Proceedings of the Subcommittee on
Communications
Issue 26 - Evidence
OTTAWA, Wednesday, May 27, 1998
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-11, to amend the Canadian Human Rights Act in order to add social condition as a prohibited ground of discrimination, met this day at 3:38 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, our first witnesses are from the Canadian Human Rights Commission, Madame Michelle Falardeau-Ramsay and Mr. John Dwyer.
The floor is yours. Please proceed.
Ms Michelle Falardeau-Ramsay, Q.C., Chief Commissioner, Canadian Human Rights Commission: As you know, honourable senators, it is always a pleasure to appear in front of your committee. I thank you for this opportunity to present the Canadian Human Rights Commission's view on Bill S-11, which would amend the Canadian Human Rights Act to add social condition as a prohibited ground of discrimination.
Let me say from the outset that we support this initiative and commend Senator Cohen for her efforts in putting this legislation forward. I also commend the Senate for its excellent work on the poverty issue over the years. From the 1971 report of the Special Senate Committee on Poverty to Senator Cohen's own report entitled "Sounding the Alarm: Poverty in Canada," this body has made a valuable contribution toward increasing awareness of the plight of low-income Canadians. It is my understanding that the bill you are considering today was the direct outgrowth of the latter report, as it was one of that report's four recommendations. In particular, the report recommended, and I quote, "That the Parliament of Canada pass a bill to amend the Canadian Human Rights Act in order to extend and give legal effect to the principle that everyone should have equal opportunity and to disallow discriminatory practices based on economic status."
This is a principle that our commission and I personally have advocated since my appointment as chief commissioner in January 1997. In our view, the inclusion of social condition in the Canadian Human Rights Act has both a practical and a symbolic impact.
On the practical side, it would make clear to federal employers and service providers that they cannot discriminate against someone because, for example, they are in receipt of social assistance. This is by no means a new concept. The Human Rights Codes of seven Canadian provinces provide some measure of protection from discrimination based on social or economic status.
The application of this principle differs from province to province. For example, the Human Rights Code of Newfoundland uses the term "social origin," while "social condition" is mentioned in the Quebec Charter of Rights and Freedoms. In Nova Scotia, Manitoba and Alberta, discrimination on the ground of "source of income" is prohibited with respect to all of the activities protected under human rights law. In Saskatchewan and Ontario, the law prohibits discrimination on the basis of being "in receipt of public assistance." In Ontario, however, this provision is restricted to the issue of housing.
[Translation]
The provincial commissions inform us that they have not received large numbers of complaints on this ground; in Quebec, for example, it constitutes only 6 per cent of their total caseloads, and in Saskatchewan the figure is less than two per cent. For the most part, complaints that have been filed with the provincial commissions relate to rental housing, although there have also been some complaints against businesses who refuse credit to people who are on social assistance or other government benefits.
While it is difficult to determine what kinds of complaints our own commission would receive if "social condition" was added to the federal law, I would expect that most would relate to denial of services in such areas as banking, transportation and telecommunications. We recognize that the Canadian Bankers Association has made an effort to address the issue of banking services for low-income people through a policy announced earlier this year, but anti-poverty groups continue to express concerns. Just this month, the Quebec media reported problems welfare recipients were having with access to both federally-chartered banks and provincially-regulated Caisses Populaires. There could also be complaints related to deposit requirements by telephone companies. But based on the provincial experience, I do not anticipate that we would be inundated with complaints if the ground were to be added.
The inclusion of "social condition" as a prohibited ground of discrimination does not mean that companies would be compelled to provide service where there is evidence that the individual cannot pay for the service, or is clearly a financial risk. Section 15(g) of the Act clearly states that it is not a discriminatory practice to deny a service, or treat someone differently in the provision of the service, where there is a bona fide justification for that denial or differentiation. In our view, section 15(g) adequately protects service providers in such situations.
But regardless of the actual number or nature of complaints we would receive under the amendment proposed in Bill S-11, the inclusion of "social condition" in the Act would have an important symbolic significance. It would give recognition to the idea that differences in economic status are as much a source of inequality in our society as race, gender or disability. This notion has been enshrined in such international instruments as the Universal Declaration of Human Rights and the Convention on Economic, Social and Cultural Rights, both of which Canada has signed.
