Proceedings of the Standing Senate Committee on
Issue 8 - Evidence
OTTAWA, Thursday, November 27, 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 10:54 a.m. to give
consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
The Chairman: Honourable senators, our first witnesses today are from the Quebec
Ms Carole Brosseau, Solicitor, Research and Legislation Services, Quebec Bar
Association: Madam Chairman, first of all, I would like to thank the Senate
committee for inviting us here to make representations on Bill S-5 on behalf of
the Quebec Bar Association. I am a solicitor with the Bar's Research and
Legislation Services. I am happy to have with me today Ms Madeleine Caron and I
will give you her professional background in a few moments.
I would like to begin by describing for you the role of the Quebec Bar as set
out in the enabling legislation. We have a responsibility to protect the public
and when we make representations, this responsibility is always uppermost in
our minds. We will not represent the interests of any one group; rather, when
bills are tabled, we will work to ensure that the proposed legislation is in the
best interests of the public.
The Quebec Bar takes the following approach: we consult with experts in specific
areas who sit on advisory committees. With the help of these committees, we
establish our official positions which are then approved by the bâtonnier
or the office of the bâtonnier, or by the bar's decision-making bodies,
namely the executive committee and the general council. This gives you an idea
of how we work.
As part of our study of Bill S-5, we consulted two working committees: one
specifically established to deal with matters pertaining to administrative law
and human rights, and the standing committee on criminal law committee which
has given testimony several times before the Senate committee. Our brief also
lists the names of those who were consulted in the drafting of this document. I
hope this gives you an idea of how our organization is structured and how we
went about preparing this submission.
Ms Caron is an expert in the field of human rights. She has worked as a lawyer
for a number of years and since 1979, has been with Quebec's Commission des
droits de la personne where she served as the head of litigation services from
1986 to 1997. I will let Ms Caron talk to you about human rights issues, the
Canadian Human Rights Tribunal and the amendments to the Canadian Human Rights
Given the time frame that we had to work with, we used the copy of Bill C-98
tabled last April for the purposes of our study. I checked and the provisions
of Bill S-5 and Bill C-98 are consistent with one another. For the purposes of
our study and to facilitate matters, we used the Bill C-98 version. All of our
references are to provisions in Bill C-98.
I will start by examining the provisions in the bill which amend the Evidence
Act and the Criminal Code. As far as the Evidence Act is concerned, the
amendments reflect the desire on the part of the legislator to accommodate
disabled persons so that they can participate more fully in the judicial
We have two comments to make regarding amendments to the Criminal Code. The
first concerns the proposed new section 153.1 in clause 2 of Bill C-98.
Pursuant to this provision, the sexual exploitation of a person with a mental
or physical disability would constitute an offence. We understand the principle
underlying this clause. However, sections 151 and 152 of the Criminal Code
provide for a term of imprisonment of up to ten years to be imposed on a person
found guilty of taking sexual advantage of a disabled adult, whereas the
maximum penalty under the new section 153.1 for a comparable offence is five
While the two situations are comparable, the punishment imposed is different.
Section 153 of the Criminal Code already covers incidents involving minors.
Therefore, we are puzzled by the creation of a new offence.
My second comment pertains to clause 3 of the bill which amends section 627 of
the Criminal Code to permit a person with a physical disability who is
otherwise qualified to serve as a juror to have technical, interpretive or
other support services. We have a question that we would like to put to you
regarding this provision.
We do have some reservations in respect of this clause. Remember that we are
talking about seating a jury. Juries deal with serious offences. Consequently,
in the case of a juror with a hearing disability who requires technical
support, an interpreter might eventually be brought in as a kind of thirteenth
juror. Our question is as follows: As the thirteenth juror, would this
individual participate in the jury's deliberations?
Steps would have to be taken to ensure that the technical support provided by an
individual to a hearing-impaired juror would not make this individual a
It is not that we have a problem with this provision, but rather that we
question how it will be implemented. This concludes our comments about the
proposed amendments to the Criminal Code.
I will now turn the floor over to Ms Caron. She will be discussing the
amendments to the Canadian Human Rights Act.
Ms Madeleine Caron, Solicitor, Member, Subcommittee on Bill S-5, Quebec Bar
Association: The first provision that we would like to comment on is clause 8.
We fully concur with the aim of this provision which is to ensure that the
needs of persons with disabilities are accommodated. We feel that the French
version of the bill is perhaps stronger and more proactive than the English one.
The French version refers to "prise de mesures visant à la
satisfaction des besoins". The English version should be harmonized with
the French one to convey this proactive notion of protecting all individuals
and ensuring equal opportunity for all.
Subsections 2 and 8 of this clause are very interesting. Clause 9 amends section
15 of the act.
Senator Cogger: We are not following you. You are not referring to the same
version of the bill as we are.
Ms Caron: Would the reference be to clause 8 of the bill? Is there a difference
between Bill C-98 and Bill S-5?
Senator Cogger: Do you have a copy of Bill S-5?
Ms Brosseau: Clause 8 is now clause 9.
Ms Caron: You are correct, it is clause 9 of Bill S-5 which amends section 2 of
the Canadian Human Rights Act.
We agree with this provision. The French version of clause 9 is worded more
strongly than the English one. It refers specifically to "prise de mesures
visant à la satisfaction des besoins".
This reflects the taking of a proactive approach. We totally agree with this
wording. In fact, the wording of the English text could be more explicit.
Clause 10 amends section 15 of the act which provides for non- discriminatory
practices. Subsection (2) contains a definition of undue hardship.
For any practice mentioned in paragraph 1(a)[...], it must be established that
accommodation of the needs of an individual or class of individuals affected
would impose undue hardship on the person who would have to accommodate those
needs, considering health, safety and costs.
Subsection (2) restricts the criteria of undue hardship to costs, health and
safety. Case law, particularly Supreme Court case law, has already carefully
worked out the concept of undue hardship in respect accommodation and
discrimination. We are concerned that the definitions given in this subsection
will limit the concept of undue hard ship. Perhaps we could confine ourselves to
talking about this concept of undue hardship and leave it to the courts to
define the parameters.
Ms Brosseau: We are pleased with the clause in the bill which provides for the
Governor in Council to make regulations prescribing standards for assessing
undue hardship and with the fact that the regulations arising from the Canadian
Human Rights Act will be published in advance. The Quebec Bar made
representations to the Standing Committee on Justice in conjunction with its
study of Bill C-25, the federal Regulations Act and recommended to the
government that it adopt Quebec's approach which requires the publication of
all draft regulations.
The field of human rights is one of particular interest to the public.
Publication of the draft regulations is a positive step and we want it to
underscore this fact. This is a very interesting and important measure.
Ms Caron: Our position on clause 10(9) is similar. It appears to set out
specific employment requirements for the members of the Canadian forces. This
is unnecessary. In any event, case law has recognized that certain special
skills are required to secure employment in the Canadian forces. It seems
pointless to include a special definition here in the bill. Case law has not
resulted in any instances of abuse in this area.
Clause 14 concerns retaliation. The Quebec Bar agrees that retaliation against
an individual who files a complaint of discrimination could be deemed a
discriminatory practice. However, we suggest that some provision should be made
for emergency measures to be taken immediately. For example, when a person
files a complaint of discrimination and that person's employer takes retaliatory
action, that complainant should not have to wait until an investigation is
concluded and have a court order a stop to this retaliatory action. We
recommend that the provision set out some emergency measures that could be
invoked in such instances.
Ms Brosseau: When consulting our brief, you should always adjust the numbering
by one. Instead of clause 8, you should read clause 9. That is the only
difference between S-5 and C-98.
Clause 19 amends section 25 of the Act and defines "employment" as
including a contractual relationship with an individual for the provision of
services. We concur with this provision which protects contractual employees or
employees hired through placement services from discrimination.
Pursuant to clause 23, the commission -- the commission submits a request to the
tribunal and we will talk more about this later -- may file complaints to be
heard jointly by the tribunal. The bar suggests, and we will come back to this
a little later when we discuss the need to put more distance between the
tribunal and the commission, that emphasis be placed on the fact that it is the
tribunal that may order the filing of joint complaints. We propose the
following wording: the tribunal may, on application from the commission,
request that complaints be dealt with jointly. As the provision is now worded,
we are left with the impression that as soon as the commission requests that
complaints be dealt with jointly, the tribunal has no choice but to go along
with this request. There must be more distance between the commission and the
tribunal. The former is an administrative body, while the latter has
This brings us to clause 27 of the bill on page 12 and to the section on the
Canadian Human Rights Tribunal. We take note of the legislator's intention of
establishing a permanent human rights tribunal. The bar supports this
initiative. However, we wish to point out that the tribunal's independence vis-à-vis
the commission, the public administration and in particular the department
could be expressed in stronger terms.
