator Doyle: If I remember correctly, they were mostly single mothers who
turned on the banks and then went public. They appeared on all the talk shows
and all the newspapers covered their stories, and the banks changed their
Ms Jackman: Certainly, sole support mothers, welfare mothers, are one sub-group
who economically and socially face particular problems right now. You could try
to argue that a sole support mother is being discriminated against based on her
family status, which is an existing ground. The advantage of recognizing social
condition explicitly is that you can invoke the proposed section 3.1 and say, "I
do not know if it is because I am a single mother, or if it is because I am on
welfare, or if it is because I am poor, but I know what is being done to me, and
it is being done systemically to others like me, and it should stop."
Senator Kinsella: Our discussion on poverty is very important. It is not now
included in the list of prohibited grounds of discrimination. We understand
your submission that it ought to be because the courts probably read the act as
though it is included at any rate. The legislative branch ought to be the ones
enacting the laws rather than the judicial branch.
However, in the list of prohibited grounds of discrimination in the bill, there
is a ground which does not apply to all sections of the act. On that point,
what is your opinion, and what is your advice as to at least having all of the
prohibited grounds of discrimination that are in the list apply to all of the
areas of discrimination covered by the bill? To be more specific, what about
the non-application of one of the prohibited grounds to section 16?
Ms Jackman: My preference would be for the proposed section 16.1 to simply refer
to section 3. It seems a bit redundant to amend both provisions. The problem
has been experienced by gays and lesbians, where, through either legislative
oversight or political gesture, they were included in one provision and not the
others. I would certainly favour a reference back to section 3.
I should have said this explicitly, but were the committee to modify the
proposed section 3.1 to include "social condition", I would hope and
expect that the proposed section 16.1 would also be amended to include it
because the two sections work in tandem.
Senator Kinsella: That is an important suggestion. We have it also from the
Human Rights Commission that they think that all of the current prohibited
grounds -- proscribed grounds, as I call them -- listed in section 3 apply to
all sections of the act.
My second technical question is this. In the Human Rights Act that I have the
most familiarity with, which is the Human Rights Act of New Brunswick, the
Human Rights Commission determines whether a bona fide limitation exists.
In the bill before us, in the matter of the duty to accommodate persons with
disabilities, the respondent to a complaint has available as a defence that a
bona fide justification exists that he or she cannot accommodate.
What is your opinion as to the merit of having available under the Canadian
Human Rights Act the ability that exists under the New Brunswick Human Rights
Act where the Human Rights Commission is able to receive an application from a
federal organization covered by the act, such as CN, requesting, ahead of time,
a determination by the commission that a bona fide justification exists for
them not being able to accommodate a person with a disability under the
specified conditions? I raise that for a practical reason. Let us say CN knows
they have a problem in that they cannot accommodate, and they feel they have
good reasons. If they go to the commission and the commission makes the
determination, consider the anguish and the suffering that is saved the
complainant and the respondent, not to mention the amount of money that would be
saved. It works tremendously well in New Brunswick. What do you think?
Ms Jackman: I referred to the definition of undue hardship earlier. If anyone
should not have the power, it should be cabinet. That is what the bill
provides. The cabinet could define undue hardship. I have suggested that this
should be absolutely struck from the bill.
In terms of advance recognition from the commission, this is not an area in
which I work. I am not sure of the existing practice, but my assumption is that
there is a back and forth between the commission, the complainant and the
respondent to try to settle these disputes as much as possible so they do not
end up before the tribunal. Any powers that could be granted to the commission
to facilitate that work or legitimate that work would be beneficial.
Senator Kinsella: Senator Beaudoin's former colleague, the late Justice
Tarnopolsky, wrote an interesting article about anti-discrimination law and
human rights law entitled, "The Iron Fist in the Velvet Glove" which
was published in The Canadian Bar Review. One of the theses advanced in that
article is that human rights legislation is special legislation, but it is not
meant to be punitive legislation.
With respect to the proposed amendments, including the amendments to the
tribunal section, what is your advice to this committee as to whether the iron
fist in the velvet glove thesis is being maintained?
Ms Jackman: It is in the sense that the Human Rights Code and the jurisprudence
attached to it has always focused on remedial aspects. That is what is so good
about this jurisprudence. The idea is not to punish but to remedy.
The bill recognizes that, in some situations deterrence, is called for because
of a consistent course of practice. The example of the Internet hate speech is
a good one. The individual and groups involved in this have shown a flagrant
disregard for the law and the rights of others. There is a sense that, without
some ability to deter through punishment, the law is not being effective.
Certainly, the amounts being contemplated are quite modest in a common law
sense. I do not see them as being anomalous or problematic at all.
Senator Beaudoin: Is it going too far to say that we cannot deny a right on
account of cost? In other words, we cannot say it is too expensive to be
implemented. I am inclined to conclude that we should not conclude that it is
too costly to implement a certain right, so it will not be included. However,
are there some limits to that? For example, what state in the world is in a
position to say, "You have a right to work, and if you do not find a job,
there is a remedy." Of course, if a person cannot find a job in a
civilized society, there is unemployment insurance and schemes of that sort.