In her appearance before this committee, Senator Cohen described poverty as "one of the greatest barriers to equality in Canadian society," a statement with which I fully agree. She added that poor Canadians "live daily with social stigma and negative stereotypes" and face prejudice similar to those who are discriminated against on the other grounds enumerated in the Act. It is primarily for that reason that I would support this legislation. While laws alone cannot change attitudes, they do have an effect on defining what is acceptable behaviour in a given society. Adding "social condition" to the Canadian Human Rights Act would send the message to Canadians that prejudice against people who are poor is as unacceptable in our society as prejudice against people who are black or aboriginal or disabled or female.
This is particularly important at a time when the proportion of Canadians who are poor appears to be on the increase. You are no doubt familiar with the National Council of Welfare's recent report, which showed that poverty rates have risen steadily since 1991. I was particularly troubled to see the Council's statistic that the rate of child poverty is nearly 21 per cent, affecting nearly one and a half million children. I recognize that the reduction or elimination of poverty goes far beyond the mandate of our Commission or any human rights agency, but it is a goal to which all Canadians should be committed.
[English]
I should like to conclude by saying that including "social condition" in the Canadian Human Rights Act is a small part of a much broader issue: how to make the link between the overall question of poverty and the effective enjoyment of human rights. Regardless of whether Bill S-11 is adopted, I hope that the review of the Canadian Human Rights Act, which has been promised by the Minister of Justice, will explore ways of dealing with questions of economic and social rights in the context of human rights legislation.
As I said in my introduction to the commission's annual report, the international community has recognized for some time that human rights are indivisible, and that economic and social rights cannot be separated from political, legal or equality rights. It is now time to recognize poverty as a human rights issue that exists here at home, as well.
Senator Kinsella: Honourable senators, my first question relates to your observation that the government has indicated that it might review the entire Human Rights Act. Such a review has been discussed at the federal level for a long time, just as it has been discussed in the different provincial and territorial jurisdictions. Therefore, from a practical equality human rights standpoint, would you not agree that it would be better to have this prescribed ground of discrimination surgically added now?
Ms Falardeau-Ramsay: It is always better to have something now than later. I am all for having this change now. As you mentioned, and as we all know, I appeared in front of your committee recently concerning an amendment that we had been requesting for close to 10 years.
At the same time, I should like to remind you that if, and when, this general review of the act comes, we must look at issues broader than "social condition." There are other issues that are linked with social and economic rights that must be addressed in a complete review of the act.
Senator Kinsella: I agree with you that it would be better to have this amendment adopted and this prohibited ground of discrimination added to the list this year.
Ms Falardeau-Ramsay: If my initial presentation gave you the perception that I did not want the amendment to be adopted right now, that is not the case. We want it now.
Senator Kinsella: My colleagues on this committee and I are of the opinion that this particular prohibited ground of discrimination ought to be added. We ought not to be dissuaded by the argument that we need an overall review of the Human Rights Act first.
I should like to go on a bit of a tangent, since we have raised the issue of an overall review. I am not suggesting that this is at all the view of the Minister of Justice, but are you concerned that in some quarters there may be support for an overall review, not for the purpose of recasting anti-discrimination law to meet the exigencies of the millennium, but as a way to minimize and de-emphasize human rights?
Ms Falardeau-Ramsay: If I look at the history of the amendments and the jurisdiction that has been granted to the commission in the last few years, I think that, to the contrary, it would be to ensure that all areas of possible discrimination are covered in this new legislation. As well, it is my hope that new tools will be granted to the commission to address some specific problems. For example, I refer to tools to address systemic discrimination.
Senator Kinsella, you have had a long experience in the area of human rights. As you well know, human rights change as society changes. The type of human rights violations that we found in society 20 years ago no longer exist today; they have evolved.
I think there will always be individual discrimination. There is now a realization that systemic discrimination exists. We do not necessarily have the tools to deal with it.
Senator Kinsella: My colleagues on this committee and I have been working on the question of the necessity or non-necessity of having a definition of "social condition." Is it not true that very few of the proscribed grounds of discrimination are defined? As the Chief Commissioner of the Canadian Human Rights Commission with responsibility for the administration of the act, what advice would you give this committee as to the necessity of defining that particular proscribed ground that is the essence of Bill S-11?