In our brief, we refer to the criteria for judicial independence. I have no wish
to quote our submission in its entirety, but on page 9, we include a citation
of Madam Justice McLlaughlin who stated the following:
The critical requirement for the maintenance of judicial independence is that
the relations between the judiciary and other branches of government not
impinge on the essential "authority or function" of the court.
Consequently, a court must not only operate in an impartial manner, but it also
must be seen to do so by a reasonable and intelligent person. The Quebec Bar
notes that the federal bill is not identical to existing Quebec legislation. In
Quebec, a human rights tribunal is a judicial body in that hearings are
presided over by full-time judges. We are not asking the federal tribunal to
take a similar approach. However, as we mentioned earlier, the legislation must
be very clear as to the separate status of the tribunal and the commission. The
commission files requests and the tribunal hands down decisions. The law is
clear on this point. Otherwise, in cases where an individual might think that
the tribunal has bowed to the pressures of the commission, legal disputes could
arise and the legislation would be of no help in resolving these disputes.
Clause 48.3 of Bill S-5 gives the Minister of Justice extensive powers in
respect of remedial or disciplinary measures that can be imposed on a member of
the tribunal. This is quite obvious in clause 48.3. The Minister of Justice may
take disciplinary action against a member of the human rights tribunal. We find
this surprising and somewhat incongruous. This provision should be amended.
Section 48.5 reads as follows:
The full-time members of the tribunal shall reside in the National Capital
We believe that this provision will make it difficult to recruit high calibre
individuals because members will be chosen from across the country. We fail to
understand this requirement, given present-day means of communication, and we
question the importance of a permanent residence in or on the edge of the
National Capital Region. We feel that tribunal members should not all
necessarily have to reside in the National Capital Region, especially since the
cases being brought to their attention originate from all over Canada.
Ms Brosseau: One of the principles behind or reasons for this provision was to
ensure full regional representation on the tribunal. Given the mobility of
individuals and families, we also doubt whether it will be possible to meet the
objective of ensuring that full regional representation, bearing in mind that
we want the tribunal members to be as competent as possible. The competence of
tribunal members is another important consideration in terms of ensuring the
sound operation of the tribunal. We have some serious reservations, therefore,
about this residency requirement.
Ms Caron: A recent Supreme Court ruling dealt with this issue of requiring an
individual to have a permanent residence in a given location in order to carry
out his or her duties. A close correlation must exist between the requirements
of the position and the residency requirements. Senators can refer to the
relevant ruling, that is Godbout v. the City of Longueuil.
Ms Brosseau: In clause 48.8 of Bill S-5, these provisions have not been amended.
On page 17 of the bill, the chairperson may, and I quote:
[...] engage persons having technical or specialknowledge to assist or advise
While the Quebec Bar does not object to the presence of experts, problems may,
however, arise with respect to openness when experts raise new facts. It should
be noted here that the experts would be working for the tribunal, not for the
parties in the case. If the expert raises new facts, a mechanism should be in
place for disclosing these expert opinions to allow the parties to take them
into consideration, analyze them and cross-examine the tribunal's experts.
At present, the bill does not provide a mechanism for disclosing new facts. In
our opinion, such a mechanism should be an integral part of Bill S-5. We are
not opposed to the principle at hand, but when new facts are disclosed, there
should be a mechanism for disclosure in place.
Senator Beaudoin: Are you referring to clause 48?
Ms Brosseau: Clause 48.8(2). This would be an important addition.
Ms Caron: Clause 49.1 is one example of a lack of strict demarcation between the
role of the commission and that of the tribunal. This provision reads as
At any stage in the filing of a complaint, the Commissionmay requests the
Chairperson of the Tribunal to institute an inquiry [...]
Firstly, this gives us the impression that the commission can choose judges;
that is not the purpose of this provision. The tribunal operates within a given
jurisdiction; the commission files a complaint and the tribunal disposes of it
in accordance with its jurisdiction. However, we do not think that there should
be any kind of administrative complicity between the commission and the
The same comments apply to sub-section 2 in that we do not feel that the
chairperson should be assigning a member of the tribunal on receipt of a
request from the commission.
With respect to subsection 3 and the appointment of the tribunal chairperson, we
contend that the chairperson should at all times be someone who has a legal
background for the following reasons: adjudicating these cases requires a
certain knowledge of case law and the rules of evidence. Human rights tribunals
are not required to strictly observe the normal rules of evidence. However, in
order to ensure more flexibility as far as procedure and evidence is concerned,
those overseeing the proceedings must have knowledge of the rules so that they
are in a better position to assess them. However, the person appointed to chair
the tribunal pursuant to the bill need only have a legal background under
certain circumstances. We believe that this should always be the case for
reasons related to evidence and knowledge of law and case law.
Ms Brosseau: I refer you to section 50.1 of Bill S-5 on page 19 which reads as
After due notice to the Commission, the complainant, the person against whom the
complaint was made and, at the discretion of the member or panel conducting the
inquiry, any other interested party, the member or panel shall inquire into the
complaint and shall give all parties to whom notice has been given [...]
I emphasize these words:
[...] full and ample opportunity, in person or through counsel, to appear at the
inquiry, present evidence and make representations.
The concept of "full and ample opportunity" is always one that relates
to criminal law. This requirement is much too excessive in the case of human
rights and is not in keeping with the spirit of human rights legislation.
We believe that the requirement is consistent with the criteria set out in the
Supreme Court decision in Stinchcombe. Considering the purpose of the bill,
this is an excessive requirement.
Senator Gigantès: Could you explain to us further why you object to this
provision? What risk do you see?
Ms Brosseau: The words "full and ample" refer to a concept in criminal
law. In the context of human rights, there is no need to invoke criminal law
because the appropriate measures to take are corrective, not repressive ones.
With respect to evidence, the court ruled in Stinchcombe that the Crown attorney
is required to disclose to the defence all of the evidence that he has. If we
put ourselves in the commission's place and, having gathered evidence for and
on behalf of the tribunal, find ourselves forced to disclose any evidence in
our possession to the defendant in the case, this would be unpleasant indeed.
The standard imposed, that of "full and ample" evidence, is
excessive. We would be satisfied if these two words were deleted.
Senator Gigantès: Is it always a bad thing for the commission to be faced
with an unpleasant situation?
Ms Caron: The question is not whether the commission may or may not find itself
in an unpleasant situation. The issue is that in the area of human rights, we
should not be dealing with repressive or criminal law, but rather with
preventive law and corrective or remedial action. However, the reference is to
a full and ample defence puts us squarely in the field of criminal law. In civil
law, we refer more to the opportunity to present any evidence and to use every
means available. It is the words "full and ample" which point to
criminal law and which should be avoided. Of course, the parties must have
every opportunity to present all of the evidence.
Ms Brosseau: To present the evidence fully, but not be held to the same standard
of full and ample evidence as the defence would be held.
Senator Gigantès: I would like a concrete example.
Senator Losier-Cool: Do the English words "full and ample" have the
same meaning as the words in the French version?
Senator Cogger: I do not think that we should be applying the terms "full
and ample" to the degree of evidence that must be presented. The reference
here is to the full and ample opportunity to appear. This has nothing to do
with the degree of evidence. I fail to see the connection that you are making.
These are terms used in criminal law.
Senator Losier-Cool: It is the opportunity that is full and ample.
Senator Cogger: I have no problem with the legislator's intent.
Ms Caron: It is a question of wording. It is quite permissible to use the
expression "full and ample opportunity to appear". That is how it is
Ms Brosseau: The wording could pose a problem.
Senator Cogger: It refers to full and ample opportunity to appear, present
evidence and make representations.
Senator Lewis: It does not say anything about the evidence.
Senator Cogger: That is what I am saying. "Full and ample opportunity"
does not refer to the degree of evidence.
Ms Brosseau: When we make representations, we do so with the goal of concluding
that legislation is either good or bad. We are cautioning you about the
terminology. In our view, it is too strong. We have a problem with the use of
the words "full and ample" in reference to the evidence presented.
The Chairman: May I ask committee members for their guidance on whether you want
to carry on at this point or hear the rest of the presentation first?
