Standing Senate Committee on Legal and Constitutional Affairs
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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 18, Evidence - October 9, 2014


OTTAWA, Thursday, October 9, 2014

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity), met this day at 10:30 a.m. to give consideration to the bill.

Senator Bob Runciman (Chair) in the chair.

[English]

The Chair: Good morning and welcome colleagues, invited guests, members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.

Today we're continuing our deliberations on Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity).

This bill would amend the Canadian Human Rights Act to include gender identity as a prohibited ground of discrimination. It would also add references to gender identity to two sections of the Criminal Code. This is our second meeting on the legislation.

For our first panel today we welcome, from Egale Canada, Ryan Dyck, Director of Research and Policy; and as an individual, Jesse Thompson, who is joining us by video conference from Toronto.

Welcome. I'm assuming you both have opening statements, and perhaps we could begin with Mr. Dyck. Please proceed.

Ryan Dyck, Director of Research and Policy, Egale Canada: Thank you, chair and honourable senators. It is certainly a pleasure to be here today and we are grateful for the invitation to present to you.

I very much look forward to addressing the questions you have regarding any aspect of this bill. In addition to my opening remarks, I'd like to note that I have prepared in particular to address a number of questions that have been raised here previously, specifically relating to international precedents, including Canada's international commitments relating to the bill; the definition of gender identity proposed in this legislation, including its historical and legal origins, as well as the ways in which it has been adopted internationally; the need for explicit rather than implicit human rights protections; the legal necessity of the hate crime provisions; and the legal and constitutional implications of not passing this bill.

What I'd like to do in my opening remarks is address an issue that's been addressed quite a fair bit, both here and in the media, relating to the implications of the bill for the inclusion of trans people in sex-segregated spaces.

I will be very clear: It is Egale's position that trans people have the right to self-identify their gender and to access sex-segregated spaces in accordance with their gender identity. This is a central aspect of the fundamental right to autonomy and self-determination. We recognize the value and importance of women's-only spaces. We believe the trans people who identify as women are women, period. This fact has been recognized in both domestic and international law, with the European Court of Human Rights stating in 2003 that defining one's own gender identity is ''one of the most basic essentials of self-determination.'' However, we also acknowledge questions regarding the inclusion of people who do not identify within the gender binary of male and female within existing binary systems of sex-segregated spaces.

The pursuit of civil rights generally has as its aim one of three outcomes: inclusion within an existing system; inclusion within an amended system; or creation of an entirely new, more inclusive system.

We must acknowledge that this may be a case in which at times the recognition of civil rights for trans people means changing the system or creating in some cases a new system such that everyone is included safely and respectfully. A country such as Canada that recognizes the diversity of its people as a fundamental and valued characteristic of its society should embrace this. This is not unprecedented and in fact, in the case of public washrooms, which have been noted extensively, they have actually been the focal point of civil rights struggles throughout history.

There was a time when public facilities, universities, for example, did not include public washrooms for women. In fact it was not until 1992 that the U.S. Senate chamber on Capitol Hill included washrooms for women. Building codes have since been amended and public buildings are now required to provide washrooms for both men and women. In the U.S. this became known as the Potty Parity movement. In China it's become part of the present day Occupy movement. In 2012, the Economist reported on university women occupying men's bathrooms in universities in China as a way of protesting women's inequality.

There was a time when public facilities did not provide accessible washrooms for people with disabilities. Again, building codes have since been changed and accessible facilities are now required. There was also a time when public washroom facilities were segregated by race. Human rights laws have since been amended and such blatant forms of discrimination are no longer legal. In each of these cases, either laws were changed to include people within existing structures or laws were introduced to change existing structures to be more inclusive. Courts and legislatures did not wait until structures had been changed to amend or interpret the law. Rather, structural change followed from and flowed from legislative changes.

Far more often than not, it is trans people who are at risk of harm in sex-segregated spaces. As we move forward as a society in recognizing and affirming the equal human rights of trans people, we will need to change. We will need to recognize that not everyone fits neatly into the binary categories of male and female, and we will need to provide safe and inclusive spaces for these members of our communities.

Today, increasingly, we see public facilities introducing gender-neutral or all-gender washrooms such that each person has a private and enclosed space in which to relieve themselves, while only the sink is open and shared. This structure is safe and inclusive for everyone and may well be integrated into building codes in the future, flowing from the entrenchment here today of gender identity within human rights legislation.

It may be that similar solutions can be found to work in the shelter system, provided that no one's right to self-identification is infringed and no one is forced to be isolated or excluded based on their sex or gender identity or any other similar factor.

The question of how to balance rights and how to change a system, when necessary, in order to equally recognize, protect and respect the fundamental human rights of two groups can never result in the complete denial of rights to one group. This committee cannot say, ''We do not know how to include you, therefore we are justified in continuing to exclude you and withholding rights from you.''

Inclusion is a process and it takes time. It always does, if for no other reason than it takes time to change attitudes and to dispel prejudice and misinformation. However, we cannot wait to recognize and affirm the basic human rights of trans people until all systems, structures and attitudes have been changed.

This needn't be frightening. We've done it before and, as we look back, it's hard to imagine how we ever did otherwise. I have never known a time when universities didn't have bathrooms for women. I have never known a time when public buildings didn't have wheelchair accessible washrooms. I have never known a time when public buildings segregated bathrooms based on race and people of colour were required to use separate facilities.

I hope the next generation in Canada will never know a time when trans people must endure the physical and psychological violence of living in a country where they cannot enter a public bathroom to relieve themselves or change into a swimsuit without fear of harassment and assault.

The time for this bill is long overdue, and Egale Canada Human Rights Trust urges you to pass this bill without delay and without amendment.

Thank you and I look forward to your questions.

The Chair: Thank you, Mr. Dyck.

Mr. Thompson, please proceed with your opening statement.

Jesse Thompson, as an individual: Good morning. It's a privilege to speak in support of Bill C-279. Thank you for inviting me. I want to tell you a few of my struggles of being who I am.

When Toby's law was passed in the spring of 2012 in Ontario, I knew that my next hockey season I would be able to actually change and be with my team in the change room before and after every game.

When I got to the rink for my first game in a new city with a new hockey association, I looked on the board, saw my room number and put my equipment in that room. I was called to the convener's office, met my coach and was told by the convenor that I had to take my equipment out of that room and dress somewhere else.

Walking back into that room with the players there was embarrassing and degrading, as I was just told that I was not a boy. I didn't know if I wanted to play anymore, and I had been playing hockey since I was 4 years old.

For the rest of that year, players both on and off my team knew that I was a girl and called me a girl because that's all they knew. I was not in the room with my team. This limited my ability on the ice, as I did not want to attract attention, especially if I scored.

Every week when I had to go to the rink I felt humiliated. I wanted to quit playing. Every kid should feel welcome. This was the first season that I ever did not know all the players' names on my team.

My mom emailed Hockey Canada lots of times and they kept saying that I was a girl, as they go by your birth certificate. I had a terrible season. Hockey kept telling me I was not a boy and I knew I was not a girl.

The next season I told my mom that I didn't care; I was going to change in the room with my team. If they kicked me out I was not going to go into another change room; I was just going to leave the arena.

Every Sunday on the way to hockey, me and my mom talked about a plan if I was kicked out of the room I'd rather miss a hockey game than go into a separate change room and deal with my hockey teammates knowing I was a girl again.

That whole season, I dressed with my team. There were no issues at all. Although I still didn't have the support of Hockey Canada, I felt welcome. Most of all, I felt equal and a real teammate.

My mom filed a complaint with the Ontario Human Rights Commission and eventually we settled and I won. I felt validated.

Bill 33 has given me the feeling of being exactly who I say I am. I still can't believe that at 15 years old I needed a lawyer to be included in one of my favourite sports and one of Canada's favourite sports.

I am here today to say that the Canadian government needs to take a stand. You need to make sure that every kid feels safe, protected and included. I'm not asking for anything special and I'm not asking for extra privileges. I am only asking that I have the same rights as any other boy in Canada. I want to know that I can go to college or live in any other province and have the same rights across the country because right now my choices are very limited to the province I know will protect me.

I shouldn't have to worry about safety, lack of inclusiveness or intolerance anywhere in Canada. I should be entitled to have the same rights as my teammates and classmates who sit beside me.

The Chair: Thank you very much.

We will begin the questions with Senator Plett.

Senator Plett: Mr. Dyck, you have in your testimony used a comparison of trans people not being allowed in certain areas. You've used a comparison of Blacks not having been able to be allowed. Mr. Garrison used the same analogy when I asked him about my five- or six-year-old granddaughter not wanting to go into the bathroom or a change room with a biological male. He inferred that it was the same as my granddaughter not wanting to go into the bathroom with an Asian or a Jew. I found that tremendously offensive. I do not believe there is any comparison, when we talk about colour or race, to somebody who is biologically male or female.

In my office I have had people from the trans community and I had a good conversation with them. In fact, they are in the room here today. On some days of the week they identify as male and on some days of the week as female. My issue isn't with the Jesse Thompsons of the world who have made a very clear decision that they be allowed now because they have taken some treatments and they identify entirely as a different gender. My problem is with somebody who one day says he's a man and another day says he's a woman and he or she is allowed in a place for those opposite their biological gender.

Tell me how you rationalize that as the same as somebody not wanting to go into a washroom with an Asian or a Jew or a Black person? How is there even remotely a comparison to that?

Mr. Dyck: We could have a very long conversation about that issue.

Senator Plett: Well, fine, we have some time.

Mr. Dyck: Certainly. What I would say first is that my comparison here today was not to say that race is the same as gender identity whatsoever. My comparison here today was to say that when we engage with issues of civil rights, when we engage with issues of potential or what some may see to be competing rights, there are multiple ways of going about it. There are multiple ways of addressing inclusion that accommodate everyone, for example, the introduction of gender-neutral washrooms. This is a situation, a mechanism, that would accommodate everyone and provide safety to everyone.

Senator Plett: I agree.

Mr. Dyck: I don't think it's quite as simple as saying it's the same as race or that we need to be Black and White and people are in or out. It's about finding unique solutions or proactive solutions to address everyone's concerns, and I think that's possible.

Senator Plett: I support what you're saying. However, we don't have those everywhere. If somebody came along with a bill suggesting that all government institutions have gender-neutral bathrooms, I would support that bill. I have no problem with that. In most public facilities we already have that but we don't have that everywhere. But that isn't what this bill talks about.

You're saying you want this bill passed without amendments, yet you're very clearly suggesting that there is a flaw in the bill because this bill does not allow for that. This bill simply says that I can self-identify as a different gender on any day of the week and I have to then have access to whatever bathroom I choose.