Ms Falardeau-Ramsay: Personally, I always think that it is dangerous to define any concept that goes into a piece of legislation because it has the danger of rendering it so inflexible that it will have a limited application. As I was explaining, the type of discrimination attached to a concept changes over time. If it is too narrow in its definition, it prevents the courts from using this particular concept to deal with something that would normally fall under such a concept. This means that an amendment is necessary. We all know how some amendments can take a long time to work their way into law.
It took something like 15 years before the "sexual orientation" amendment was adopted. It is much more prudent and of much more consequence for society as a whole that concepts remain non-defined and quite flexible. We see that situation right now, for example, with the definition of spouse that exists in some legislation. Legislation must be changed so that it will be in accordance with the interpretation that the Supreme Court has given to the Charter.
Senator Gigantès: I thank you for your answers. It is with great hesitation, respect and trepidation that I disagree with so learned a counsel in the law. I dislike the idea that we put into law something which, to me, is a new term and a euphemism. When you started, madam, you spoke of a report that talked of poverty. The next step in your argument took us to economic status. We have now come to "social condition."
When these hearings first started, all the definitions of "social condition" seemed to boil down to poverty of some sort or another. If we want to add things to the definition of "poverty," then why not say so? Lawyers and parliamentarians object to the courts making law. If we give them vague concepts, they will make law. I think they prefer clarity. If "social condition" is not defined, even just a little, then we will have split decisions in the court because different things will be understood by different judges.
I support the legislation and its spirit. It is time to do this. However, I should like some clarity of language. I do not like vague concepts. It is a bad habit that started with Plato, who said, "When I say this, I do not really mean this, but something else." We mean "poverty" but we do not say "poverty." Instead, we say "social condition."
Is the fact that I am a widower in Hudson, where there are eight widows to each widower, a social condition? Can I complain that I am being discriminated against? Why do we not define it a little? I feel that it will make the judges happier, and it will certainly obviate the criticism that we have produced poor law. I think unclear law is poor.
Ms Falardeau-Ramsay: I respect very much your opinion, but I beg to differ.
To address your comment about euphemisms, the problem we would have in using the term "poverty" in the legislation -- I am speaking as a practitioner here -- would be that there is almost no objective way to define poverty. Some will use the low income cut-off from StatsCan. Others say, no, even those people are not really poor. Others will say that it depends on where they live in the country. Then others will say that it is people who are receiving social assistance. Others will say no, because there are so many abuses there.
I think it is important to have a concept that has both objective and subjective content. There is almost no possibility of having a concept without a subjective content of some kind, especially in this area. We must have basic objective content.
It would also have the benefit of covering people not only because of their economic status, but also people who are illiterate, for example. That is a social condition. It would also cover people who, for example, have a certain type of work, such as garbage collectors or grave diggers. That is also part of social condition. Those people are sometimes discriminated against in society because of what they do or because of the fact that they cannot read or write. It is more than poverty. It covers the source of income, which is something that you can very well identify and which is very objective. I am only giving you examples.
That is why I think it is difficult to arrive at a complete definition of the term. That is why there is not one concept or one ground of discrimination in the Canadian Human Rights Act that has been defined in legislation. There is no definition for religion, for example. We know that there are sects that are not really religions, as defined by the courts. Those concepts are better not being defined because they allow for a wider range of definition.
When you speak about law-making by the courts, if Parliament establishes laws that define the values by which our society lives, they cannot be too precise, otherwise laws will be there for 25 or 30 years. Society changes in that time. You must leave a certain leeway to the courts to interpret those particular words so that they fit society as society evolves. The Supreme Court has taken the purposive approach in interpreting the Charter so that it will follow with the times.
I think split decisions by the courts are a good thing. That is what makes jurisprudence progress. Chief Justice Bora Laskin used to be a dissenter in many cases, and it is interesting to see that his dissenting opinions are now very often the law. That is the way the law gets better and better. I think it is a good thing that we have dissenting justices on our courts. It also shows that there are different ways to approach a problem.
Senator Gigantès: You are presenting two possible ways of adapting the legislation to change. One is for the judges to do it, and the other is for the elected legislators who, under a democracy, are the ones making the laws. Why should we assume that our elected legislators, who are supervised by us unelected has-beens, never-beens, or whatever, will not adapt the law?