Senator Beaudoin: I suggest we clear up this point because there is a mistake
In the ruling which you cited, it is the defence that is "full and ample",
not the opportunity to appear. We have no problem with this wording. The
accused has a "full and ample" defence. It is a question of the
wording used and I have no problem with this.
Ms Brosseau: Our concern is that the terminology used is not quite right and
that the provision could be interpreted incorrectly.
Senator Beaudoin: Perhaps the word "full" would have been sufficient.
Ms Brosseau: Exactly.
Senator Beaudoin: I am not prepared to reject the bill because of that.
Ms Brosseau: No, but you could recommend changes in your comments or in your
report. The Quebec Bar has cautioned you about the provision. Our only interest
is in seeing that the legislation can be applied in keeping with the spirit of
Senator Beaudoin: Madam Chair, we have only 15 minutes left. I am sure that we
all have questions. I have questions on the independence of the tribunal and I
would like very much to discuss that.
The Chairman: I am informed that no one else will be using this room after us,
so we can keep this panel for a little longer. Our next witnesses will be
Senator Doyle: I have a follow-up question on the issue of permanent judges. If
you have permanent judges, the subtlety of the language or the legalese of the
language will be entirely set by the presiding officer where it might not be by
a social worker in the same job. I am wondering if the two items could not be
addressed, perhaps, when we bring it back to judges and the merits of having
I am impressed with the situation in Quebec where judges do preside. That speaks
for the recognition of the difference between corrective and criminal.
You must know, Madam Chair, whether this is the time to try and nail that down,
or whether it should wait until later when we are talking about the language
per se in the item we have just finished.
The Chairman: I suggest you bring that up later when you can attempt to tie the
two approaches together.
Senator Losier-Cool: My question concern the wording "full and ample
Does this have the same connotation or carry the same risk? Does this mean the
same thing to you?
Ms Brosseau: Yes.
Senator Losier-Cool: It is immediately apparent that the reference to "full
and ample opportunity" relates to the opportunity to appear.
Senator Beaudoin: In criminal law, a "full and ample" defence is a
Senator Losier-Cool: We are not talking about a defence.
Senator Cogger: The French version refers to the "possibilité pleine
et entière". It is the same as in the English version.
Ms Caron: We would now like to move on section 51 amended to read as follows.
In appearing at a hearing, presenting evidence and making representations, the
Commission shall adopt such position as, in its opinion, is in the public
interest having regard to the nature of the complaint.
This procedure before the Human Rights Tribunal, as is the case before other
Human Rights Tribunals in Canada and in Quebec, is inquisitorial in nature. The
tribunal itself can gather evidence. We note that this clause gives the
commission the discretion to defend the public interest. The provision states
that "the Commission shall adopt such position as, in its opinion, is in
the public interest". We believe that the commission should not have this
kind of discretion and that the bill should stipulate that it is under the
obligation to represent the interest of the victim, while bearing in mind the
public interest. The measure of discretion enjoyed by the commission should be
Section 53(2) hints at some criminal aspects. On several occasions, the Supreme
Court has indicated that human rights legislation is preventive and remedial
legislation, not punitive or repressive. The French version of section 53(2)
provides that "le membre instructeur peut ordonner à la personne
trouvée coupable d'un acte discriminatoire...". Who would like the
expression "trouvée coupable" to be stricken from the bill.
This expression could be replaced by "tenu responsable d'un acte
discriminatoire". The formulation should be changed to avoid a reference to
a criminal law concept when dealing with human rights legislation.
The French version of this section refers to the possibility of the member or
panel conducting the inquiry to make an order against the person found to be
engaging in a discriminatory practice or to take measures to redress the
practice, "selon les circonstances". We would prefer it if the
expression "en fonction de la preuve recueillie" was used instead of "selon
les circonstances", This would be more objective than a reference to "circonstances".
Thus, the provision could read "le membre peut ordonner, en fonction de la
Senator Gigantès: There are serious problems with the translation
throughout this clause. I suspect that the person who has translated from
English to French may well be from France because he has this concept of "le
membre instructeur", which does not appear in the English version at all.
In English, it states the "member or panel".
That is what the text says in French, but that is not what it says in English.
In English, we have "the member or panel".
Ms Caron: The legislation makes provision for either a one-member or a
three-member panel, depending on the type of case being heard.
Senator Gigantès: However, in French, the word "instructeur"
refers to the trial judge.
The Chairman: I point out to the committee that bills are not translated from
one language to the other; they are crafted separately in both languages. This
may well be where "le membre instructeur" has arisen.
Senator Cogger: I agree with Senator Gigantès. In this case, it appears
that the word "panel" does not appear in French. Regardless of
whether or not "membre instructeur" is an appropriate translation of "member",
the word "panel" is not reflected.
Senator Gigantès: Do these drafters not speak to one another; or are they
The Chairman: This is a question we may well ask the minister. We will make note
Keeping an eye on our time, we will move on.
Ms Caron: We would also like to comment on section 54 on page 22 which pertains
to complaints relating to hate messages. The legislation makes provision for
special sanctions in the case of hate messages. The bar wishes to point out
that hate messages are prohibited under the Criminal Code. The Human Rights Act
may make provision for remedial measures to deal with hate messages. We suggest
that any reference to penalties be eliminated because a person would be punished
twice for the same offence under the Criminal Code. Therefore, we suggest that
section 54(1)(c) which makes provision for a monetary penalty of at least
$10,000 and section 54(1.1) which also refers to a monetary penalty be deleted.
Senator Beaudoin: On which page?
Ms Caron: Section 54(1)(c) and section 54(1.1) on page 22. This concludes the
representations of the Quebec Bar.
The Chairman: Thank you, members of the panel. You have been very comprehensive.
You have given us a specific critique of this bill and I know there are many
questions as a result.
Senator Beaudoin: Since there will be many questions, I shall restrict myself to
one or two.
Therefore, I congratulate you. It is not everyday that we hear representations
from the Quebec Bar, the Canadian Bar or the Ontario Bar. We are always
interested in hearing the views of these associations.
One thing that stands out from your presentation is the issue of judicial
independence. I have the impression that in Quebec, judicial independence is
probably more highly respected. I agree with you that the chairperson of a
human rights tribunal should also be a jurist. This is not a constitutional
requirement, but I do think that it is a good thing. Could you describe briefly
for us how it works in Quebec? Human rights tribunals are chaired by jurists.
Non-jurists with extensive experience in the field of human rights may, of
course, also serve on the tribunal. This is a better system, in my view. I
wonder if perhaps we should not consider adopting it at the federal level.
Briefly then, what is the situation in Quebec?
Ms Caron: The chairperson of Quebec's Human Rights Tribunal is a Quebec Court
Senator Beaudoin: He is a permanent judge appointed for life.
Ms Caron: That is correct. In addition, two part-time judges who are also
regular Quebec Superior Court judges serve on the tribunal. The panel that
hears cases is also composed of a judge and two assessors who need not be
jurists, although they do play a rather special role. They assist the judge in
that they collect evidence and give advice to him. However, the judge is the one
responsible for the final ruling. He, not the assessors, signs the decisions.
Assessors can be either jurists and non-jurists. Briefly, that describes the
situation in Quebec.
Senator Beaudoin: You mentioned that section 48.1 on page 12 should assert the
principle of judicial independence. How do you propose it do that? Do you care
to propose an amendment to section 48.1?
Ms Caron: On the question of judicial independence, the bar is not asking or has
not gone so far as to ask that the Human Rights Tribunal be composed of
permanent judges who have been appointed for life. We are talking about an
administrative tribunal. The bar is not opposed to this setup. However, on a
number of occasions, we have pointed out to the commission that the concept of
independence should be clearer. I can go back to these provisions if you wish.
Senator Beaudoin: Could you give us an example?
Ms Caron: It should be clearly stated that the tribunal orders an inquiry to be
held on receipt of a request from the commission or from the other party and
that there is no administrative relationship, pursuant to the legislation,
between the commission and the tribunal. The commission investigates to
determine if there is sufficient evidence to bring the matter before the
tribunal. It should be clearly stipulated in the legislation that the
commission is acting as the plaintiff and the process should reflect the
tribunal's independence vis-à-vis the commission. The commission requests
an inquiry and adduces evidence. It does not ask the tribunal to assign a
member to inquire into the complaint.
The commission presents its case which the tribunal examines, in accordance with
its jurisdiction under the act. The other party may raise some objections as to
the tribunal's competence in this matter.
Senator Beaudoin: In other words, when the tribunal acts at the request of the
commission, the tribunal must be independent. Is that correct?
Ms Caron: That is correct.