Now, Mr. Dyck, let me say that I share your concerns about violence facing the trans population. I abhor all kinds of violence, all kinds of bullying, and I feel strongly that something needs to be done to address that.

The statistics you and others have raised are troubling and for that reason I am not opposed to the amendment to the Criminal Code. While I have a problem with the vagueness and the broad nature of the definition, I believe that the trans population needs some extra protection when it comes to the Criminal Code.

With that said, do you believe that adding gender identity to the hate crimes section as an aggravating factor in the sentencing section will have a deterrent effect on a violent predator, a violent person who wants to take advantage of anybody that is weaker than him — women, trans people and gay people? Do you think this will deter that violent perpetrator from doing that?

Mr. Dyck: I think this forms the foundation from which we can do work to deter violent perpetrators of crime, absolutely. I think we see that quite clearly in the work we do; for example, our organization across the country working with police officers in their communities to take actions for deterring violent crime. They cannot currently do that clearly because gender identity is not clearly articulated in the hate crime statutes. Without that clearly articulated there is zero precedent in this country of ever interpreting that statute to include trans people.

We've done extensive systematic research through available public law databases. In the 18 years that those statutes have been on the books, there are zero cases of the phrase or any other similar factor being applied to a trans person. It's not working presently, and we need that basis in law in order to do effective education with police services and with communities. I think it will deter crime to the equal extent that the existing provisions in the Criminal Code deter crime and enable people to do programming to deter crime.

The other aspect is that currently Statistics Canada collects data from police services on hate crimes. They release a report every year on police-reported hate crime. Zero information in that report pertains to the trans community and that is precisely because gender identity is not an enumerated ground. By enumerating it, police will report it and record it accurately. It will go to Statistics Canada and we will have the evidence we need in order to examine hate crime more thoroughly and develop more evidence-based crime prevention programming.

Senator Plett: As a lawyer, do you support minimum sentencing?

Mr. Dyck: I am not a lawyer.

Senator Plett: Do you support minimum sentencing? I thought you were legal counsel for Egale.

Mr. Dyck: No, I'm director of research and policy; I'm a policy analyst.

Senator Plett: Okay.

Do you support minimum sentencing?

Mr. Dyck: I do not have a defined position on minimum sentencing.

Senator Plett: Thank you.

Senator Baker: Thank you to the presenters here today.

Mr. Chairman, I'm going to pass my lead time to the sponsor of this bill in the Senate, Senator Grant Mitchell.

Senator Mitchell: Thank you, Senator Baker. Thanks to both Mr. Dyck and Mr. Thompson for excellent presentations. I want to go first to Mr. Thompson.

There are those who believe it's a choice to make a transition; it's a choice to believe that you are somebody who you know you are but biologically it would infer that you're not. Sometimes parents succumb to an illusion, which is that their child may think they want to be another gender and that one day you'll grow out of that.

Could you give us some idea, Mr. Thompson, of what you went through; how you came to this profound conclusion; how you, therefore, had to plumb the depths of your courage to do what you have done; and how your parents assisted you?

Mr. Thompson: Well, when I was a kid, I didn't really know any different. I was just kind of known as Jesse. I hung out with the guys and the girls. It wasn't that the girls hung out over here and the guys hung out over there. We always just hung out. It wasn't until around puberty that I realized this was not me. When I was a kid, I always dreamt that when I grew up I would have facial hair and be a guy. Once puberty hit, I noticed all these changes happening to my body, and they were not the changes I wanted at all. I started getting really uncomfortable with my body and really unhappy. That's what I think about sometimes when people think it's a choice.

Transgender people have to go through discomfort with their body and all the bullying and everything else personally, like in their mind. No kid would want to choose to go through that ever, ever. It's probably one of the worst things you could go through.

I ended up going to a lot of therapy and talking to people. They told me that maybe you're a boy in your mind and you're just trapped in the wrong body; and that's how I started to feel. I always had a lot of support at home from my friends and family.

Senator Mitchell: That's great. Thank you very much.

Mr. Thompson: You're welcome.

Senator Mitchell: Do you have something else you would like to add? I know it's not easy.

Mr. Thompson: No, there's a lot going through my mind right now.

Senator Mitchell: Okay. Thank you very much.

Mr. Dyck, I was really struck by something that you said. I am paraphrasing now, but it was something like: When we don't know how to include someone, we continue to exclude them. It hits a very important note that this kind of legislation — and am I correct in assuming this or in concluding this — is actually the catalyst that stops us from excluding, and using the inability to find a way to include as an excuse for that, and makes us find solutions, as in the case of Mr. Thompson and his experience with the Ontario case and their legislation? Is that a fair assessment?

Mr. Dyck: I think absolutely. This type of legislation acts as the foundation from which to do that type of work. Without that impetus, without having the legal requirement and foundation to respect the human rights of all people, including trans and gender variant people, we have an excuse not to.

Certainly, in legislation and policy development, the human rights commissions develop policy and guidance specifically around the code grounds. That doesn't generally happen unless the grounds are enumerated. That guidance is what helps us, which helps companies, for example, proactively put in place the mechanisms, policies and procedures in order to ensure that human rights are respected.

Senator Mitchell: I appreciate that.

One of the things you said, Mr. Thompson, that was so powerful to me was the sense of inclusion that you got this year. You can be in the locker room and you can be with your buddies. Mr. Thompson plays defence. He's part of the team. I'm very, very impressed by the fact that Senator Plett has accepted the Criminal Code changes here. Excellent.

But it isn't enough just to do the Criminal Code changes. Could both of you comment a bit about the power, I think at least, of the inclusion that is inherent in being recognized in the human rights provisions of this bill and in our Human Rights Act? Mr. Thompson, could you talk a little bit about the impact and have you felt that sense of inclusion?

Mr. Thompson: I felt really happy. I kept saying to my mom that this is why trans kids don't play sports anymore because they have to go through all this stuff and all the fighting. I felt for once like I could stand up there. Yes, I was afraid but at the same time I'm not afraid. You can say to me what you need to say, but I'm still going to stand here and fight for what I think is right and what I believe in. Even kids at school were coming up to me and saying things like, ''You've done such a great thing for all kids all over Ontario. So many more kids are probably going to come out and play,'' and I just felt really happy. It was just such a big thing, and now all these kids can start to feel equal and not have to hide out and stay home anymore. They can go out and see their friends, be a part of their team, go play sports with their guy friends because they can just be equal; they are part of the team now and not left out. I was just really excited and happy.

Senator Mitchell: Thank you.

Mr. Dyck: Certainly as an ally and someone who is not trans, my response would be to relate to you something that was said to me by a trans-woman. Dr. Barbara Perry, who is arguably the world's leading expert on hate crime, and I spent some time travelling across the country interviewing LGBT people with their experiences of hate crime. We published an article in the journal of Critical Criminology earlier this year. A number of quotations we included were specific to the hate crime legislation. This is from a trans woman in the Toronto area who said, ''Trans people, trans women and trans men, are not included in hate legislation in Canada, so you can kill, beat up, fire, ostracize, abuse, shout at and marginalize a trans person, and it is not considered a hate crime. That is a profound isolation. It creates isolation from everyone, in this case Canada, my fellow Canadians, right? I'm not a full citizen in my own goddamn country.''

I apologize for the expletive.

It clearly relays the sense of isolation and the sense of exclusion that simple legislation can relay to people when they are experiencing instances of hate crime regularly in their lives and seeing that their government doesn't care enough to recognize it. I can't overemphasize the profound nature of that.

Senator McIntyre: Thank you both for your presentations.

As we know, the Supreme Court has always had a broad and purposive approach when interpreting human rights legislation. Under Bill S-279, the term ''gender expression'' has been removed, leaving only the term ''gender identity.'' In your opinion, how will the courts interpret this? Do you think that the term ''gender identity'' would be interpreted by the courts to include the expression of that identity? Please elaborate.

Mr. Dyck: In the advice we have retained from our counsel, our belief is that in general, yes, the courts will interpret gender identity to include the expression of that gender identity. I don't think I have that direct quote in front of me. In the past, the Supreme Court certainly has indicated that the expression of identity that is central to that identity is covered. For example, I believe the Whatcott case that recently came before the Supreme Court very clearly articulated that, as did the case of Trinity Western University v. the British Columbia College of Teachers. Certainly, it would be a bit of a departure from jurisprudence to include gender expression directly. Typically with other grounds, such as religion or sexual orientation, we don't include in enumerated lists the expression of religion or the expression of sexual orientation. That has been interpreted by courts to be included, so it is our presumption that courts would include gender expression.

Senator McIntyre: How have the courts been dealing with this matter so far? In your opinion, have they been dealing with this matter as a human rights law or as a criminal law?

Mr. Dyck: Can you clarify that?

Senator McIntyre: Is it more a criminal matter or a human rights matter?

Mr. Dyck: It tends to be more a human rights matter, I would say. Again, we've seen no evidence that the Criminal Code provisions around hate crimes have ever been applied to a trans or gender variant person. It's clearly evident that it hasn't been a criminal law matter. It has been through the various provincial and territorial human rights statutes that discrimination against trans people has been covered.

Senator McIntyre: Thank you, sir.

Senator Batters: Thank you to both for coming today.

Mr. Dyck, I have a couple of questions for you. In five provinces and one territory in Canada, gender identity is explicitly included as a prohibited ground of discrimination in human rights codes for those provinces and one territory. For all other provinces, it's simply encompassed within sex or sexual orientation. I was referring in our last committee meeting to a case in Saskatchewan. I'm from Saskatchewan and you might be familiar with a case that received a fair bit of media attention there. I'm not sure about across Canada, but in a case within the last year, a transgender woman went to a bridal shop in Saskatoon. She was kicked out of the bridal shop or not provided service because of that. Although Saskatchewan does not have gender identity as one of those enumerated grounds, this woman's claim was found to be well-founded under the sex and sexual orientation enumerated grounds.

When Mr. Garrison was here explaining his bill, I asked him about that, and I will ask you the same thing. Clearly, many of these provincial human rights commissions across Canada are using effectively sex or sexual orientation in order to cover these types of claims. Why would it be necessary to include gender identity, specifically?

Mr. Dyck: There are many ways I would respond to that but there are two in particular that haven't been noted as much.

In the case of a Human Rights Tribunal, the outcome is uncertain, and it has not been tested in higher courts, for one. For example, we just saw is a case six months ago in Alberta that reached the Court of Queen's Bench where the Province of Alberta opposed the contention that gender identity was included in that province's Human Rights Act.

So as we go up the courts, it is uncertain. A province or opposing counsel may argue against it, so that uncertainty is something that we need to address. On behalf of the trans community, we need to provide them with absolute certainty, at least at the federal level, that they are included and that their rights cannot be overturned by a different court or challenged by the government. That is incredibly important.