When you said that the term is difficult to define, you gave examples: illiteracy, type of work, source of income. I am not sure that social condition describes those things. I should like a clearer term, definition or footnote. I do not like vague language.
Ms Falardeau-Ramsay: I understand, Senator Gigantès. When you speak about the role of Parliament, I completely agree with you. However, my only problem is that if we have to wait 15 years to get an amendment to the human rights law concerning sexual orientation, will we have to wait 25 years to have an amendment to one of the elements of the definition that would not have been contained in that legislation. That is my problem.
Senator Gigantès: Solon, the father of democracy, when asked if he had written the best laws possible, said, "No, I have written the best laws the Athenians were prepared to accept." I will stand by Solon.
Senator Bryden: I am concerned about a number of things. I can go on the record as being a defender of the poor, saying that the answer to poverty is money. Whenever you cannot fund the money, society comes up with laws.
My concern is that the use of the broad term "social condition" may be so subjective that Parliament would really be saying that you cannot discriminate against a person on any grounds that the Human Rights Commissioner or a judge or a court determines is a grounds of discrimination.
Let me try to indicate what troubles me. You used the terminology that there must be objectivity as well as subjectivity. The operative section of the act states that every individual should have an equal opportunity with other individuals to make, for himself or herself, the life that he or she is able and wishes to have, consistent with his or her duties and obligations as a member of society, without being hindered in or prevented from doing so by the discriminatory practice based on race. In my view, race is an objective term. You can determine that a person is of a race, presumably.
Senator Gigantès: No.
Senator Bryden: You can determine that on the basis of national or ethnic origin. I assume that is determinable objectively.
You can determine whether a person is of a colour. That is an objective determination.
I believe you can determine whether a person adheres to a religion. One may call it a cult, or whatever, but if, to that person, it is a religion, it is a religion. You can ask, "What is your religion?" and he or she will tell you.
You can determine whether I am over 65. You can determine age. You count. That is an objective determination.
You can determine my sex, presumably by examination, assuming it is unaltered.
Presumably a psychologist could determine my sexual orientation. That is an objective determination.
You can determine my marital status by looking up the records. Am I married, single or divorced?
You can determine my family status. Am I single? Do I have children? That is an objective determination.
You can determine if I am disabled. A doctor can determine that and prove to a court that the person is, in fact, objectively disabled.
You can determine whether a person has been convicted of an offence and pardoned.
In the list I have gone through, the only one that seemed to cause anyone concern was race. You are saying that it is not as objectively determined. In most instances, a person will attribute themselves to being of a particular race. These determinations are all before you get to the subjective determination of whether this person is being discriminated against for his or her job or accommodation on the basis of any of these objective things. By adding social condition, you must apply both objective and subjective judgments in determining the basis of the discrimination.
You added a lot of things to Senator Gigantès' list. It is not just whether the person is on social security or if the person is poor. You are saying it might include illiteracy or the type of work they do. It might include source of income. That would be the welfare recipient. Would it include the fact that they may be computer illiterate? Does it mean reading or writing and computer literacy, as well?
I do not think you were intending to make an exhaustive list. However, what we have is a wonderful Pandora's box that will be an industry for human rights lawyers.
I am a lawyer and I once made a pretty good living at it. The problem I have is that the term "social condition" is a different kind of term than the other terms included here. It is far more broad. It is far more flexible, to use your term. It is open to far more subjective determination by human rights commissioners and courts.
Other jurisdictions use different terms. Newfoundland uses "social origin." Another one says "source of income." One cannot discriminate on the basis of that. That is specific.
What troubles me is that the ground of discrimination itself is a value judgment, not whether discrimination has happened based on that ground. That this is a ground of discrimination that fits social condition is a subjective value judgment that ultimately will be reviewed and reviewed. The Supreme Court will say whether it is a good value judgment or not.
My question is this: Is not a huge arena for litigation opened up based on this vague term, even though human rights people seem to think that they know what it means, in general terms? Will this consume a huge amount of resources, dollars and legal talent that might, in the long run, be better spent on trying to solve the real problem, which is poverty?
Ms Falardeau-Ramsay: You raise an interesting point, but if we look at social condition in the Quebec Charter of Rights and Freedoms and the number of cases that went to the Quebec commission -- which are six in number since its inception last year -- I do not think it really opens up that large a Pandora's box.