Senator Beaudoin: It cannot receive orders from the commission, simply requests.
Is that right?
Ms Caron: Exactly. That is the first point. The second point relates to the
justice minister. The bill contains a lengthy provision whereby the justice
minister can sanction a member of the tribunal for violating the code of
ethics. We object to this provision as well.
Senator Beaudoin: Which clause are you referring to?
Ms Brosseau: We identified it.
Senator Losier-Cool: Section 48.3
Senator Beaudoin: Section 48.3 reads as follows:
The chairperson of the Tribunal may request the Minister of Justice to decide
whether a member should be subject to remedial or disciplinary measures [...]
This is strongly worded, I would say.
Senator Gigantès: They are not judges, therefore it is not a panel of
judges who are going to decide which remedial measures to take. Who is going to
decide, if not the Minister of Justice? This is something we should know.
Senator Beaudoin: I raise this point because this is the first time I have seen
anything like this in a bill, namely a tribunal asking the Minister of Justice
to take remedial or disciplinary measures.
Senator Gigantès: We are talking about an administrative tribunal, are we
Senator Beaudoin: Yes.
Senator Gigantès: To whom should the tribunal be directing this request?
Ms Brosseau: It is an administrative tribunal, but it also have some judicial
functions. We have mentioned them in the course of our presentation and see no
need to repeat them at this time. However, this tribunal does exercise some
judicial powers and we do have certain reservations about this. In response to
what you were saying, Senator Beaudoin, when we cited the Valente ruling and
referred to the whole concept of independence and summarized Madam Justice
McLlaughlin's thinking on the subject, we came to the conclusion that some
distance must be maintained. The tribunal must be independent of the parties
pleading their case before it. It is a matter of independence and impartiality
and it brings into focus the very credibility of our judicial system. This is
an important consideration.
The Chairman: If I may interject here for the benefit of the panel, we were told
yesterday that there are similar provisions in the legislation concerning
several other tribunals, so this is not something that is new and different.
Ms Caron: I will answer that. Some criticism has indeed been levelled against
human rights tribunals in all provinces. The system in Quebec is different, as
we explained. I think that this legislation aims to address some of the
criticism that has been directed at human rights tribunals which were too
closely tied to government. Some progress has been made, but still more remains
to be made to ensure this separation between the administrative branch and the
tribunal. Tribunal members are appointed by the Governor in Council. Provision
could be made for a complaint procedure and there would need to be overwhelming
evidence of misconduct in order for the Governor in Council to remove the
member and for the reprimand process to be tied to the appointments process.
That is one possible solution.
Senator Beaudoin: It would be an easy one.
Senator Gigantès: The Governor in Council is cabinet, and the Governor
General endorses a Cabinet decision. For such matters, cabinet will certainly
assign priority to the justice minister's viewpoint. If we do not adopt the
same course as Quebec and appoint permanent judges subject to disciplinary
sanctions by a judicial council, what other option do you think the justice
minister has, given that the tribunal members are not regular judges? We must
not hide behind words and claim that the order in council comes from the
Minister of Justice.
Senator Cogger: The city of Ottawa is littered with people appointed to hold
office during good behaviour pursuant to an order in council. The same body
that appointed them has the power to remove them from office. We could refrain
from making any mention whatsoever of the Minister of Justice and say instead
that members are appointed, not by the Minister of Justice, but by order in
Senator Gigantès: I was saying that the Governor in Council is cabinet
and in such instances, it is the Minister of Justice who will hear the case. He
will say, "My dear colleagues, here is what I recommend." Cabinet's
response will be: "Agreed, Mr. Minister", and the decision will be
signed by the Governor in Council.
Ms Caron: With cabinet, there may be a debate, whereas if the Minister of
Justice is the only one involved, a debate is avoided.
The Chairman: If I could, I should like to move us back from a discussion among
ourselves to questions for the panel.
Senator Beaudoin: I am very satisfied with your answer. You say that there is a
problem. As a lawyer and as a member of the bar, you say that the independence
of this tribunal needs to be demonstrated more clearly once it has received a
request from the commission. I agree with this point. I am not saying that all
members should be legal experts, but if we want human rights tribunals to act at
arm's length from the government, we must give them the autonomy to do so. I am
satisfied with that response. However, my question is this: Do we need to amend
The Chairman: I believe that was really a comment rather than a question,
Senator Beaudoin: That is right, it was a comment, following my question.
Senator Cogger: I want to thank you for your presentation and let you know that
I fully agree with you when you suggest that we delete in section 15 the words
"considering health, safety and costs", and that we leave it up to
the courts to interpret the expression "undue hardship". I have to
tell you that other witnesses have taken the same position.
Senator Gigantès: Which line are you referring to and on which page?
Ms Caron: Clause 10 of the bill on page 7.
Senator Cogger: Clause 10 amends section 15. The Quebec Bar is proposing to
delete the words "considering health, safety and cost" at the very
end of the first paragraph.
Senator Gigantès: Disabled groups like these words and employers do not,
judging from the testimony that we have heard thus far.
Senator Cogger: You should not be so categorical. Ms Falardeau-Ramsay feels that
the concept of "undue hardship" should remain. However, you are
telling us that when a panel is set up to hear a complaint, it would be
composed of three members, including the chairperson who would be a member of
the Bar. What happens when a complaint is heard by a panel of one? Are you
telling me that all commission members should be lawyers?
Ms Brosseau: No, that is not what we are saying. The chairperson of the tribunal
must be a jurist.
Senator Cogger: That person will act alone and as chairperson. I would point out
to you that pursuant to section 50.(2), "the member or panel may decide
all questions of law or fact necessary to determine the matter".
Ms Caron: It is a matter of opinion. A member of the Bar is in a better position
to recognize problems associated with the administration of evidence and to
appreciate case law than someone without any legal training.
Senator Cogger: Is this not what the legislator was trying to say by giving the
chairperson the power to retain the services of an expert?
Ms Brosseau: No, it is not the same thing.
Senator Cogger: That is your interpretation.
Ms Brosseau: There is some confusion about this expert.
Senator Cogger: Pursuant to section 48.8, the chairperson may retain the
services of an expert. Is that not correct?
Ms Caron: The expert in question can be someone with special knowledge of
construction, medicine or matters relevant to the case.
Senator Cogger: The provision states that the expert is on hand "to assist
or advise members". What is there to stop the member of the tribunal who
is not a lawyer from having by his side an expert who just happens to be a
member of the Bar and who can help him decide points of law?
Ms Brosseau: Why engage the services of two persons when one person would be
Senator Cogger: However, the alternative would be either for all members to be
lawyers or for someone on the panel not to be a lawyer and not have access to
the services of an expert, and nevertheless be required to rule on points of
Ms Caron: Some panels have one or three members. It is not necessary for all
members to be lawyers. In the case of three-member panels, some members may not
be legal experts. However, in the case of a one-member panel, that person
should be a jurist. Non-jurists would be appointed only to two or three-member
Senator Doyle: Perhaps you can help me, Madam Chairman. On those human rights
commissions that do not require the chairman to be a lawyer, is it common
practice for them to hire a lawyer to advise the chairman?
The Chairman: Apparently not.
Senator Doyle: Would they countenance hiring a lawyer to advise them?
The Chairman: If I may quote from yesterday's evidence before us by Ms
The practice of the tribunal is that cases are ordinarily chaired by lawyers. In
the 19 years that we have been in existence, there has been only one case not
chaired by a lawyer and that was the first case before the panel.
Senator Doyle: Why not make it an article of faith and say hire a lawyer when
you are in need of a chairman?
Senator Gigantès: After the errors of the first case, they hired lawyers
for all the other ones.
The Chairman: That is the practice now. It is not entrenched in the bill before
us. I assume that they will continue the practice. This may well be something
that we can talk about later in terms of an amendment.
Senator Gigantès: It is very enjoyable to have such knowledgeable
witnesses here to present their views to us. I still have some problems with
the issue of independence in the case of part-time judges. Professional judges
are accountable to the judicial council and this, I would assume, gives them a
certain measure of independence. We forget that judges are human beings, that
they have some biases, that they make mistakes and that they sometimes condemn
people who are not guilty. They have the independence to make these mistakes on
their own without interference from anyone. I fail to see how this independence
can be asserted if they are not professional judges.
Ms Brosseau: On the one hand, we have the issue of judicial independence, while
on the other hand, we have the independence of the institution. We referred
earlier to the fact that we want the tribunal to be independent of the
commission. What about the independence of the judge? Judges and the tribunal
chairperson are two factors to consider. We were not talking about aspects
having to do with the judge as such, but about those tied to the institution. I
sense a certain amount of confusion regarding the tribunal itself.