The second aspect I would highlight goes back to the case of Vriend v. Alberta, which I think most people are probably familiar with. The Supreme Court clearly articulated that the Province of Alberta's failure in this case to explicitly include sexual orientation in their Human Rights Code was tantamount to discrimination. In the presence of ample evidence of the discrimination that occurred, by choosing to exclude sexual orientation and perpetuate the invisibility of lesbian and gay people, they were in fact perpetuating discrimination, and they therefore violated section 15 of the Charter.

I would argue that a similar principle is at stake here. In having been presented with ample evidence of the discrimination, harassment, violence and hate crime that trans people face systemically in Canada, by choosing not to include gender identity in the Human Rights Act, we risk perpetuating discrimination and the invisibility of this community and what they face.

Senator Batters: First of all, Human Rights Tribunal cases can actually go to higher courts if there are errors of law or fact and appropriate circumstances. What year is the Vriend v. Alberta case from?

Mr. Dyck: 1998.

Senator Batters: Is that the one where Justice La Forest made the specific comments about —

Mr. Dyck: That was the La Forest report, which was commissioned by the Canadian Human Rights Commission.

Senator Batters: Do you know who wrote the decision? Anyway, we can look it up.

Senator Mitchell: It was an Alberta court that was ultimately overruled. Vriend lost his job because of that, and he couldn't defend it in the Alberta courts.

Mr. Dyck: But it was the Supreme Court of Canada that overruled the Alberta court.

Senator Batters: In 1998.

Mr. Dyck: Yes.

Senator Batters: More than 15 years ago.

Mr. Dyck: On sexual orientation, not gender identity.

Senator Batters: Right.

You also noted that the court referred to section 15 of the Charter, which is the equality right — sex. My point is that there are many ways the courts have been able to find these types of claims to be well-founded within those already-existing grounds.

I would ask for a quick comment from you regarding other situations where some women have wanted to include enumerated grounds of pregnancy or breast-feeding, those kinds of things. The courts have consistently found that those types of grounds are already encompassed within ''sex.'' How would you distinguish between this and that?

Mr. Dyck: To be honest, I'm not up to speed on arguments around those particular issues of pregnancy. I don't know that I would distinguish between them if I had the opportunity to look further.

Senator Batters: Thank you.

Senator McInnis: Thank you for appearing. It's been very interesting.

In a number of provinces — I think it's now five — gender identity is a prohibited ground of discrimination under the Human Rights Act. What effect has it had insofar as the increase in accessibility to services for those individuals? Has there been a decrease in criminal cases or offences against them? Do you have any information on that?

Mr. Dyck: I don't have any information on criminal cases, given those would be under the Criminal Code.

In terms of human rights applications, I have endeavoured to look. Given that many of them are new within the last year or so, annual reports from those commissions aren't out yet, so we don't have an indication of how many cases have gone forward based on those grounds. So it's difficult at this point to tell.

Certainly, as a national organization doing work in assisting LGBT, trans people in particular, with human rights claims, we have seen a marked change in their ability to make claims. I look to Ontario in particular, given that Ontario, following Toby's Act, has released an updated policy on the application of their human rights act to gender identity and gender expression. That document that was compelled by Bill 33 has been significant, and our ability to communicate with employers, for example, who maybe discriminated without intent — not understanding what it meant to be inclusive of trans people — being able to turn to that document and have a conversation, has, in my observation, mitigated going to tribunals or making claims against people in tribunals.

Senator McInnis: So it's a matter of education and time, is it?

Mr. Dyck: Absolutely. But it starts with a foundation of amending the law to explicitly identify gender identity as a protected ground.

Senator McInnis: We have a lawyer coming before us at some point, so I will leave it there.

The Chair: We will move into a second round.

Senator Plett, do you have additional questions?

Senator Plett: I'm going to refer to one witness and a few other individuals I have spoken to who have shared their concerns here.

We had Ms. McLeod here last week from the Siksika Nation. She is part of — she called it something other than a women's shelter — a shelter for abused people, more than just women. She had a real concern. She said abused women typically are abused by somebody close to them — not strangers, necessarily, but somebody close to them. As such, there is a lot of trauma. They are afraid of biological males, not because every biological male — and certainly she wasn't suggesting that any trans person would be violent, but there was a trauma around having males close to them.

She said this bill would not allow them to separate men from women, male from female. So she was asking for an amendment that would at least allow them the right to have wings in their shelter where they could make sure that these abused women were separated from any males, so on and so forth.

Yesterday, I had a lady visit me in my office, and she's in the room here today. She shared with me a story of her being sexually abused. Now, strangely enough, she became a trans person — well, maybe I shouldn't say that is strange — but she did become a trans person, from woman to man, or female to male, and has changed back again. She identifies only as female now. She had concerns that this bill has not taken into consideration sexually abused women.

For this last one, I will read a letter — and I have received many — before I ask my question:

Dear Mr. Plett,

As a father and a care-giver for children, as well as my 84-year-old mother with dementia, I thank you for fighting to keep washrooms a place where we do not fear the awkwardness of sharing with the opposite gender.

It goes on to say:

My wife grimaces at the thought of trying to help our handicapped daughter or our mother in anything but a female-only washroom.

May God grant you wisdom.

It is signed ''Carl.''

Now he is not suggesting that his wife is afraid of people. There's an awkwardness. I'm not suggesting my granddaughter is afraid of these people. There's an awkwardness.

Do you not believe, Mr. Dyck, that these people also have the right to their own privacy at all costs? Apparently 0.3 per cent of the people in our country are trans. Are we not infringing and trumping somebody else's rights by giving trans people the right to go into these areas?

Again, the main concerns of the two individuals that were in my office were employment equity and housing. I shared their concerns. Their main thing wasn't that they wanted to go into women's-only facilities. They support the bill, obviously. Are we not infringing or trumping somebody's right in order to give one person rights?

Mr. Dyck: I don't believe so at all. I would disagree with that completely. First of all, I would say nobody in this country has the right not to feel awkward. That's not enshrined anywhere. That was the email here, that he doesn't want to feel ''awkward.'' That is the word that you've used. I don't think we have that right whatsoever.

Senator Plett: Oh, my word. Thank you.

Mr. Dyck: In terms of safety —

Senator Plett: You don't need to answer anymore. That's fine, thanks.

Senator Mitchell: He can keep answering. You don't get to cut him off.

Senator Plett: You can ask him a question. He answered my question.

The Chair: I get to cut him off because we have gone over the time.

I gather Senator Baker is ceding his time to you again, Senator Mitchell, so you have the floor.

Senator Mitchell: Thank you.

A lot of this debate is being been brought down to this idea — and it is so offensive — of this bathroom bill. I think it is very important we elevate that there's so much at stake here. Up to as many as 20 per cent of trans people report physical or sexual assault, and as many as 34 per cent report harassment, bullying and threats. Their jobs are often at stake; they can't get them. They live way below economic standards of anybody at the same level of education. They have very high education. As I say, they are subjected to bullying, physical and mental harassment — brutal physical harassment at times. Suicide rates are off the scales, particularly for youth. There's a huge harm being done to trans people because they don't have these rights and because they're not recognized in the way that this bill would recognize them. Am I exaggerating that, or is that exactly the case?

Mr. Dyck: Certainly everything you've just said is reflected in the data that we see. Not every trans person goes through these things on a daily basis. Many people don't, but many people do, and certainly to a higher degree than people who are not trans experience the things you have just listed.

Senator Mitchell: With respect to the shelter issue, the Fred Victor case has been used — one case, before Toby's law, in a jurisdiction that isn't covered by this law, by a sexual predator who wasn't trans. Are you aware of women's shelters all across the country — and there are hundreds if not thousands of them — that deal with trans women all the time and any problems that they have had? In fact, Fred Victor actually hires male people. They have males working there. That all males in a women's shelter would be a threat is just not true. There are ways that shelters and schools and organizations handle this, but it would be facilitated much more with this kind of legislation. Is that not the case?

Mr. Dyck: Absolutely that's the case.

Senator Batters: Sections 2 and 3 of the Canadian Human Rights Act and section 718.2 of the Criminal Code currently refer to both sex and sexual orientation as being prohibited grounds of discrimination in those particular contexts. Section 318 of the Criminal Code only refers to sexual orientation but not to sex. That is the particular section of the Criminal Code that Mr. Garrison is seeking to have gender identity added to, but his proposal does not include adding sex to it.

Do you think there could be unintended consequences if gender identity is added to section 318 of the Criminal Code but sex is not? Women could be subject to hate crime and not be covered by that particular provision in the Criminal Code, but gender identity would be included.

Mr. Dyck: No, I don't see unintended consequences.

First of all, I would highlight I'm not aware of sexual orientation being used in Canadian courts as analogous to gender identity. To my knowledge, it's only sex and disability. That clause right now does not cover trans people based on gender identity whatsoever. I don't see any way in which it could. Certainly that clause needs to be amended or it will not include trans people.

In terms of not including sex but including gender identity, certainly we support the inclusion of sex, and there are private members' bills to do that. There's in fact even a government bill that would make that amendment currently before the House of Commons, C-13, I believe. We certainly support that.

Senator Batters: You support that provision of C-13?

Mr. Dyck: Yes, that provision of C-13.

Gender identity: Everyone has a gender identity. That would not be giving any special rights to anyone whatsoever. That applies to everyone, including ''cisgendered,'' non-trans women.

Senator Batters: Gender identity is very specifically defined, as we were discussing before. In all of those different provinces and territories, they simply say gender identity and don't provide a definition. The difference with Mr. Garrison's bill is that it is quite an expansive definition that's given. You were responding to my colleague Senator Plett earlier, or I think it was Senator McIntyre actually, indicating that in your opinion gender expression could be included within that definition that's provided. Thank you.

The Chair: Thank you both, Mr. Thompson and Mr. Dyck, for your appearance and testimony here today. It is much appreciated.

For our next panel, I would like to introduce, from REAL Women of Canada, Diane Watts, Researcher; and Michael Crystal, Barrister, Crystal & Associates, as an individual.

Welcome to both of you. We will leave the floor for you for opening statements.

Ms. Watts, would you lead off?

Diane Watts, Researcher, REAL Women of Canada: Thank you very much.

REAL Women of Canada is a non-partisan organization of women from all walks of life, occupations, social and economic background. The word ''REAL'' is an acronym that stands for realistic, equal, active for life. We believe the family is the most important unit in Canadian society and we promote equality, advancement and well-being of women. We have concerns about Bill C-279, which we have expressed in previous committee meetings. Thank you for inviting us.

REAL Women respects the rights of all Canadians. All Canadians should be protected from harm, including people who experience gender-identity dysphoria, or dissatisfaction, but not at the expense of women and children.