Although I agree that there might be subjectivity in social condition, I think that it is an objective fact whether the person, for example, is in receipt of welfare income or whether the person is illiterate.
You mentioned marital and family status. I am sure that 20 years ago, when this was included in human rights legislation, it meant at that time only married or not married. Now it means a married, common-law or same-sex relationship. Who knows what might come in the next few years.
I think that any of these areas are not necessarily purely objective questions. Let us take colour as an example. If you are the only Portuguese in a small town in the Lac-Saint-Jean area, you might be considered a person of colour because your colour is a bit darker than persons around you. However, if you live in Toronto, you would not be considered of a different colour. It is very difficult to say that the present grounds of discrimination do not leave the possibility of interpretation. I would be surprised that it would mean a floodgate of cases. As I mentioned in my presentation, the numbers are very few in the provinces where this condition exists. However, I think that it is a better term than poverty because we would then be in the very difficult situation of trying to interpret what poverty is. When do you start being poor? When do you stop being poor? Does it depend on the number of children you have? Does it depend on where you live? It depends on many issues. It would be purely based on economics. Social condition would allow things such as illiteracy and the type of work you do.
Senator Bryden: Almost every witness that I have heard has indicated that the word "social condition" at least includes poverty. By using "social condition," we are not avoiding having to define what constitutes poverty because, presumably, "poverty" is caught under "social condition." We are saying that a lot of other things are caught, as well.
I will now refer to the time when sexual orientation was introduced in the federal Human Rights Act. If you go back through the debates in the Senate, I can hear people sitting around this table saying, "We are not adding any rights to anyone." Some people were saying, "What you are doing will cause huge costs to companies and to governments that will now have to pay benefits that they used to have to pay only to couples of opposite sex under the law." For everyone who stood up to defend putting this in -- and I did not participate in the debate; it was a bit above me -- this was absolutely the case. However, this would not have a financial implication at all. It would allow people to have a fair chance to get a job. They would not be discriminated against because they were gay or lesbian. They would also be able to get accommodation and to get into schools.
The Supreme Court has struck down the Superannuation Act, which says that "these benefits are required to be paid to a surviving spouse." "Spouse" is defined as "a partner of the opposite sex." That has now been found to be a violation of the charter. Nova Scotia has just agreed that it means that surviving spouses of the same sex will benefit from all of the programs as far as insurance, disability, and so on. It is now believed that all of the other provinces will follow suit, as will the federal government, if it has not already done so. What is more, that will be a precedent. All of the private insurance and pension plans will fall in line, also.
All of that may be just and right and fair, but when those two words, "sexual orientation," were going through Parliament, people were convinced that it was simply an opportunity to level up the playing field. There were no financial implications. We were not faced with choosing to extend this right, this financial benefit, to this group. That does not mean we must take it away from children. It was not the usual thing you are presented with in making significant financial choices.
My concern is that a broad term like this can do the same thing. You do not need 700 cases on this if the Supreme Court of Canada makes a ruling on one case that has implications for every business, every government, every hospital board, and every school board in the country.
On the basis of social condition, which almost everyone agrees includes poverty by some definition, in our system of law a person is innocent until proven guilty. Either by common law, or certainly by tradition, if you were charged with a serious crime, you are entitled to the best defence available.
For example, two people go to a major law firm. One is charged with murder. He hires the senior partner, and is acquitted. The poor guy goes to the same law firm, and gets the junior lawyer. Is he being discriminated against?
Ms Falardeau-Ramsay: Not in your last example, no. I do not think that we are dealing with the right to a lawyer. As far as I know, there is no case that says that you have the right to the best lawyer. You only have a right to a lawyer.
I cannot see any ground that would cover that. The ability to pay what the senior lawyer would require would be a bona fide justification. I do not see the link with human rights there.
Senator Bryden: How does that differ from a bank that says, "To have an account here, you must have $500." I am not saying that you must have $500 to have a bank account. You can go to the bank across the street, which only require $10 or no minimum. The rich guy can have the bank that he wishes because he has $500. That is a matter of money. However, the poor person does not have the $500. That bank is not saying that you cannot have a bank account; you just have to go somewhere else.