Senator Gigantès: However, the commission requests, not demands, that the
tribunal appoints someone. When it receives a request, the tribunal is not
required to oblige. A request is merely that, not an order. Therefore, both
bodies are independent. The commission cannot order the tribunal to appoint any
one person in particular.
Ms Caron: The fundamental intent of the bill is sound. I see nothing here in the
way of ill intent or complicity when it comes to accepting or rejecting cases.
It is a matter of changing the wording of the bill to ensure that the intent is
not only sound, but clear.
Senator Gigantès: We are all a little paranoid here. On a committee such
as this, one has to be.
Ms Caron: In some instances, the Canadian commission was criticized for its
position, because the law could perhaps suggest that to ill-intentioned
The Chairman: Before we go on to another question, I would point out that that
is the present wording in the act.
Senator Gigantès: When Ms Brosseau explained why the bar was opposed to
the reference to "full and ample opportunity" in section 50.(1) on
page 19, Senator Beaudoin remarked, and others agreed with him, that this
reference was to opportunity, and not to the degree of evidence required. You
did not give us a concrete example of the possible problem that this could
Ms Brosseau: We did not, because we were simply raising a question about this
provision and the standard which appeared excessive to us. When we examine a
bill, we try to get an overall picture of it. In the context of human rights,
we found this standard excessive in that it went much too far. This is a
concept which relates to criminal law and is therefore not in keeping with the
spirit of the legislation. This was one of many possible examples that we could
have given. We mentioned it not because we want you to change the intent of
this provision, but rather because we want you to change the wording used. We
have researched this matter and we are here because we feel it is important to
clarify this issue, so that the law will not be challenged at some future date.
That is why we brought this point up. We do not have any concrete examples to
give you. We merely wanted to raise a question about the scope of the provision
Senator Gigantès: Madam Chairman, all of these issues have to do with the
fact that the French and English versions of the bill are not consistent
enough. This is a point that should be raised with the Minister or Deputy
Minister of Justice.
Ms Brosseau: We did mention in our brief that generally speaking, the English
and French versions are not totally consistent with each other. Official
languages being what they are, provisions are always open to interpretation.
Senator Gigantès: Perhaps we should force the people who draft the bills
in each of the two official languages to communicate occasionally with one
The Chairman: Senators, I would remind you that we do have another panel waiting
to appear before us this morning.
Senator Lewis: I am afraid that I will have to ask my questions in English.
Ms Brosseau: That is fine.
Senator Lewis: I believe Bill S-5 is the same as Bill C-98.
Ms Brosseau: Yes. Basically, it had to be for it to have been sent directly to
the Senate. The bill had already been tabled last April.
Senator Lewis: That was in the House of Commons, I believe. Did you have
occasion then to make submissions on Bill C-98 as you are doing here today
Ms Brosseau: No.
Senator Lewis: This is the first time you have done so?
Ms Brosseau: Yes.
Senator Lewis: And you did not make those submissions to the department?
Ms Brosseau: No, not at all.
The Chairman: I understand that the bill died on the Order Paper in the House of
Commons before it could be referred to committee.
Senator Lewis: You did not have occasion to make any submissions, so is this the
first occasion that you have had to do so?
Ms Brosseau: That is correct.
Senator Lewis: I understood you to say that you question the provision in clause
48.5 on page 16. I think you questioned the provision that the members of the
tribunal "shall reside in the National Capital Region". The clause
states "full-time members", whereas in the previous clause it provides
that only the chairperson and vice-chairperson are to be full-time members of
the tribunal. The provision contained in clause 48.5 would only apply to the
chairperson and the vice-chairperson. That is the how I read it.
The Chairman: The other members can reside elsewhere. They may be either
full-time or part-time members.
Senator Lewis: If they are full-time members, then they would have to reside in
the National Capital Region. It seems as though you could have members of the
panel residing in other parts of the country, which would cover that situation.
Ms Brosseau: We have some reservations about the representation issue. The goal
is to ensure full regional representation on the tribunal. Clearly, this
provision is borrowed from the Federal Court Act where the status of the
tribunal is clear. There is no problem there. However, in this case, we are
dealing with an administrative tribunal and regional representation is
important. The tribunal attracts highly qualified people who must move their
family to the National Capital Region. That is why we stress the fact that we
do not see the need for requiring members to have a permanent residence in the
National Capital Region. Like senators or members, they could have a secondary
residence in the region, but not necessarily their permanent one which would
mean having to move their entire family here. That is not necessary.
The Chairman: I should point out here that the wording does not say "reside
permanently", it just says "shall reside". I should also point
out that all parts of this country are represented in both the House of Commons
and the Senate by people who live part time here in Ottawa.
Senator Lewis: I think we can sympathize with the remarks of the witness.
I brought that up because the intent seems to be that only the chairperson and
vice-chairperson would be required to reside in the capital city, but other
members, unless they are appointed full time, are not required to do so.
Senator Jessiman: I would like to expand on that point. Do the hearings of the
Human Rights Commission not take place in Ottawa?
Ms Caron: No, hearings are held across Canada.
Ms Brosseau: They take place all over the country.
Senator Jessiman: They are itinerant, that is, they move around the country.
Ms Brosseau: Yes.
Senator Jessiman: I can see your point, then. I thought most of these hearings
would held be in Ottawa, as are the hearings of the Supreme Court of Canada.
Ms Brosseau: This is more like the federal court which is an itinerant court.
Senator Jessiman: Which provision in the act allows them to move around?
The Chairman: It has been suggested that we clarify this point with the
officials later. I trust the minister's staff is making notes of this.
Senator Beaudoin: I have one little point.
You have piqued my curiosity about clause 4 which amends section 627.
The judge may permit a juror with a physical disability [...] to have technical,
personal, interpretative or other support services.
You stated that the person providing this support should not become a thirteenth
juror. I would hope not. It seems to me that a person who requires the services
of an interpreter is free to request assistance or not.
Ms Brosseau: Pursuant to Bill S-5, the person providing interpretive support is
sworn in by the clerk of the court. I mentioned this in my brief and I would
have to look at this again. The issue of the thirteenth juror comes into play
in the case of a person with a hearing impairment or physical or mental
disability. For example, someone suffering from paralysis or someone who is
incapable of speech would need a translator to assist him.
In the case of a hearing-impaired person, a different language is used.
Hopefully, that person would not interpret in his own way the jury
deliberations. The problem does not arise when the jurors are in court, but
rather when they are deliberating.
Senator Beaudoin: The interpreter would be seated with the jury?
Ms Brosseau: He would have no choice in the matter, since the juror would be
deaf and incapable of speaking.
Senator Beaudoin: Is this a new provision?
Ms Brosseau: Yes. The legislation is being adapted. Allow me to refer back to
the brief where I quoted the beginning of this particular clause. The clause
refers to a person who:
[...] is otherwise qualified to serve as a juror [...]
Whether or not that person is qualified to serve as a juror is not determined in
this provision of Bill S-5, but it does leave us with a question. We may be
wrong, since we do not profess to have the absolute truth. However, has any
consideration be given to way in which this provision was drafted?
Senator Beaudoin: If it is simply a matter of interpretation, then there is no
problem. If you have a witness who speaks a language that no one understands...
Ms Brosseau: We are talking here about a person with a disability. We are not
talking about interpretation or translation.
Senator Cogger: If someone is translating from Serbo-Croatian into English...
Ms Brosseau: That is not the issue.
Senator Cogger: You are not in a position to evaluate whether the interpreter is
interpreting the debate and altering the meaning of it.
Ms Brosseau: In this case, we are dealing with a jury. The jury weighs the
evidence in criminal law proceedings and the outcome could be quite dramatic
for the accused party. The jury deals with serious offences.
Senator Cogger: Similarly, an interpreter translating from Serbo-Croatian into
French could say something which may lead a person to be sentenced to death. We
have to rely on the quality of the interpretation and accept that once the
interpreter has been duly sworn in, he will carry out his duties in an
Ms Brosseau: However, we are not dealing with the same thing.
Senator Beaudoin: Are we not talking about a language interpreter?
Ms Brosseau: The issue of sign language for the hearing impaired is totally
different. The person providing technical support will be sworn in like the
other jurors. Our concern is with the constitution of the jury. It is not the
same thing as the court weighing the evidence in a given case. When the jury
retires to deliberate, this person will have no other choice but to associate
with this jury and to become in some respects the thirteenth juror. We need
assurances that this person will not take part in the deliberations.