We oppose the bill for three reasons. It is unnecessary because citizens who identify as GLBT are already protected by the Canadian Human Rights Act and the Criminal Code. This was confirmed by officials from the Department of Justice in their testimony before the House of Commons.

Second, terms used in the bill are vague and expected to be defined by courts and tribunals. The sponsor of the bill stated that once gender identity is in the Human Rights Code, the courts and Human Rights Commissions will interpret what that means.

Three, we believe the bill will increase the harm to those who attempt to change their sex. We refer you to our brief. We presented a brief before the committee. We sent a letter to senators on May 9, 2013, elaborating on these points and referring you to the medical evidence indicating that there is harm to individuals who undergo some of these medical interventions.

We also have a reminder that there is deep division within the medical community in terms of attempting to change the sex or the gender of individuals, and now there are efforts to inject young children. We refer you also to research results in this area. I will mention it later.

There is also division among GLBTIQ circles. Many of the GL don't believe that trans belong, and there's a very heated controversy on the Internet that is available to everyone. The view of GLBT is not uniform, as it's not uniform within the medical community. There are increasing numbers of de-transitioning individuals who are dissatisfied with the trans process. We also have information on that.

The UN rejects the terms ''gender identity'' and ''gender expression.'' The Geneva-based United Nations human rights commissioner's controversial recommendation that gender identity and gender expression be protected rights was overwhelmingly rejected by the Human Rights Council in March 2012.

On September 26 of this year, a resolution was passed by the same council to merely continue to study sexual orientation and gender identity in reference to violence, and specifically mentioned that the resolution created no new human rights. Gender identity continues to be rejected by UN member nations because it undermines the universality of the UN Declaration of Human Rights, which is intended to protect the human rights of all human beings.

Delegates have repeated during UN General Assembly sessions that these terms are not objective because they create a category identifiable only by subjective preferences of individuals. In addition, the delegates complained that identifying one category of persons for special protection from human rights abuses dilutes the universal character of the obligations of UN member states to human rights.

This is the rationale at the United Nations, even though many people claim that there are great so-called advances made. There's scientific evidence of morbidity and mortality levels higher among people who have had medical intervention to change their gender or sex. We refer you to the study of the Karolinska Institutet. It was an expansive study. We also refer you to the writings of Dr. Paul McHugh, who was chief psychiatrist at the Johns Hopkins University Hospital. He wrote an article in the Wall Street Journal dated June 12, 2014, which explains in simple terms what he has faced over the years with problematic medical interventions.

I would like to also mention the Yogyakarta Principles, source of the gender identity definition for Bill C-279. They were formulated at a conference of 29 self-described experts, including three judges only, and have not been accepted by the United Nations. The principles can be interpreted to interfere with parental rights to obtain professional help so that children confused about their sexuality can learn to better identify with the gender consistent with their genetic makeup, their unchangeable DNA.

Even with chemical injections to arrest the onset of puberty for gender-confused children, only a minority choose to transition to the gender not in keeping with their genetic makeup, according to studies both at Vanderbilt University and London's Portman Clinic.

The Chair: I will ask you to wrap up.

Ms. Watts: There's a letter to schools that we include in our brief, from the American College of Pediatricians, claiming that children can be helped to accept their gender. Also, an Ottawa-Carleton District School Board survey indicated that sexual orientation is very low, 5 per cent, among the complaints.

Thank you.

The Chair: Thank you very much.

Michael Crystal, Barrister, Crystal & Associates, as an individual: Thank you very much, Mr. Chair and honourable senators. I'm very pleased to be here to speak this morning about Bill C-279, the proposed amendments to the Criminal Code and the Human Rights Act, in particular the inclusion of the ground of gender identity and the definition.

Just a word about my background: I have practised criminal law for the past 20 years, among other areas, but I commenced my practice as a public defender in St. John's, Newfoundland — and yes, Senator Baker, that is directed at you — where I introduced human rights issues in later practice. I have still maintained a small pro bono practice, which includes human rights, and I am the former legal counsel to the United Nations Association in Canada. Finally, I would like to note that I am currently chair of the board of a small local private school.

That is about all I'm going to say from my prepared remarks, which I have circulated in both languages, because I do want to address a couple of simple points. I want to speak to you today very straightforwardly and tell you why I'm here.

Quite frankly, it is urgent that gender identity be included among the grounds in the Canadian Human Rights Act. It lends the validity and provides visibility to our brothers and sisters in Canada who have struggled with an enormous difficulty.

One has to think that, going back 500 years to Shakespeare and the Twelfth Night, the issue of gender confusion, whatever way you want to characterize it — and I don't mean any disrespect — has always been with us.

Part of me, as a great student, you might say, of American civil law history, would like to say that this is our Brown v. Board of Education. Maybe that's a little overly dramatic, but I say it for one reason. I want us all to think about that.

In 1954, when Thurgood Marshall stood up in the U.S. Supreme Court, it seemed that the road ahead was enormous and insolvable; but over time, with policy and education, it is no longer really an issue for the children of that great nation. Let's come here and ask where we are.

Usually, the clients I represent are not as severely attacked as Senator Plett is, but I think it is very valuable that we're here today and listening to Senator Plett's questions because Senator Plett is the canary in the coal mine. For most people in this country, the questions they ask are the questions he asks.

What I say is significant is that his questions, if you maybe subtract some of the language we don't want to hear, are very telling.

At the last hearing, he was asking about the impact — and he said it today — on his granddaughter. Well, you know what? Human rights legislation does look at the impact upon things, such as washrooms and locker rooms, on other parties. The Synthia Kavanagh case and the case from B.C. in 2000, the Vancouver rape relief case, looked at the rights of the individual. In the case of Kavanagh, she's a trans woman. She was still an anatomical male. She wanted to go to a female prison, and the decision was that no, she has to be accommodated. At a certain point she was eligible for gender reassignment surgery, and after that there would be a transfer to a male prison.

In the Vancouver rape centre case, from 2000, out of B.C., basically what happened was that a trans woman wanted to work at a rape crisis centre, and the Court of Appeal in B.C. held that the policy of that centre, which was not to have males present, could prevail.

The point is, regardless of the solution, in the calculus of figuring out what the right decision was, those people, those views, were taken into account and they were significant.

Furthermore — and I'm coming to a close — I would say this: The great policy that has come out of Ontario for 2014 is dealing with the educational side and with the policy side, encouraging us to work together before there is an issue. That's where, really, the rubber hits the road.

In terms of when Senator Plett raises the issue, let's say an individual, a brazen trans male, walks into a female washroom, maybe to make a statement, maybe to assert her rights. The question is: Do we turn a blind eye to that act if it is without any disregard to the rights of others?

I say no. I say that is not the way our law works. In fact, if it's done with a view to create hysteria, there may even be a criminal complaint.

That's my point. There is a global approach to these issues, and we should heed that.

Senator Plett: Ms. Watts, I spoke — and Mr. Crystal has already alluded to that — at the last meeting about the fact that my young granddaughter does not want to be in a change room with a biological male, and Randall Garrison, the bill's sponsor, said that's the same as her not wanting to be in the bathroom with an Asian or a Jewish person, which I find, quite frankly, ridiculous.

As a representative of a women's organization, how do you feel about this comparison and, in your experience, are women nervous, anxious and afraid of what could happen if Bill C-279 becomes law?

Ms. Watts: I don't think the situation has been explained properly to the general population. People get their information through the media, and they haven't received the entire picture.

We take for granted the civility of our society. We take for granted that we can use personal facilities in peace. There's a certain discretion that I have always experienced. I have never experienced anything that was traumatic or disturbing, but experience shows that there have been concerns.

For example, in B J's Lounge in Victoria, there was a situation where a man who thought he was a woman — and with Bill C-279 he has every right to go anywhere women go — entered a washroom, and there were a lot of complaints from the people who were using that restaurant.

Again, the Vancouver Rape Relief Society and the women at the shelter objected to this, and these women usually stay in shelters for a few weeks. They're traumatized because of the abusive situations. They use public washrooms too. How are they going to react if someone comes in who they identify as a male but who identifies as a female?

It's not just washrooms. It affects sports as well. There's a mixed martial arts fighter, Fallon Fox, a biological male now identifying as a female. He competes with women, and he knocks them out in the first few minutes of the first round. One female opponent suffered a broken eye orbit and a concussion. Another one was knocked out in 39 seconds. Fallon has won five straight first-round victories. Now with Bill C-279, which guarantees his right to identify as a female, would the associations dealing with this dangerous sport, when men are fighting women, have the right to protect women in this sport?

Senator Plett: Thank you.

Mr. Crystal, I'm going to refer to a case that's been referred to many times at these committee meetings. I have referred to it in the chamber and Senator Mitchell referred to it earlier today and just flippantly passes it off.

Christopher Hambrook went to a woman's shelter, came out of jail. He was in jail for sexual assault. He identified himself as transgender, which Mr. Garrison said wasn't true the other day; he had just simply dressed as a woman. I have quotes from his psychiatrist who confirmed that he was in fact pretending to be transgender.

The Ontario Human Rights Commission's report was that sexual assault is illegal after he sexually assaulted two women. I'm not sure how much consolation that would be to the victims who had already been sexually assaulted, especially when laws like this are increasing biological male access to women's facilities.

There are a lot of Christopher Hambrooks in the world, whether the opposition or Senator Mitchell likes to believe that or not. He asked a witness earlier whether he thought that this was very common; maybe it isn't. In your opinion, would a person who is deemed a dangerous offender or who is in fact a dangerous offender be willing to take advantage of any laws and any situations that would allow him to take advantage of vulnerable people?

Mr. Crystal: Senator, first, let me say this: The problem with this very short amendment to the Human Rights Act is the definition. You've touched on it. It has this notion of fluidity. If you have an individual who is a trans male, trans female, the law, I would submit, will look at the case on its facts. I think the basis of your question is that there is this grey area, and to my mind that is the biggest problem.

But looking at criminals entering shelters, quite frankly, I just don't find any use in the worst-case example in terms of where we're trying to get. That is to say that it is clear — after the Kavanagh case, for example — that in correctional institutions, policy was generated that now governs this situation in terms of trans women and trans men in federal institutions.

So for a known criminal or someone who is very serious to enter into any shelter is very troubling, and I find it very difficult — and maybe I haven't answered your question — to do a meaningful analysis in that scenario.

Let me say this in closing to answer your question. I chair a board at a private school. Now the issue hasn't arisen, but I'll tell you, after this hearing and Bill C-279, one of the first things I want to work on is having a policy because I think that's where the wisdom is.

These situations that materialize as a complaint in a dispute mechanism system don't necessarily lead to a very valuable precedent. They are fact specific. The answer is going to come from the policy.

The Chair: The deputy chair of the committee, Senator Baker.