Ms Falardeau-Ramsay: It is the same thing if I have $500 and I go to a legal firm. The legal firm would say, "Our hourly rate is $100." Even if I have the $100, I cannot use your services because I am poor or because I am in receipt of social assistance.
If it is a service that is universally given to the public, as is the case with bank services, then a bank should be in no position to say, "I will charge $500 to one person and $10 to the other." It should be the same for everyone. Everyone should have access to that service.
In the banking industry specifically, the type of complaints we seem to receive involve, for example, cases where the bank refuses to open an account if you do not have three pieces of identification. Most people who are in receipt of social assistance, welfare cheques or that type of thing, have only two pieces of identification. They will have their social insurance number and their health card, but they will not have a credit card, passport or a driver's licence. Therefore, they will not be able to open an account.
That is the problem. That means they have to go to those cash service places where they are charged 20 or 30 per cent to cash their cheque.
I have seen even worse things. I have seen some banks charge aboriginal people $25 to cash a government cheque, while they would not charge government employees anything. They were both government cheques. That is the type of discrimination it is meant to prevent. It is not to prevent choices of bank. Even if I would want to go to a merchant bank and open an account, they would say no because they only deal with business undertakings, not with individuals. It is the same thing.
What is important is that service generally available to the public should be available without discrimination against people who are in a condition that is looked upon as disadvantaged in society.
Senator Bryden: Let us say one bank, not a merchant bank but one that accepts deposits, say the Bank of Montreal, has a general policy across every branch that a minimum deposit must be $500, and that the Bank of Nova Scotia does not have a minimum deposit at all. If the Bank of Montreal applies that right across its services, it is non-discriminatory?
Ms Falardeau-Ramsay: Absolutely. That is no problem.
The Chairman: Senator Bryden, I would point out that not all those grounds for discriminatory practices that you mentioned are purely objective. When you speak of a country of immigrants, such as Canada, after one or two generations, race is generally quite mixed with most people, and skin colour is something that goes on a continuum. There is no break anywhere in the variety of skin colours that I am aware of, so that any discrimination on these grounds is subjective, rather than objective.
[Translation]
Senator Joyal: On the subject of reviewing the Canadian Charter of Rights and Freedoms, have you submitted a comprehensive report to the Justice Department on the series of amendments that you would like Parliament to adopt?
Ms. Falardeau-Ramsay: Not yet, because we were told that we would be invited to appear before a Justice Department committee in charge of overhauling the legislation. Of course, the Commission has been working on this for a number of years. We hope that the Justice Department will also consider the outcome of consultations with those groups concerned by the legislation's application. We have a pretty good idea of the types of in- depth legislative changes we would like to see. However, I do not think that we have a monopoly on good ideas and in my view, it is important for a cross-section of the population to be consulted on this matter.
Senator Joyal: If this bill had not already been tabled in the Senate, would the particular ground that we are discussing here be part of your recommendations to the Justice Department, that is if you had to decide here and now?
Ms. Falardeau-Ramsay: If no similar prohibited ground of discrimination were included in the legislation, we would not be fulfilling our international commitments. If my memory serves me correctly, when the Convention on Economic, Social and Cultural Rights was reviewed for the second time, the UN committee was somewhat critical of Canada for not integrating the convention's provisions into its domestic laws.
Signatories to the Convention pledged to bring in legislative measures to enforce the Convention's provisions. If you take a look at these various instruments, you will see that "social condition" and everything this entails are included. In my view, it is very important that Canada, which prides itself on being in the forefront of human rights in the world, enact appropriate legislation to fulfill its international commitments.
Senator Joyal: You have touched on the second series of questions that I had for you. You just said that Canada was rapped by UN agencies for failing to live up to the commitments it made when it signed the international Convention on Economic, Social and Cultural Rights. Is the wording in the convention--some of my colleagues are concerned about this--identical to the wording in the bill when it comes to "social condition" as a specific prohibited ground of discrimination? Is there a more specific or broader, as the case may be, definition or concept to describe the activity that should be sanctioned?
Several of my colleagues want assurances that the concept is not so elastic that it might be interpreted any old way. I have my own opinion on the subject, but I think it would be useful to know what terminology is used in these documents when it comes to this specific ground and which international conventions and instruments specifically address this issue. Could you elaborate further on this point?