Senator Beaudoin: The thirteenth person is not the one who says: guilty or not
Ms Brosseau: No, but that person will, if acting as an interpreter, tell jury
members: the other juror has just told me that she finds the person guilty or
not guilty. This thirteenth person may participate in the deliberations in one
way or another. We cannot control this. We are asking you today if you have
thought at all about the consequences of this provision. Have you given this
matter any thought? This person would be a kind of thirteenth juror. Do you see
the difference between the interpreter and...
The Chairman: This may involve a difference of opinion, but I think we have
delved into this area and we will have to think about it again.
With the permission of the committee, I wish to thank you very much for
appearing before us. You have certainly given us a lot of food for thought.
Our next witness is Margot Young, a member of the National Steering Committee of
the National Association of Women and the Law. She is an associate professor at
the University of Victoria, Faculty of Law.
Welcome, Ms Young. Please proceed.
Ms Margot Young, Member, National Steering Committee; Associate Professor,
University of Victoria, Faculty of Law: Thank you for allowing me to appear
before you, Madam Chair.
The National Association of Women and the Law is a national non-profit
organization dedicated to the advancement of women's equality through
legislative and law reform, advocacy, education and research.
I have a few comments to make about the bill before you today and then I will be
happy to entertain questions.
I will preface my comments with a reminder that the Canadian Human Rights Act is
a central piece of the scheme of human rights protection in Canada. Enacted in
1977, the act confirms that Canadians are entitled to live their lives free
from discrimination and to have access to full participation in Canadian life.
In doing this, the act reflects Canada's international commitments, both in
terms of the UN Declaration on Human Rights and the two UN covenants on civil
and political rights and on social, economic and cultural rights.
The Canadian Human Rights Act applies to both public and private spheres under
the regulatory control of the federal government. Therefore, the act binds the
federal government in its role as employer and service provider as well as
binding any federally regulated business or industry.
The Supreme Court of Canada has repeatedly recognized the fundamental and
special nature of human rights legislation. Indeed, the court has characterized
human rights legislation as quasi-constitutional, bearing witness to the
importance of this legislation.
As well, human rights legislation has played an important role in the
development and interpretation of constitutional rights, particularly with
reference to the development of equality rights under the Charter of Rights and
The character and scope of the Canadian Human Rights Act is essential to the
human rights environment in Canada. I urge the committee to be both proactive
and ambitious in its approach to the proposed legislation before it today.
I wish to make three types of comments today. First, I want to make a series of
comments that note the positive additions in the legislation, those sections of
the legislation which NAWL strongly supports.
I will begin by commending the federal government for inclusion within the bill
of various provisions, the first being the provision for recognition of
multiple grounds of discrimination. This is an important recognition in
allowing the act to cover more fully and competently the kinds of
discrimination that Canadians experience today and to give full expression to
the types of harms that discrimination brings about.
As well, I commend the bill's express recognition of direct and indirect or
adverse affect discrimination, the creation of a permanent full-time tribunal,
the requirement that the commission report directly to Parliament rather than
to the minster of justice, and the ability that the legislation gives the
commission to initiate the complaint process on its own initiative rather than
to wait for an individual complaint being brought forward. It is the position
of NAWL that these changes add to the effectiveness, coherence and independence
of the federal human rights protection scheme.
I add to these comments the caveat that in order to realize the positive
potential of the creation of a full-time permanent tribunal, it is critical
that the government take seriously the appointment of members of that tribunal,
that the appointment process be a transparent one and that it result in the
appointment of qualified experts in human rights protection and individuals who
are representative of the groups within Canadian society who are most needy of
the protections offered by the Canadian Human Rights Act. In this respect, I
think that process would be well advised to include consultation with
equality-seeking groups which represent disadvantaged individuals in Canadian
My second set of comments, also brief, has to do with the critical assessment of
features which are not included within the proposed legislation which, from
NAWL's perspective, unfortunately have been left out.
The first has to do with the absence in the proposed bill of any reference to
poverty or social condition as a prohibited ground of discrimination. NAWL's
position is that the omission of social condition as a prohibited ground of
discrimination speaks distressingly of the government's complicity in the
continued disadvantage and marginalization of the concerns of low-income
Canadians and that this failing allows the Human Rights Act itself to remain
discriminatory and, arguably, unconstitutional.
Also missing from this bill is an explicit extension of the section 16 provision
for affirmative programs to groups disadvantaged on the basis of sexual
orientation. Again, it is NAWL's position that this is a discriminatory
omission which reinforces structures of societal disadvantage. It would be a
simple matter to extend the coverage of section 16 by omitting within that
section the list of prohibited grounds and simply referencing within that
section the more complete list of prohibited grounds set out in section 3(1) of
the act itself.
Finally, I would emphasize that the proposed legislation lacks reference to the
longstanding commitment on the part of the government to a full scale review of
the act. As understandings and conceptualizations of discrimination and of the
problems and harms of inequality have developed and advanced, the act has, in
some ways, become outdated or not as effective as one might wish it to be. What
is needed is an overall review of this statute. It has been 20 years since it
was originally created.
My third set of comments has to do with the identification of problems with some
of the provisions which are contained within the proposed legislation.
In particular, I draw to your attention NAWL's concerns about the proposed new
section 15(2) which establishes a statutory duty to accommodate with the
accompanying defence of undue hardship. As you know, the proposed legislation
stipulates that once a complainant establishes a case of discrimination, the
respondent has the obligation to accommodate the aggrieved individual. However,
available as a defence to a failure to accommodate is the excuse that
accommodation would occasion undue hardship. More specifically, employers or
service providers may only rely upon the available exceptions of a bona fide
qualification or bona fide justification if they are able to establish that
accommodating the needs of the individual affected would impose an undue
Put differently, under the proposed section 15(2), a respondent is relieved of
the obligation to address the discrimination, if to do so would result in an
undue hardship. The provision of the duty to accommodate accompanied by the
defence of undue hardship must be understood as a limitation on equality.
Existing human rights jurisprudence or case law under human rights legislation
already recognizes a defence of undue hardship to adverse affect or indirect
discrimination, that is, to discrimination which results from the imposition of
some rule or practice that is facially neutral. The Supreme Court of Canada has
already articulated a list of factors to be considered in relation to undue
hardship, which include such things as financial cost, disruption of a
collective agreement, the morale of other employees, the interchangeability of
workforce and facilities. As part of these considerations, the Supreme Court of
Canada will look to the size and scope of the operation in question.
The proposed legislation before the committee identifies only three factors
which are relevant to this new statutorily located defence of undue hardship.
They are health, safety and cost.
NAWL's concern lies with the last of these three factors, that is, with the
stipulation of cost as a consideration to be taken into account with respect to
the establishment of an undue hardship defence. NAWL's concern is that the
inclusion of the term "cost" in this list communicates or reinforces
the legitimacy of tolerating discrimination if it is "too costly" or
if it is "costly" to rectify such discrimination. The result of this
may well be that rights are traded off against expense and that the
anti-discrimination measures of the act are watered down.
NAWL's position is that this raises the dangerous possibility, although I think
the very real one in this climate of fiscal conservatism, that human rights
protection becomes a question of rights we can afford and rights we cannot
afford. Such an approach to human rights protection is simply unacceptable.
Although the concepts of the duty to accommodate and its accompanying defence of
undue hardship have been developed in the context of discrimination on the
grounds of religion and disability, its inclusion in this matter with the
proposed legislation could make these contexts relevant to discrimination on
the basis of all the grounds prohibited within the statute. For instance, the
defence of undue hardship would become applicable to any form of discrimination
experienced by all women.
One can imagine particular examples where this would lead to situations which do
not seem particularly conducive or supportive of our human rights and equality
commitments. Consider, for instance, the example of women workers who, because
of pregnancy, may require adjustments in work schedules or job
responsibilities. Such adjustments may well be costly. Are we to say that these
costs could possibly justify the denial of workplace equity to women, having
already accepted the fundamental importance and value of an inclusive
workplace, a workplace that allows for the full participation of individuals
regardless of their particular pattern of reproductive involvement and that
permits the full professional development of individuals notwithstanding the
gender of those individuals? How, then, does it become coherent to assert that
this larger and fundamental principle can be subverted by cost concerns?
Already we see that it is the pattern among respondents to human rights
complaints to point to costs, whether they are minimal or otherwise, to
disqualify clear claims of discrimination. Some examples of arguments put
forward by respondents are represented, for instance, by the recent Supreme
Court of Canada decision in Elderidge v. British Columbia in which the
provincial government argued that the costs of providing sign language
translation as one of its insured health care services justified the failure of
the provincial government to provide those translation services.