Senator Baker: Thank you to both presenters for your very interesting presentations.

I've read all the case law that Mr. Crystal cited. It's instructive that in each of those cases there have been sufficient definitions given to this term that we're using here today by medical experts, recognized by the courts. Mr. Crystal is an experienced litigator who has been before all of our major courts: the Supreme Court of Canada, the Court of Appeal of Ontario and the very interesting Court of Appeal of Newfoundland and Labrador. It's too bad that he has left the province of Newfoundland and Labrador to assume a position here in Ontario.

I would like to give my questioning time, Mr. Chairman, to the sponsor of the bill here in the Senate, Senator Grant Mitchell.

Senator Mitchell: Thanks, Senator Baker.

I want to mention that Ms. Watts appeared before the hearings on gay marriage. I think her organization at that time was arguing that gay marriage would create huge social problems, which it hasn't, and that somehow gay people could change, and in fact she is making the same case here. I'm going to set that aside because it's been so discredited for so long.

I want to just pursue you, Mr. Crystal, to clarify what you're saying because I think it's so important. You're saying that once these rights are established that the courts — I think you mentioned if a trans person wanted to make a point and was over the top in doing so by walking into a washroom, if anybody did that, it might even be criminal — would deal with that, and the courts do deal with that. And they have dealt with that under human rights legislation for all the things that have been identified. Your point is that all of these concerns would be very well managed by the courts and by policy, in your school, for example, and that it's doable.

Mr. Crystal: It is, but I think that Senator Plett's concerns flesh out those issues.

Senator Mitchell: Right.

Mr. Crystal: Because they are at the extreme.

You're absolutely right, and I'm not going to waste any more time, but let me put it to you this way. Where we see the weaknesses in any proposed legislation, and it's the same thing in law, is in extremes. That's the whole Socratic process: Take it to the extreme to ferret out the weakness.

Senator Plett is saying what about this individual who is a trans who walks into this washroom, creating some sort of hysteria: Does that not have any value? He's absolutely right. In the extreme situation it does, and nobody wants to be identified with supporting that type of situation.

The problem is the definition. I go back to the definition. Why? Because it's broad, it's incomplete and it's unnecessary, the way that the courts have been dealing with this issue already. I will be only too happy to see gender identity as an enumerated ground so people don't have to go to the additional step of finding it somewhere in established grounds.

But I say this: The law has been working. We think that we're at the starting line of a marathon. We're a water station at a midpoint. This has been happening, so let it happen.

These five provinces and a territory don't have a definition. I know it's part of a compromise. I heard the testimony from the last time, but this is something we all have to realize, and I don't think the definition makes it any better. That's exactly why Canadians are asking the questions that Senator Plett is asking, because of the lack of clarity that breeds. If they were to read the decisions of tribunals and reviewing courts, I don't think you would hear those questions.

Senator Mitchell: Okay. I'm just struck by your mention of Socrates. I'm sure Senator Baker would say that Socrates is probably from Newfoundland.

Mr. Crystal: West Coast.

Senator Mitchell: Or he studied there.

You make a very interesting point about the definition. Ironically, it was seen to be too broad without it on the other side so it was brought in, but I'm not arguing with your position.

Beyond that, the suggestion of some kind of amendments that would anticipate problems or exclude or exempt certain features of what could be construed as discrimination, that's not what you're advocating. You're not advocating that kind of amendment at all.

Mr. Crystal: Not at all. It's a very organic process. I was speaking with my friends at Justice, and you can already see it in Ontario. The moment that you have an enumerated ground like gender identity, the wheels in the bureaucracy start spinning. You start to get guidelines and these types of reports that we have here: ''Policy on preventing discrimination because of gender identity and gender expression.''

Senator Mitchell: This report right here.

Mr. Crystal: That's correct, 2014.

The one thing I just want to mention in this policy, which is absolutely terrific, found at page 40, the second paragraph:

Changes to the Building Code Regulation, effective January 1, 2015, will require at least one universal washroom in all new buildings or major renovations, and, for multi-storey building . . . .

It goes on, but the point is the wheels are in motion. When you have an enumerated ground, that's exactly what happens. These things don't happen in isolation. We're not in a vacuum. Every case doesn't have to be litigated.

[Translation]

Senator Dagenais: Mr. Crystal, the problem with this bill is that there is no definition of gender as such, and I get the feeling that that is being left to everyone else to define. I think that this may lead to abuse and discomfort; I will explain.

I am going to quote the bill, page 1, clause 2, the last paragraph at the bottom of the page. This is what it says:

In this section, ''gender identity'' means, in respect of an individual, the individual's deeply felt internal and individual experience of gender, which may or may not correspond with the sex that the individual was assigned at birth.

Of course, there has been a lot of discussion about the famous washroom issue. However, imagine a transgendered person who goes into a washroom. You also have to think about the discomfort that may arise if a man or a woman in that particular washroom is not certain that that person is transgendered.

The bill seems vague on that point, and this may lead to confusion.

[English]

Mr. Crystal: Thank you so much, Senator Dagenais.

I think there is no doubt that this amendment reaches out to the trans community. Here the Yogyakarta Principles, where that definition originated from, were all about the international rights for the trans community.

Its language, I would say, is not helpful legally. It is not legal language. I wouldn't say it's a mission statement but a validating statement of deeply held feelings. That is not helpful to the courts.

It is important; don't get me wrong. It is significant, and gender identity being included as a ground is a validation of gender identity. This battle that we're facing right now to have our brothers and sisters in the trans community — because they are our brothers and sisters — is about validation.

This is political language, and it's not even the complete definition. I put in my outline that it's not even the complete definition that we're importing. But to import it doesn't help us. It doesn't help our friends.

If I could just say one thing about definitions, there are principles in law that say once you start to define something you exclude something else. I think that's always a problem.

I think we've always resisted definitions in human rights legislation. I think it goes back to concerns about the consanguinity laws in the United States, the Nuremberg laws. We don't define what people hold true because it runs the risk of demoralizing them. We don't need definitions, and I don't say look to the future for proof of that; I say look to the past.

The law is working. We're getting very good case law. But I say this is the time to recognize that we all have an obligation with regard to the recognition of the trans community and this being an enumerated ground.

I agree with so much of what Justice — I was going to say ''Justice Batters.'' I agree with much of what Senator Batters has said in many of her points, but where I draw the line is I think this ground has to be there. I think it has to be there because once it is there, then we see the system starting to generate the documents that I've referred to earlier in Ontario, and that becomes significant and becomes part of the discourse, part of our jurisprudence and part of our rights sensibility, and that's where it belongs. So there you have it.

Senator Batters: I took the opportunity, as this proceeding has been going on, to have a quick read through the brief we received from you earlier this morning. Thank you very much for that.

Because there's limited time afforded for opening statements, a significant portion of your brief was regarding the definition in this particular bill as overly broad and arbitrary. That's one of your headings, even.

You state there, Mr. Crystal, that:

The definition of gender identity proposed in Bill C-279 is an incomplete reproduction of the more comprehensive definition found in The Yogyakarta Principles . . . .

You also state:

Furthermore, the current wording of the proposed definition is overly broad and lacks clarity. Concerns that have arisen regarding —

— these different measures —

— are a direct consequence of the overly broad and unclear nature of the proposed definition.

You go on to state:

It is my position their source is the enigmatic nature of this flawed definition. These concerns constitute the canary in the coal mine.

That is also how you referred to Senator Plett, and I'm not sure if anyone has ever referred to Senator Plett as a canary.

Senator Plett: A bull in a china shop.

Mr. Crystal: He's a big tweeter.

Senator Batters: You testified today that the law has been working, so let it happen. You're saying that this particular definition is not helpful to the courts. I just wanted to give you a bit more of an opportunity to speak about that definition.

Mr. Crystal: With the greatest of respect to my friends at Egale, I wish that the definition was far more a legal and comprehensive definition, because then it might assist. The idea of a definition is not to thwart the enumerated ground but to assist in its interpretation. In this case I think it has the reverse effect.

I think that the type of jurisprudence we have so far reflects that tribunals and reviewing courts have looked very closely when put to the task of gender identity and discrimination. I think the jurisprudence has not been lacking.

What I found very interesting as I was working through some of these provincial statutes and some of the more recent ones — P.E.I. and I believe it was Newfoundland and Labrador — was that they include gender expression but they don't define it.

What may be interesting too, as a way of bringing this out, is the provincial human rights legislation quite often defines something like ''disability.'' You would think that disability would be much more apparent than something like gender identity.

I think at the end of the day what you have to realize is these are pieces of legislation that will be interpreted by lawyers, judges and adjudicators, and political language is not helpful in that case. That's what I think, at the end of the day, Yogyakarta provides us with.

Senator Batters: Thank you.

Also, Senator Mitchell was commenting earlier that the other place thought the gender identity definition was too broad. I would point out that it was actually in front of the House of Commons committee where there were two potential grounds that Mr. Garrison's bill initially sought to include: gender identity and gender expression. Mr. Garrison, the NDP sponsor of the bill, told us when he was testifying here that the broad definition resulted from the exclusion of gender expression — that is, taking that out of his bill and instead having gender identity, but then having this broad definition included. That was the reasoning for it and not that the gender identity definition was too broad.

Mr. Crystal: Starting down the road of definitions, you have this ground of gender identity; then you have gender fluidity as part of a definition. It provokes the other side to consider bathrooms and sports, amendments that will curb that. We start litigating it at the legislative level because we have our own interpretations that we are trying to preserve.

From my perspective as a lawyer in a courtroom or in a hearing, that is left to the arbiter. Those are my arguments. Just as I can't make a political statement in my factum to the Court of Appeal, I don't expect to see it in the legislation that I'm fighting about. It is just the way it is.

Senator McIntyre: Thank you both for your presentations. I would like to go back to the Yogyakarta Principles, if you don't mind.

Ms. Watts, you spoke briefly about the Yogyakarta Principles in your opening remarks; and Mr. Crystal, you raised the issue of the Yogyakarta Principles in both your brief and your remarks to Senator Batters and Senator Dagenais.

I would like to hear from both of you on the Yogyakarta Principles. Is the definition too vague or is it clear?

Ms. Watts: With the Yogyakarta Principles, I believe there are 69 or 68 principles. Mr. Crystal is correct, they're very political. They're directed to a grand scheme of really changing jurisprudence and are very concentrated on the sexuality of individuals in that area.

First, the definition is too broad. As everyone says, it is going to be interpreted by the courts and who knows how it will be interpreted. This is what we are doing. This is why the Minister of Justice opposed this bill, because it is not wise to pass legislation without clear terminology and just let it go to be defined by anyone else.