However, where is the exact line drawn? Is there a principle that you can never
deny a right just because it is costly or it involves too much money?
Ms Jackman: The way this has been dealt with under the charter is as an issue
not of substantive right or of justification, but of remedy. It is for the
tribunal to determine the required accommodation.
It may be that the ideal remedy would be extremely costly but, in the end, the
accommodation ordered would be less costly. That is anticipated under section
24 of the charter as well.
Senator Gigantès: I do not quite understand that response.
Ms Jackman: As Senator Beaudoin pointed out, you do not want to say that if your
right is too expensive, it will not exist.
Senator Beaudoin: We do not want to say that.
Ms Jackman: Not at all. However, we may sometimes say that a right is so
expensive that we cannot provide the ideal remedy; but we will provide an
In the language of the Human Rights Act, we are saying it would impose an undue
hardship to accommodate a person in the ideal way, but they may be accommodated
in another way.
For example, in the Elderidge case, the applicants requested that the Supreme
Court order the B.C. government to fund sign language interpretation services,
the same way you would expect service if you went to the doctor's office
complaining of a cold. The interpreter would attend with the person who
requires the service, and would be reimbursed as is a physician.
The court decided to send the matter back to the Government of British Columbia
to decide what could be more effective.
Senator Beaudoin: They found it was a right.
Ms Jackman: Yes, however the cost became a factor in the remedy. It became a
factor at the level of the remedy that was ordered, not at the level of whether
or not discrimination existed.
Senator Beaudoin: How could the judicial branch say to the executive or
legislative branch, "It is a right; find the money somewhere"? If
there is no money, that is the end of the matter.
Ms Jackman: What the courts said, is that the right of deaf people is violated
if they cannot communicate with their physicians or the hospitals. It must be
ensured that deaf people can communicate.
Senator Beaudoin: What about, for example, the right to work?
Senator Kinsella: As a supplementary comment, from a human rights analysis, is
it not true that there is a principle that espouses that the enjoyment of
economic, social and cultural rights are dependent upon the ability of the
state to pay. The principle is well recognized. Is that not a valid principle?
Ms Jackman: That is absolutely right, yes. It is a right that you enjoy
progressively, in accordance with the means of your society. All rights are
interpreted in that context.
Our understanding of the right to vote would include, for example, being
enumerated at our own doors rather than going somewhere to be enumerated. That
is specific to our political context.
In response to Senator Cogger, in particular, within our interpretative context
he is right, cost is always a consideration. I am objecting to identifying cost
as a red flag. If you can argue costs, you are off the hook.
We already have a well-defined definition of undue hardship which balances cost
and other considerations. What is the need to include those qualifiers? I would
scrap the last part of that sentence and rely on the jurisprudential notion of
undue hardship. It exists, it has been interpreted. We know what it means. I
anticipate this emphasis will have a harmful effect, because the courts and
tribunals are already so concerned about telling the state and the private
sector to spend money to remedy discrimination.
Senator Kinsella: For the record, recently Senator Beaudoin and I had an
opportunity to participate in a very interesting meeting of Parliamentarians of
the Americas in Quebec City. The participants at that conference adopted a
resolution which the Senate of Canada advanced, to the effect that we would
undertake to attempt, in our respective parliaments, to examine our respective
countries' reports on human rights submitted under the various international
In your presentation, you alluded to reports which are made and submitted by
Canada under the covenants. You also drew to our attention to some of the
recommendations which the human rights committee examining our country's report
Hopefully, Madam Chairman, we will take up the challenge of examining the
reports which Canada has been submitting dealing with human rights, because we
have just heard testimony from an expert witness relating to a valuable
recommendation which was made by the United Nations to Canada to improve our
human rights record.
Senator Gigantès: In response to my earlier question, your answer
indicated to me that workfare schemes do not work, and that for those which do
work, there are huge queues. If there were enough workfare schemes that are
worthwhile and did work, would you have an objection to them?
Ms Jackman: If we are to call it "workfare," I would object, because "workfare"
has a whole set of connotations.
Senator Gigantès: Let us change the name.
Ms Jackman: Employment opportunity is really ugly, too, and that has become the
euphemism for "workfare."
Programs that are designed to help people who are on welfare reintegrate to the
work force, are a positive thing. In our economy, the only way to ensure
economic security for one's self and one's family is through paid employment in
the work force. This is where my gender starts to factor in. When I look at
programs like workfare, one of the questions I would be asking would be: Does it
come with daycare?
As a sole support mother who wants to go back in the work force, my rates of pay
are low, the stigma is horrible. I do not want my children to grow up in that
culture. However, I am either offered or forced to participate in a program
with no provision made for caring for my pre-school children.
The way I look at it, increasingly, in most jurisdictions in Canada, workfare is
popular because it is punitive and not remedial.
Senator Gigantès: I fully agree with you.
The Chairman: Thank you, very much, Ms Jackman. You have given us some very
valuable insights. Thank you for coming today.
The committee adjourned.