Similarly, large companies, like banks, have also argued that they should be
given relief from their human rights obligations in the name of budgetary
constraints. We see in a recent Ontario decision, under the Ontario
legislation, that the Ford Motor Company was successful in arguing that a cost
of $7,000 constituted undue discrimination.
This clearly does not send a very strong message about the value we place on
human rights protection. It is our position that the Human Rights Act should
not send the message to courts and tribunals that such fiscal claims can trump
our equality commitments.
Moreover, the Canadian Human Rights Act applies predominantly to the federal
government and to large national companies for whom cost considerations are
arguably not serious enough to warrant relief from their obligations to observe
human rights protections.
The Supreme Court of Canada in its Charter jurisprudence has rightly refused to
recognize cost as a legitimate factor in the justification of an infringement
of an individual Charter right. Cost implications may and have played a role in
determination of appropriate remedy, but they do not allow the justification of
the infringement or violation of a right. It is disturbing that the proposed
legislation would codify the legitimacy of these sorts of arguments which have
been rejected elsewhere in other human rights settings.
Understanding equality or anti-discrimination measures as a duty to accommodate
is in itself a less than fully desirable way of conceptualizing what
appropriate anti-discrimination provisions ought to be. However, if we frame
human rights protection in the terms of a duty to accommodate, it is extremely
important that the defence of undue hardship be worded very narrowly.
It is also NAWL's position that the inclusion of cost as a factor justifying a
finding of undue hardship will also foster a body of human rights law which
will become increasingly unable to address the needs of the most marginalized
in our society. Recognition and remedy of the more severe forms of
discrimination will often entail the most costly measures. They will entail
often quite extensive changes to the structures, the institutions and the
programs found in our society.
The most disadvantaged will often need the most radical and extensive remedies.
By allowing cost to determine who does or does not receive a finding of
discrimination in a corresponding remedy, one simply ensures that human rights
law offers only minimal and marginal and, ultimately, quite ineffective change.
If we take seriously our commitment to create a just and equitable society, it
is important that we do not allow the price of equality to determine who has
access to equal opportunities and to full participation.
NAWL would urge the committee to strike out the reference to cost in the section
which deals with the factors to be considered in relation to the defence of
undue hardship. If the committee does not see fit to do this, NAWL strongly
urges that, at a minimum, the committee consider inserting the modifier "excessive"
before the word "cost" in order that a clear message be communicated
that the priority of this legislation is equality and that cost, as a factor
preventing addressing discrimination, must indicate more than minimal, trivial
costs. It must in fact be a significant and excessive cost.
I have noted from the transcripts of the committee's other hearings on this bill
that the issue of the regulatory power contained within the proposed
legislation has been raised. I refer to the power of cabinet to make
regulations relating to the defence of undue hardship. I would simply echo the
concern that this is not the most appropriate placement of this regulatory
authority. Given the fact that the government is most often the respondent in
complaints under the Canada Human Rights Act, the provision which allows for
cabinet to set regulations about what defence is available to the government
with respect to undue hardship undermines the integrity of the protections that
the act offers. This undermines the message that these human rights protections
are to be taken seriously and that they have fundamental public importance.
Senator Jessiman: Did you say you prefer to limit cost to "excessive cost"?
Ms Young: We prefer deletion of the term; however, our second position is that
we would like to see inserted the term "excessive" before the word "cost".
The kind of regulatory power to effect the definition of undue hardship to which
I have just referred belongs more properly in the hands of the Human Rights
Commission, which is a body with expertise in these matters and with a
statutory mandate to advance the cause of human rights protection.
Moreover, the provision in the proposed legislation for these regulations does
not adequately allow for the involvement of groups representing disadvantaged
individuals with specific equality concerns in the process. It does not
adequately allow for the kind of consultation that is important with respect to
this essential element of the legislation. It allows for consultation, but there
is also the stipulation that, within six months, the regulation can go ahead
regardless of whether the commission has reported back.
We would like to see stronger protections or stronger indications of the
importance and necessity of a consultative process with these groups.
A number of equality-seeking groups have requested appearances before the
committee and have not been given the opportunity to appear. Specifically, the
Women's Legal Education and Action Fund and the DisAbled Women's Network would
like to have representatives appear before the committee and have not been put
on your schedule. There is great concern within the women's groups that these
groups have an opportunity to present their views. As I am sure has become
apparent to the committee, there is some disagreement between equality-seeking
groups on the advisability of including the duty to accommodate and the
accompanying defence of undue hardship. I would urge the committee to
reconsider its decision not to extend these hearings to allow groups,
particularly the DisAbled Women's Network, to have a chance to appear before
The Chairman: Over 30 different groups have asked to appear before this
committee. We have tried to ensure that the point of view of every group was at
least advanced so that we could take it into consideration.
The last group that you mentioned comes under the umbrella group that we heard
Ms Young: I believe there is a disagreement within the disability rights
community over the perspective to take on this proposed legislation. It is my
information that the perspective of DAWN on the legislation differs from the
disability rights group you heard yesterday. I would particularly urge the
cause of DAWN as a necessary group for the committee to hear, given that it
represents both the concerns of women and of disability rights.
The Chairman: We received yesterday a brief from DAWN. It will be distributed to
members of the committee tomorrow.
Senator Beaudoin: Ms Young, you referred to a full-time tribunal. I do not have
any objection to that. You also referred to appointments, but I did not
understand what you are suggesting. Are you proposing a new kind of appointment
or something else, some new qualities?
Ms Young: I am not proposing any alternative scheme. I am simply making the
point that it may be desirable for the committee in its report to remind the
government of its obligations to ensure that the appointments to this permanent
tribunal are of a high calibre and that there is the need for tribunal members
to have expertise in the area, as well as be representative of the groups within
Canadian society which have distinctive equality concerns. It is not a comment
per se about the legislation; it is a side comment about the political
realities of government appointments and the need, in this context, for those
appointments to be substantively sound ones to fully capitalize on the benefits
that can accrue from having full-time, permanent tribunal members.
Senator Beaudoin: What background should they have? Should it be in the area of
law, human rights or something else?
Ms Young: There are a number of factors important to the background of tribunal
members. Legal knowledge is often very critical in tribunal proceedings.
Knowledge of human rights, of the concerns of groups whose equality interests
are most at stake in this legislation, are quite critical. I do not think that
one must be a legal expert in order to be a human rights expert or to be an
effective tribunal member. Some of the most impressive human rights experts
within Canada are not people who are legally trained but are people who have
extensive experience and knowledge of the human rights protection system.
A variety of these factors are important. I understand the committee has spent
some time talking about the necessity of inclusion of lawyers in individual
panels and on the tribunal. However, one can get the kind of expertise and
proficiency in human rights protection that is desirable from individuals who
are not legally trained but who have other kinds of valuable experience and
exposure to the subject area.
Senator Beaudoin: I come from a faculty of law as well, where a course in women
and the law in always offered. I understand that in each faculty of law there
is some kind of an association of women and the law. Does the one that you are
from represent the whole of Canada?
Ms Young: That is right. It is a national organization which has a head office
in Ottawa with a staff and steering committee representing the different
regions of which I am a member. It also has local chapters. Some of these
chapters are in law schools. For instance, at the Faculty of Law at the
University of Victoria, we have the Victoria chapter of the National Association
of Women and the Law.
Some of the local chapters are primarily made up of members of the bar and
practising lawyers. There is some variety at the local level, but it is an
umbrella organization with a national office.
Senator Beaudoin: How many are you?
Ms Young: There are 12 members on the National Steering Committee. We have two
and one-half paid staff members at our national office. As to the number of
local chapters, I am sorry, I cannot give you the exact number.
Senator Beaudoin: Is there one in each province?
Ms Young: Yes. In some provinces, such as Ontario, there are more than one.
Senator Beaudoin: You suggest that we add poverty as another item to consider.
Would it not be better to add "social conditions" as well?
Ms Young: I did say poverty and social conditions. I mentioned the term "poverty"
because I wanted to convey what the substance of my concern is which is about
low-income individuals. However, the term "social condition" may be a
better term to put in the legislation.
Under the Quebec charter, there is already jurisprudence as to what that term
means. It captures, quite adequately, the range of concerns that are
distinctive in terms of discrimination from the perspective of low-income
Senator Beaudoin: We already have some cases on the meaning of that expression.