The problem we have with the Yogyakarta Principles is that it really does not protect parents in terms of the care of their children. If the child has a difficulty identifying with his natural gender, the Yogyakarta Principles specifically state that the parents should not interfere. This is the problem that is going on in California now with the laws that have been passed. There is an effort to prohibit counselling for children and adults who find it problematic to have identities that they really find uncomfortable. In a free society, it seems to me that we should all be able to obtain counselling for our difficulties.

The Yogyakarta Principles are very clear in really not even considering parental rights. Parents really know their children best.

Mr. Crystal: I disagree with that. With the greatest respect, I say it is a very different document. It is an international document.

One of the things we have to realize is that countries are not all as democratic as Canada and some have very oppressive regimes. The Yogyakarta Principles are the rights. It is basically a statement of rights for the international trans community to protect them wherever they may be. In some cases, just the mere mention or knowledge that someone is trans would mean a death sentence. It is a statement.

It is also put together by human rights and legal scholars. It is an incredibly valuable document that took a long time to produce, and it has wide-reaching implications. It is a very important document. It is an essential document in the global validation of the trans community.

To take a portion of the definition section, which is in the footnotes and is not a prominent part of the document — the document is far more about the validation and all the rights that belong to anyone, really, but everyone in the community. However, to take that definition and import it into what we're trying to do here is clumsy and incomplete.

In its own right, I wholeheartedly support that document. It is a terrific document. Taking the definition section and saying that's a good definition for us to work with — no, it is too political. Scholars worked on this document for months and months and months — twenty-eight of them, I counted. Most of them had a legal background, I would say, but they were human rights scholars as well as scholars in the trans community. They worked on it with a different purpose. It is apples and oranges.

I would conclude with this: To some extent, it is unfair and anti-intellectual to say that Yogyakarta doesn't pass muster in our Canadian Human Rights Act. It is apples and oranges, and it was unfair to put it in.

Senator Frum: I would like to thank both witnesses for their testimony.

Mr. Crystal, you made your point clearly, but I would like you to be explicit in terms of dealing with the bill itself.

You support the inclusion or addition of gender identity into the Human Rights Act, into the Criminal Code, but you would amend the bill to strike the definition; is that correct?

Mr. Crystal: That's right; it's in my thesis, my written statement.

The proposed amendment to the definition section of the Canadian Human Rights Act, R.S.C., 1985, c. H-6, contained in subsection 2(2) of Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity), ought to be excluded from the Bill.

That would be my proposed amendment.

Senator Frum: You brought up the issue of transgendered human rights and prisons. We haven't discussed prisons here at this committee yet. I did a brief search. I see that is actually an area of great vulnerability for members of the transgendered community.

Particularly when you look at this definition — and I agree that there's a great deal of fluidity in it — it strikes me that there is the possibility of a conflict there in terms of the best interests when you have people who are biologically gendered one way perceive themselves in another way and then they have to interface with the correctional service organization. Can you elaborate on that? Is that something you have paid attention to?

Mr. Crystal: CD-800 is the gender identity disorder policy that came out of the Synthia Kavanagh case. I will give it to the clerk and it can be circulated if you don't mind me highlighting and underlining.

Several things come out of the Kavanagh case. I want to recognize Nicole Nussbaum, who works at Legal Aid Ontario, for helping me with this issue. She was very valuable and I know she's here today.

CD-800 basically makes the distinction pre-op and post-op — it is ugly language. Prior to gender reassignment surgery, trans women would be housed in a male facility but accommodated. Here we're talking about federal facilities. If eligible in terms of the recognized testing, and so forth — that is, if ready for gender reassignment surgery — Correctional Service Canada ought to provide it and pay for it. Post-surgery, there is an understanding that a trans female or trans male, whatever the case may be, can then attend the facility of the opposite sex.

That came out of the tribunal decision in the Kavanagh case, which was upheld by the Federal Court, Trial Division, who did the judicial review on that. That is now the policy.

I didn't research it, but I heard that at a correctional facility in B.C., a trans female pre-op was accommodated. I have not done the research, but that is what I heard. As I said, it is totally unconfirmed.

Senator Frum: That's just your point, that these policy provisions are happening without changes to the Human Rights Act; they're completely separate from each other.

Mr. Crystal: Yes. Gender identity, at that time, was derived from existing grounds. That is absolutely true. Kavanagh proceeded on that basis. Obviously, we're far more enlightened now than they were then, and the policy reflects that.

Senator McInnis: Mr. Crystal, you alluded to the fact that you would be going back to this private school where you are chair of the board. I understood you to say that it was to deal with policy with respect to this. I take it that often policy ends up to be law but not necessarily so.

Later on, you said that the law must be there. I took that to mean that it is symbolic to make a statement that the law be there. Did I understand correctly?

Mr. Crystal: I think what I said was about one of the wonderful by-products of having an enumerated ground. Let's not kid ourselves because very few proposed grounds ever become an enumerated ground. Obviously, you know that other issues have tried to make it to become a ground, but it is difficult to be added to the grounds of discrimination. This is a substantial ground.

One of the things it does, and I have talked about policy on the government side that generates these documents and so forth, is it lights a fire and generates a dialogue. Educators who become aware of this start to say, ''Hey, I don't want to have a kid have to go to the Ontario Human Rights Commission because he or she wants to be treated like everyone else. I don't want to have that dispute. I don't want to be on that dispute. I don't want to testify at that hearing. I don't have to have that hearing. That's unnecessary.'' Just like we think sometimes about civil cases, there is an emphasis to settle. No one wants to have it out in the adversarial process unless they absolutely have to.

When I hear about this issue, as someone involved tangentially in education, I'm going to take from this legislation that we had better start talking about this because we don't want any student at the school to ever feel that they don't belong there. It is just not the conversation we want to have that we will go to a Human Rights Tribunal about. Let's have a policy in place. Let's start to problem solve before it happens. We then know what to do and everyone feels like they're part of the solution.

I'm a criminal lawyer, so someone has to be charged in order for me to be involved. There's going to be fireworks at a sentencing hearing or trial. That's the criminal justice system. But in human rights, and in this situation, it is prehistoric. You have to pick your fights, and this is not one of them.

Senator McInnis: Have the courts routinely held that gender identity is implicit in the grounds of discrimination?

Mr. Crystal: There have been decisions. At the last hearing, Senator Baker raised the cases in B.C. With existing grounds, gender identity has been seen to be a ground of discrimination. There's too much before us to ignore it as a stand-alone ground. There's no reason in the world why it shouldn't be. There's too much happening.

I circulated a document, and I can find it for you, on the trans youth rates of contemplated suicide. When I was speaking to Nicole Nussbaum, I volunteered to be on a trans committee for legal aid after hearing about the percentage of discrimination at every level that this group of individuals face. We all have to do our own bidding, but the point is that it's a very vulnerable group in our society.

Every generation has its challenges. I don't want to tell my grandchildren that when it came time to deal with Brown v. Board of Education, I sat on my hands and said let's stick with the status quo. I don't want to be there.

While this ground has been found to be in other grounds, it is valuable to include in our existing grounds. And I don't say that lightly because as I said, it is very difficult, as you well know, senator, for a new ground to be added to the Human Rights Act. It is difficult and rare.

Senator Plett: If gender identity had been in place at the time of R. v. Kavanagh with a definition as is, would they have be able to act the way they did or would they have had to grant Kavanagh access to a women's facility.

Mr. Crystal: It's an excellent question. It is very possible that Ms. Kavanagh would have had her wish to go to a female institution with that definition included.

Senator Plett: On a case in Washington State, a grown biological male identifying as a transgender exposed himself in a change room with women and girls as young as six. I understand that this is not a safety concern and would likely not be accommodated in section 15 of the Canadian Human Rights Act where safety is taken into consideration.

Do you believe, Mr. Crystal, that section 15 of the Canadian Human Rights Act could be amended to account for some of these concerns? It is my opinion and the opinion of many Canadians that this is wrong and inappropriate. Do you believe that there could be an amendment to section 15, or do you maintain that removing the definition of gender identity is the only appropriate course forward?

Mr. Crystal: I'm not a legislator, so I don't know how easy it would be. Quite frankly, I see a bright line response to your concerns, which is to remove the definition. I thought about section 15 initially. I think that section 15 would be very difficult to amend, and I don't think it would ever become law.

That Washington case disturbs me. I say with the greatest respect: I don't think that having any issue, whatever ground it is, be it sexual orientation, sex, or whatever, gives you a free pass through the Criminal Code. At some point, people have to take responsibility. You don't act in a vacuum. A grown man doesn't go into a washroom where there are young girls, regardless.

To tell you the truth, if I were a member of the trans community or any part of the community in question, I would find that such a person had done a disservice to the political ideals that I had. The point is that if you want to burn a flag to make a point, burn a flag, but don't burn someone else's. Do you know what I mean? It's just not necessary. It does a disservice to groups like Egale and every other group that is trying to legitimately make their points in hearing rooms such as this with statistics, arguments and passion. It does them a disservice for that type of statement to be made. There are many other ways to make that point, and if you are trying to get in as a test case, there are ways to do that.

I don't think it gives you a free pass through the Criminal Code or any bylaws —

The Chair: There are three senators left and there are only a few minutes left. I will ask for quick questions and concise responses.

Senator Mitchell: One of the issues raised in the past is this idea that gender identity is very subjective and how could the courts ever deal with it. But in human rights legislation, this is not the case. Religion is also very subjective, and it is dealt with. The courts are always dealing with subjective things, are they not? They deal with motivations in criminal cases — were they conscious motivations or accidents?

Could you comment briefly on the whole question of how the courts deal with ''subjective''?

Mr. Crystal: The notion of mens rea, or ''the intention,'' exists in the way that the tribunal and the code are set out.

This supposed gift in the definition section, which deals with feelings, subjectivity and so forth, my argument would be that in a non-legal sense it is an attempt to validate individuals who have a sexual identity and a gender identity. That language is not legal language in terms of the calculus that adjudicators are going to have to do.

The only thing I can say is that, yes, it talks about how you feel and what you're thinking, but the legal interest in what you feel or are thinking is different and already exists in the way an analysis is done in discrimination cases.

The Chair: Thank you, witnesses, for your very interesting and helpful testimony and in helping us with our deliberations on this legislation.

For our final panel today, please welcome, from the Canadian Civil Liberties Association, Noa Mendelsohn Aviv, Director, Equality Program. We also have with us, from the Ottawa Police Service, Superintendent Don Sweet, Criminal Investigations Directorate; and David Snoddy, Director of Community Development. Welcome all.

Ms. Aviv, please proceed.

Noa Mendelsohn Aviv, Director, Equality Program, Canadian Civil Liberties Association: Thank you very much. Good afternoon.

The main message that I'd like to get across to this committee and to the whole Senate is that it's time to move forward. It's time to pass the bill. There are very good reasons to do it and there really aren't any good reasons not to.

I'll try and skip over the things that I know you've heard. You know that gender identity under the bill would be added to the list of prohibited grounds of discrimination. What you may not have thought of but I have is that it's a sad irony what we're talking about here is amending our federal equality law, because currently it's our federal equality law that is excluding one of the most marginalized groups in Canada. That doesn't make sense and it's not right.

Even just at the symbolic level, the Canadian Human Rights Act has to be amended. It needs to be rectified. Everybody else has put the wheels in motion to make that amendment. It's now up to the Senate to do it. That's the main message that I want to get across.

I'll skip over telling you about how serious the marginalization and discrimination against trans people is, but I want to point out that we're talking about jobs, housing and we're talking about the provision of services by government officials and the vulnerability that trans people experience. All of that is what this bill is about. That needs to be weighed against a threat that is not based on evidence. It's based on fears and it's based, perhaps, on prejudice around the possibility of something happening in a washroom where there is evidence that stuff happens in washrooms all the time by people who aren't pretending to be transgender. I can talk about any of this more during questions.

Here's what I do want to talk about: Discrimination in its earliest and most insidious form exists when a group is so marginalized that they're not even recognized as being worthy of protection. Perhaps their personhood isn't recognized, perhaps their right to equality isn't recognized and perhaps the discrimination against them is invisible or seen as somehow justifiable because this group is so different. We just don't get them.

In 1928, in the case of Edwards v. Canada — it had something to do with the Senate of Canada, as it happens — the question the court was asking itself was:

Does the word ''Persons'' in section 24 of the British North America Act, 1867 include female persons?

Corporations at that time were recognized as persons, but in the Persons case, Edwards v. Canada, women, according to the Supreme Court of Canada, were not seen as persons. That's the kind of exclusion that happens when we don't recognize the basic fundamental equality rights. That particular decision was overturned by the Privy Council in England.

The same exact thing happened a few years ago in the Vriend case, which I know you've heard a great deal about. In Vriend v. Alberta, Alberta said a gay man tried to assert his right to equality under their equality legislation. It was then known as the IRPA, the Individual Rights Protection Act, and there too it wasn't an enumerated ground and the court said this cannot be. There's a wonderful quote about it, which I'd be happy to read to you if we have the time, but essentially it sends a strong and sinister message when people who are discriminated against can't rely on our equality laws.

The Canadian Human Rights Act was passed in 1977, so we can understand in that historical context why they didn't include gender identity at the time, but there have been calls to rectify this gap and include gender identity in the legal mainstream since at least the year 2000 — Justice La Forest's report.

We should also say that at a practical legal level trans rights are already being recognized. The Canadian Human Rights Tribunal is doing it to no ill effect. The provincial and territorial tribunals are doing it to no ill effect, and they have been doing it since at least 1999. That's 15 years — the Sheridan case. As I said, they have been doing it in the federal as well as the provincial and territorial tribunals, and of course in recent years many of the provincial human rights laws have been amended to include gender identity.

What these tribunals are doing is addressing, in relation to gender identity, sexual orientation, religion, race and any number of prohibited grounds, the kinds of questions that this committee is asking — questions around identity, definitions, what happens when there's a conflict of rights, who can claim the rights and what evidence they have to bring forward.

The tribunals are expert at adjudicating these matters. I'd be happy to speak more about it, but just to say this has been going on for 15 years. It's working. There are other reasons to amend the Canadian Human Rights Act and the Criminal Code, but it's not because we should be scared what will happen if the amendment comes in and gender identity is recognized. It's already recognized.

If the Canadian Human Rights Act was passed in good faith at a time when there was little mainstream public awareness about gender identity, that's not the situation today.

The Chair: Ms. Aviv, I will ask you to wrap up, please.

Ms. Mendelsohn Aviv: Can I take 30 seconds?

The Chair: No more.

Ms. Mendelsohn Aviv: Thank you.

The failure to acknowledge the equality rights of trans people is a discriminatory act. In the provinces and territories, the tribunals have largely rectified this. The House of Commons has sent you Bill C-279 to rectify this, and now it's up to the Senate of Canada to decide what its legacy will be. Will we have a discriminatory equality law in Canada?

The Chair: Thank you.

Superintendent Sweet?

Superintendent Don Sweet, Criminal Investigations Directorate, Ottawa Police Service: Good morning, Chair Runciman and committee members of the Standing Senate Committee on Legal and Constitutional Affairs. My name is Don Sweet. I'm the current Superintendent for the Criminal Investigations Directorate for the Ottawa Police Service. Accompanying me today is Mr. David Snoddy, Director of Community Development and Outreach Services. It's indeed our pleasure to be here today to both provide what we hope will be helpful information with regard to Bill C-279, as well as to answer any questions you may have. It's also my distinct pleasure to represent Chief Charles Bordeleau.

I'm currently in my twenty-ninth year of service, and during my career I've spent a large portion of my time with our Criminal Investigations Directorate. I'm responsible for and oversee the majority of all our criminal investigations within the City of Ottawa, including homicide, sexual assault, domestic assault, robberies, guns and gangs, criminal intelligence and organized crime. I also oversee, related to today's item, our Extremism and Hate Crimes Units.

The impact of Bill C-279 as it relates to gender identity in our opinion will be in two very distinctive areas — from an investigative response perspective to a rights and community engagement perspective.

From an investigative aspect, the addition of gender identity to the Criminal Code of Canada will allow those members of that community to potentially report crimes that otherwise may have gone unreported. While we do not expect those numbers to be extensive, any successful prosecution and increased penalty for a crime attributed to the way a victim identifies their gender would be considered a success. It's our strong belief that the inclusion of hate crimes and the appropriate sentencing practices associated with those offenders does play a role in reducing further victimization. It allows investigators and Crown attorneys the ability to strongly recommend appropriate sentencing options for the consideration of the judiciary, as per section 718 of the Criminal Code of Canada.

The Ottawa Police Service and the general police community have had many occasions to respond successfully to similar challenges related to the question of gender. These previous opportunities have allowed us to update our practices and to provide training associated with prisoner care, search of prisoners, initial police response and community outreach. We see no reason why, if this amendment is successful, policing will have any issues in providing a similar appropriate response.

In relation to community outreach, the Ottawa Police Service has a long history of working closely with its diverse communities and in 1991 established its Gay, Lesbian, Bisexual and Trans — or GLBT — Liaison Committee, one of the first of its kind in Canada, which consists of both community police and other public safety representatives. We have strong connections with community members and organizations that educate and support equality for gender identity and expression. The experiences of community members impacted directly by hate based on gender identity and expression, as well as members who work with us, is what helps to shape our support for this bill. Our GLBT Liaison Committee submitted its written support to Bill C-279 when it was first introduced.

Many of us have family or co-workers who are touched by gender identity and expression, and unfortunately most often it is hateful acts of discrimination or violence that bring the discussion of this largely hidden aspect to one of public discord. Those who have been impacted by these targeted crimes have expressed frustration that the justice system seems blind to these premeditated acts and fails to recognize their vulnerability.

Much of today's policing practices are still based on the fundamental principles laid out by Sir Robert Peel. One of those principles says, ''The public are the police, and the police are the public.'' From both perspectives, it is imperative that fear be kept to a minimum and trust be continually nurtured to ensure the best possible engagement when it comes to hate-motivated crime.

Building and sustaining trust is difficult to achieve when individuals, their families, co-workers and communities believe that their human rights have been ignored, leading to increased fear and under- and non-reporting, as well as eroding the trust relationships required to continue to have safe, healthy and diverse communities. Police services recognize that public trust is required to achieve the goal of community safety, and we value this trust as our currency.

Support of this bill ensures equitable access to punishment. It sends the right message to society that hate will not be tolerated and acknowledges the distinct aspects of gender identity, further reducing confusion with sexual orientation or other similar factors, and that the police and community can continue to engage, build trust, prevent potential hate and bring those to justice who do commit hate crimes.

Lastly, our messaging abilities to victims become much stronger when we can explain the sentencing options open to the judiciary as they relate to crimes committed against them based on their inclusion as an identifiable group. We will be able to proactively reach out to those communities and look for victims who may have been deterred previously and now come forward to report.

I believe I can best summarize the Ottawa Police Service's position on this amendment by quoting a reference to the Criminal Code regarding increased sentencing in relation to hate crimes.

. . . it can be seen as an expression of Canadian social values of respect for diversity and preservation and promotion of multiculturalism. It is more than simply a reaffirmation of existing sentencing principles but a direction to judges to give substantial weight to this aggravating factor.

For all of these reasons, the Ottawa Police Service supports the amendment of this bill as proposed. We look forward to any questions or concerns. Thank you.

Senator Plett: I have a couple of very brief questions for both panelists, if I could.

The witness immediately prior to you, lawyer Michael Crystal, suggested that the definitions be removed, that they are a real problem here. That is what he saw as the biggest weakness in this legislation, so I would like your comments on whether you would support a bill that is basically what it is now with the definitions removed.

Ms. Mendelsohn Aviv: With the definitions removed or as is? I'll answer both. Would that help?

Senator Plett: Okay.

Ms. Mendelsohn Aviv: We don't have a position on the definition. I think the definition is fairly broad. I think it's not ideal, but if an amendment were to be put into this bill and it had to go back to the House of Commons, the likelihood that it would get passed in this session is very small. In other words, any amendment at this point would be a failure to get it done, and that's the job that I think is most urgent and most pressing. The definition is certainly one that we can live with and that we would accept. So, yes, we would support the bill as is.

Senator Plett: But you would agree that it is the job of the Senate to make sure that we get legislation as close to perfect as possible, even if it takes a little longer to do that.

Ms. Mendelsohn Aviv: This legislation may be as close to perfect as it's going to get, and I think that it's the job of the Senate at this point to pass the legislation so that these protections are put in place. You've heard a lot about the vulnerability of trans people, but the numbers are extreme. Ninety per cent of youth experience various forms of verbal harassment, and 25 to 37 per cent of them experience physical aggression.

Senator Plett: Ninety per cent of all youth?

Ms. Mendelsohn Aviv: Ninety per cent of youth in schools, according to a study.

Senator Plett: So how does this bill deal with 90 per cent of youth? We're talking about only a very small community here.

Ms. Mendelsohn Aviv: I'm sorry; 90 per cent of trans youth experience verbal harassment.

Senator Plett: Sorry. You said youth.

Ms. Mendelsohn Aviv: I'm sorry. I was in a context, and that's how I was speaking.

Senator Plett: I appreciate that. Thank you.

What's the Ottawa Police Service's position on that?

Mr. Sweet: I think any bill that goes without a definition would make it more challenging for us. We would be looking for other sources, such as Crown attorney information, to assist us with that.