Ms Young: Within Quebec law, yes.
Senator Doyle: When you were speaking on this point, you spoke about rights
being traded off against expense. A moment or two later, you were talking about
pregnant women. I missed the point you were making about pregnant women. Could
you give me that again?
Ms Young: The point I was making about pregnant women was to serve as a concrete
illustration of the ways in which anti-discrimination measures, for which there
is wide acceptance in society, may entail costs that, under a wide reading of
the defence of undue hardship, may legitimate an employer's failure to provide
those anti-discrimination measures.
I gave the example of women workers who, because of pregnancy, may require some
shift in their job schedule or in their job responsibilities and that this
shift in responsibilities or scheduling may occasion costs on the part of the
employer. That situation would be distressing if the existence of those costs
were to justify that employer's failure to accommodate the needs of its pregnant
Senator Doyle: To what extent are women protected by programs of pregnancy
Ms Young: There are legislative protections under employment standards. There
are individual protections in the form of collective agreements or some other
form of workplace agreement for employers to provide additional benefits or
provisions for both maternity leave and pregnancy leave.
There often arises situations in which the context of specific employment,
certain job activities or scheduling can become difficult, impossible or even
health risks for pregnant women. Accommodation of these needs is usually done
on an individual employment context basis.
The legislative urge or motivation for employers to do this is typically human
rights legislation. That failure to accommodate the needs of pregnant workers
can be seen to be an infringement of the prohibitions against gender
Were cost available as a defence against those obligations under human rights
legislation, there are quite serious potential consequences for the
legislation's ability to encourage or to force employers to bring about a more
equitable work environment.
Senator Doyle: I hope you do not rely on a Supreme Court reference to get you
where you are going.
I have one other question. I was surprised that in your list of areas where we
need improvement, you did not mention the wholesale downsizing of both men and
women who are in the 40-to-50 age group, and who seem to me to be the chosen
lot for this phase of downsizing. Were not going to raise the question of age
discrimination here? It seems to me that if you practise age discrimination on a
sufficiently large scale, there is no loud opposition.
Ms Young: The act provides protections against age discrimination, and it may be
that there has not been aggressive enough pursuit of enforcing these
protections in the scenarios that you describe, senator.
This may be taking us off on another tangent, but I think it is an important
one. By allowing the commission to initiate complaints, the situation is
created whereby the process need not rely upon an individual who has suffered
age discrimination to come forward with her or his own complaint. In that
scenario, it is possible that enabling the commission to have a more proactive
role in advancing anti-discrimination measures and concerns could deal with the
kind of problem you identified where there has not been aggressive individual
pursuit of that complaint but there is, nevertheless, a very observable
condition of discrimination.
Senator Cogger: Are you telling us that you would like the bill to be amended so
as to remove cost as a consideration?
Ms Young: Yes.
Senator Cogger: Is it also your position that, failing that, we should add the
Ms Young: Yes. I think "excessive" is probably a stronger term than "substantial",
but that is our position.
Senator Cogger: Let us look at your second position. Is it not a fact that by
the time the cost is excessive, it will have caused undue hardship? You are
saying we evaluate undue hardship with regard to considering excessive costs.
It seems to me it is a redundancy. If the cost is excessive, in my view, one
would have to conclude it imposes an undue hardship. Either we have cost as such
as a factor or not. If we have it, excessive costs will be something that will
be determined in the evaluation of the hardship, which may be undue or not.
Ms Young: I see what you are stating and I will just pose back to you the
dilemma that we are in. We are concerned that the cost must be more than a
minimal, trivial, affordable, acceptable cost.
Senator Cogger: If it is trivial, it will not cause undue hardship.
Ms Young: It is unclear how the factor of cost will be read to constitute undue
hardship. As I said before, there is concern that there will be tribunal
decisions like the recent one in Ontario which found a $7,000 cost to be an
undue hardship for the Ford Motor Company. There is a concern that such
decisions will proliferate and that there is a need for the legislation to be
much more specific and say that the cost must, in fact, be excessive. The
finding of undue hardship is a serious matter.
Senator Cogger: You are probably aware that some people have suggested -- and I
agree -- that we remove considering health, safety and cost altogether. In
other words, we would have the concept of undue hardship, period, and we would
The difficulty I have with your position is that it makes me wonder why you
would bother creating a tribunal, appointing a chairperson and a
vice-chairperson, with lawyers and whatnot, bringing them here to Ottawa, if in
the same breath you are trying to give them so many standards, criteria and so
on that eventually you will either try to limit their discretionary power, or
you indicate so little confidence in their ability to exercise appropriate
judgment, that you give them the job and throw the book at them at the same
Ms Young: Those are the two extremes between which legislative drafting always
oscillates. There is a concern that the legislative intent be clear and that
the discretion that is left for the tribunal to exercise be exercised in the
right direction and that all the appropriate indications of what that direction
is should be given in the legislation. I do not think that insertion of the word
"excessive" in relation to cost problematically constrains the
discretion of the tribunal. I think there is a lot of interpretive room still
available. Nor do I think that it indicates an inappropriate distrust in the
tribunal. I take those to be the two concerns that underlie your comment,
Senator Cogger: You will appreciate also that from many groups, particularly the
service providers, of course, there is a great deal of reluctance or difficulty
with the bill as it is, where it allows for what have been characterized as
victimless complaints. That is one side of that equation. How do you respond to
that? Some have expressed concern that bringing complaints will become a cottage
industry, and we already have a commission where apparently the lead time is
about 40 months or 45 months. Perhaps they do not need a whole lot of further
complaints, especially when they are victimless.
Ms Young: There is a very cogent and powerful response to that concern. I would
begin by pointing out that it is not about victimless complaints. In fact, I
think that is a mis-characterization of the process. It is about initiating a
process where there has not been a formal complaint lodged by an individual. In
fact, there will be victims, there will be specific instances of discrimination,
which will lead the commission to conclude that there is a possible problem of
discrimination and to initiate proceedings on its own with reference to very
concrete situations it has observed happening in the particular workplace or in
a situation of service provision. This change in the responsibilities of the
commission reflects what has been for quite a while a very serious concern about
the inadequacies of human rights protection as it has existed in the past in
Canada. That concern has to do with the fact that the process to date is only a
reactive one, and that effective addressing of discrimination concerns often
requires a proactive response on the part of the commission. There are many
instances where it is not feasible, where it is difficult, or not reasonable to
expect that individuals will come forward with complaints but where,
nevertheless, there are a number of very clear problems of discrimination or
practices which discriminate, and it is important that the commission have the
ability to address those circumstances proactively. It is part of a recognition
that effective amelioration of discrimination requires a systemic approach and
not just an individualized one which relies upon reaction to individual
The Chairman: With regard to subclause 10(7), you said you thought that the
Governor in Council should not be in charge of making the regulations. I am
sure, Professor Young, that you realize that all regulations for all acts of
Parliament are passed by Order in Council by the Governor in Council. What
would you suggest, then, as an alternative? We will obviously not set this bill
out of line with every other single act of the Parliament of Canada.
Ms Young: My point pertains specifically to the power in the statute for the
Governor in Council to make regulations with respect to the defence of undue
hardship, not to the broader regulatory power granted in the statute. I do not
think it is appropriate that this power lie with the Governor in Council
because the federal government is more often than not the respondent, or the
party which will be relying upon the defence of undue hardship. Instead, on
this very specific ground, it would be more appropriate for that power to be
granted to the commission.
Under the legislation, the commission has the power to issue guidelines or
interpretive guides to the legislation. This would simply augment that existing
power, but it would locate this specific power with respect to undue hardship
in the commission, which has the expertise and the independent and
uncomplicated mandate of advancing human rights protection.
The Chairman: But the commission will be much more closely tied in with the
Parliament of Canada than this new form of tribunal which will be removed to
greater arm's length.
Ms Young: I do not see that as a problem. The commission already issues binding
guidelines as to the interpretation of provisions of the act. The commission
has a strong mandate to advance human rights protection. It would alleviate
some of the concerns of groups such as NAWL if this power to further define or
regulate with respect to undue hardship did not lie in the hands of the Governor
The Chairman: I understand that that power of the commission is presently before
the courts. The jury is still out on that point.
I thank you very much for your presentation. You have added and reinforced some
of the other presentations that have been made to us.
Colleagues, given Senator Kinsella's time line with respect to reporting the
bill, we will have to write the report immediately after the minister appears
before the committee. If members of the committee have amendments, the earlier
they can bring them forward, the better.
The committee adjourned.