Definitely, definitions would help to inform an investigator in seeking the proper guidance as to the charges that are laid or the discussion that occurs with the Crown attorney, but I don't think it would be defeatist.

Senator Plett: I want to, again, be very clear that I support trying to combat any hate crime, and I think I've been clear on that from the get-go. I support aspects of this bill — job equity, housing equity, so on and so forth. I asked the Egale representative whether people had the right to not feel awkward, and he said nobody has the right not to feel awkward. I didn't agree with him, but let me rephrase that.

Does every person, including my granddaughter, my wife and my mother, have the right to feel safe wherever they go?

Mr. Sweet: Safety obviously is very independent to each and every one of us. In a general context, of course, everybody wants to feel safe wherever they go.

Safety is a definition that has probably changed throughout generations and continues to evolve. But to answer it generally, yes, everyone has a desire to be safe.

Senator Plett: The trans community is suggesting that they be allowed in private places of a different biological gender, and their main argument has been safety. That has been their main argument. They have been abused and threatened. When a biological male, transgender female has to go into a male bathroom, he/she feels threatened and doesn't feel safe. And we are saying that they have more right to feel safe than a 5-year-old who says, ''I don't want to be in that bathroom with that person,'' and instead I'm being told by the sponsor that's the same as her not wanting to be in a bathroom with an Asian or a Jew.

Again, do not both sides have equal rights for safety?

Mr. Sweet: I agree that both sides have that equal right to safety. I think it's important to distinguish the difference between those that are displaying normal human activity in that safe environment and those that are bent on criminality. That's where the division is, in what I've been listening to for this morning. There are those that are going to be there and may see this as an opportunity — although I think it's very much a minority — to commit a criminal act, where others would not see that as that opportunity, and I don't think that's where the safety issue would be nearly as difficult.

Senator Plett: Thank you.

Senator Mitchell: Thanks to all of you for being here with us and for your presentations. I appreciate it.

I wonder, Ms. Mendelsohn Aviv, if you could just read that quote that you mentioned in the Vriend case.

Ms. Mendelsohn Aviv: Sure. The court said, in relation to the law not recognizing the rights of gay people, discrimination on the basis of sexual orientation:

The denial by legislative omission of protection to individuals who may well be in need of it is just as serious and the consequences just as grave as that resulting from explicit exclusion. . . . exclusion, deliberately chosen in the face of clear findings that discrimination on the ground of sexual orientation does exist in society, sends a strong and sinister message. The very fact that sexual orientation is excluded from the IRPA, which is the Government's primary statement of policy against discrimination, certainly suggests that discrimination on the ground of sexual orientation is not as serious or as deserving of condemnation as other forms of discrimination. It could well be said that it is tantamount to condoning or even encouraging discrimination against lesbians and gay men. Thus this exclusion clearly gives rise to an effect which constitutes discrimination.

Senator Mitchell: I want to say, Mr. Sweet and Mr. Snoddy, I was at a trans memorial service that is held in your headquarters every year, and the police chief was there. It's remarkable what you do as a police force in this area and your presentation certainly underlined that.

This addresses both presentations, in a way. It's a question of exhibitionism or criminal activity. It's interesting that the power or the overwhelming message, Mr. Sweet, in your presentation is that there was so much crime against trans people and it's so intense that you feel this would help you deal with it. On the other hand, those who might exploit it — although there's been almost no evidence of that, and you mentioned that — really would be subject to criminal sanction in any event, and this question of exhibitionism, over the top, is criminal and we're not going to inhibit it by inhibiting someone else's rights.

Mr. Sweet: Yes.

Senator Mitchell: Okay.

Do you want to comment on it too? Go ahead.

Mr. Sweet: I think you hit exactly upon that. There are existing criminal laws that will be able to attack that type of behaviour.

We frankly don't know the scope of the problem because it's not known; we don't measure it. We need to be able to do that. We would be in a better place to provide the training and outreach we need to do, and it would put us in a better place like we have grown through these years.

Ms. Mendelsohn Aviv: There probably isn't a woman or a girl out there who doesn't know the feeling of vulnerability from sexual harassment, sexual assault, unwanted touching or attention in various places, including women-only spaces and by people who should be there and by people who shouldn't. It happens all the time, and it's a tragedy when people are assaulted in various places.

I think that the vulnerability women feel probably doesn't hold a candle to what is experienced by the trans community, but we need to distinguish between fears that we have about these kinds of protections being exploited and evidence of whether that is in fact happening more. Based on the research I've done, there is no evidence to suggest that including gender identity is going to lead to more crime, more exhibitionism, and more voyeurism. This has been going on for 15 years in Canada that we are recognizing gender identity, and if there were a problem of voyeurism, we'd call our excellent police services and ask them to do something about it or to look into a situation.

Senator Mitchell: You made the point very powerfully that it's been going on for 15 years. Of course, those who might be opposed to this legislation would say, ''Well, if it's happening already and that argument is made, why bother?'' The answer is if it's happening already, what could be the harm in doing it? There might be some advantage. How would you answer that issue to those who say sex and sexual orientation already cover it, so what's the point?

Ms. Mendelsohn Aviv: I think it's an excellent question.

First of all, the symbolic value of excluding one of the most marginalized groups is enormous. It's a discriminatory act, as we read from the quote in Vriend. That's not me saying it; that's our courts saying it.

But we've also heard from people who were involved in activism and police work in the LGBTQ community who know it has enormous value as a deterrent effect and educational effect in terms of a mandate of various our institutions, human rights commissions, police forces and tribunals to educate. What we have in our laws does filter out educationally as well to the rest of society.

Senator Batters: Thank you all for being here today. My question is for Superintendent Sweet.

In your presentation today you spoke about what you think would be a helpful inclusion to include gender identity under the hate crimes section. Earlier today I asked another witness about this particular section, and now I direct your attention to it.

Sections 2 and 3 of the Canadian Human Rights Act and section 718.2 of the current Criminal Code both refer to sex and sexual orientation, but section 318 of the Criminal Code refers to sexual orientation but not to sex.

Given that, it seems like there's definitely a gap and there could potentially be unintended consequences if gender identity is added to section 318 of the code but sex is not. Under this particular private member's bill from this NDP member of Parliament, he's not proposing to add ''sex'' under that hate crime section, but he is proposing to add ''gender identity.'' I'm wondering if you could comment on that.

Mr. Sweet: My opinion would be that the sex aspect is covered in the various pieces of legislation that we have for, say, sexual assault and where it's already discussing that part of those laws specific to it. I think it's almost implied. I don't know if that adequately answers your question.

Senator Batters: So sex would be implied but gender identity would not be implied dealing with a hate crime? If someone is specifically committing a crime against a woman because that's a woman —

Mr. Sweet: It's a very valid point. I can research that more and maybe give you some answer back on that.

I can say that typically that would be targeted more in the sexual assault arena than it is right now. In speaking with our hate crimes investigators yesterday, it's not something that came up as an issue or something that is concerning right now.

Senator Batters: Of course, that would be dependent on the fact that it was actually a sexual assault. There could be many other types of hate crimes that are not sexual assault.

Mr. Sweet: Correct.

Senator McIntyre: In your opening remarks, you mentioned the La Forest report. As I recall, that report was written by former Justice Gérard La Forest, and it was called Promoting Equality: A New Vision. As I further understand, it has something like 165 recommendations, one of which was that gender identity should be added to the Human Rights Act. Are you aware of any mention in the report that gender identity be added to the Criminal Code?

Ms. Mendelsohn Aviv: To be frank with you, I don't know one way or the other. I can't answer that.

Senator McIntyre: Under the current law, the Human Rights Commission, the Human Rights Tribunal and the courts view gender identity and gender expression as protected under the Human Rights Act. As I understand your presentations today, and as I understand the presentations of other witnesses who have supported Bill 279, adding the grounds of gender identity and gender expression to the Canadian Human Rights Act would make it explicit.

On the other hand, we had critics of the bill who appeared before us and made it clear that there are currently 11 grounds on which discrimination is prohibited, including sex and disability. Those people have informed us that the bill doesn't add new rights to transgendered Canadians and that the bill only serves more explicit legal protection for transgendered Canadians.

May I have your thoughts on this as far as the critics are concerned? I know your position, but I just want to hear from you as far as the critics are concerned and those 11 grounds on which discrimination is prohibited.

Ms. Mendelsohn Aviv: First of all, there is something awkward in asking a person to squeeze themselves into a definition that doesn't fit. There's something awkward and unseemly about asking a person who is being discriminated against because they're trans to have to use sex or, worse, disability as a protected ground from discrimination. Being trans in itself is not a disability. That's my first answer.

My second answer is really again an echo of what's been said already. There is still some legal uncertainty as to what the higher courts will do and what their pronouncements will be as to whether gender identity can in fact continue to be recognized as a protected ground of discrimination within ''sex'' or within ''disability,'' which, in itself, I don't think is the way that we should be going.

The last point you made is the suggestion that trans people would have greater rights because they're listed now than other groups. Most of the groups that need protection are listed, first of all, and second of all, the tribunals are experts at dealing with conflicting rights. It comes up not just in this context. This is my bread and butter; this is what I do. There are fascinating cases looking at what happens if somebody's disability rights conflict with someone else's equality rights. Because I have an allergy, I can't sit in the same room as somebody who has a seeing eye dog, so what happens? The Ontario Human Rights Commission has recently released a policy about conflicting rights. This is what they're expert at.

It falls to the tribunals and the commissions to come up with these policies and to make these decisions because they are very individualized. They need to be made in context on a case-by-case basis. What is true for one setting may not be true for another, and it does need to be looked at on an individualized basis. It wouldn't be appropriate for the legislation that we have, such as the Canadian Human Rights Act.

Senator Mitchell: I wonder if you are aware, Ms. Mendelsohn Aviv, that in Bill C-13, the cyberbullying bill, the government actually, to its credit, has included ''sex,'' so that's already been taken care of. I think that bill will be on its way to this very committee eventually.

Ms. Mendelsohn Aviv: Yes. I'm not here with a stated position but, on its face, it sounds like a very sensible amendment. Either way, the focus of this bill, as you certainly know, is to protect trans rights and to get gender identity included. That's the focus. Sex can and should be added, perhaps under Bill C-13 and, if not, perhaps under another initiative, but these are two separate questions. We shouldn't be holding up the passage of this bill because of something that may or may not happen with Bill C-13.

Senator Mitchell: Thank you.

The Chair: That concludes this session. We very much appreciate your appearance today. Your testimony is helpful to our deliberations.

Members, our next meeting will be October 22. We are unsure what will be on the agenda, but we will advise you at the earliest opportunity.

(The committee adjourned.)