Ms. Falardeau-Ramsay: I would be happy to, but unfortunately, all I have is the English version of the declaration with me. But I could forward a copy of the French text to you. I would not want to venture a translation and perhaps make some mistakes.
Article 22 of the Universal Declaration of Human Rights states the following:
[English]
Everyone, as a member of society...
[Translation]
In my view, this is much broader than "social condition."
[English]
...has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
[Translation]
These may be considered vague terms, but surely they encompass "social condition."
Article 25 states the following:
[English]
Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
[Translation]
This also seems fairly broad to me. It states:
[English]
Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
[Translation]
Article 2 of the Convention on Economic, Social and Cultural Rights notes that the state parties undertake to enact legislative measures to address these various issues. The provision in question reads as follows:
[English]
The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
[Translation]
In my view, this is also much broader than "social condition." Pursuant to article 11,
[English]
The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.
[Translation]
The wording is also fairly broad here as well. Moreover, article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, also known as the European Convention on Human Rights, reads as follows:
[English]
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
[Translation]
I could continue as I have other articles from the European Charter. I also have copy of the Vienna Declaration on Social Conditions. In all of these instruments, the stated prohibited grounds for discrimination appear much broader than "social condition." The terminology used, for instance "other status" and so forth, seems excessively flexible, in my view.
Senator Joyal: You mentioned that the UN agency responsible for evaluating the extent to which signatories or member countries were fulfilling their obligations with respect to human rights was critical of Canada's performance. Could you share with us that portion of their evaluation of Canada which, in your view, specifically relates to the subject at hand?
Ms. Falardeau-Ramsay: I will read you what it says in English, but we can get a translation for you. The report states the following:
[English]
In view of the obligation arising out of article 2 of the Covenant to apply the maximum of available resources to the progressive realization of the rights recognized in the treaty, and considering Canada's enviable situation with regard to such resources, the Committee expresses concern about the persistence of poverty in Canada. There seems to have been no measurable progress in alleviating poverty over the last decade, nor in alleviating the severity of poverty among a number of particularly vulnerable groups.
[Translation]
The report also says that Canada should have brought in legislation to meet the obligations it contracted when it signed these various international instruments.
[English]
The Chairman: I have the wording of the text here, if you would like to hear it, Senator Joyal. Under Suggestions and Recommendations, it says:
The Committee recommends the incorporation in human rights legislation of more explicit reference to social, economic, and cultural rights.
Senator Gigantès: Explicit. Madame Falardeau-Ramsay said it was excessive.
Ms Falardeau-Ramsay: I think you misunderstood what I meant. What I said was that I thought it was much larger and more flexible than the term "social condition."
Senator Gigantès: It means a certain thing, but you used it in a loose way. The word "excessive" means "too much." You used that term.
Ms Falardeau-Ramsay: I do not want to get into a discussion on semantics with you. This is not the place. We could, if you wish, discuss that later over a cup of coffee.
Senator Gigantès: There are no problems of philosophy, only problems of language. This meeting is a good illustration of that.
Senator Joyal: I thank you, Madam Chair, for quoting that statement. It is very important to keep that in mind when we decide on the proposal of Senator Cohen and the context in which this proposed legislation is introduced and fits into our institutions.
[Translation]
Senator Beaudoin: Getting back to "social condition," Senator Cohen is recommending that the legislation be amended to include a reference at various points to "social condition."
If I understand correctly, you support the proposed amendment. The debate on the matter has not changed. People argue that Parliament should be very specific and that judges are being given too much leeway.
When it comes to the field of public law, I follow a certain philosophy. If we are too specific, we are going to spend all of our time amending laws, as we do in the case of tax laws. I have no objections to amending the tax laws each year. It makes no difference to me. However, if it were a matter of amending fundamental pieces of legislation each year, then I would have a problem with that.
If I follow you, you say that the courts will be left to interpret the words "social condition" and that they will take into account the normal course of events. The courts interpret the Constitution. That is their role. Whether we like it or not, that is the system we have and I like it.
To my understanding, you see this as having the following advantage: By using a catch-all expression like "social condition," Canada is complying with its international obligations that it contracted voluntarily.
I have no objections to the words "social condition." I have no objection to the courts being called upon to interpret the meaning of "social condition," whether in 1998, the year 2000 or the year 2002. Some will say that Parliament can do the same thing. However, Parliament sometimes lacks the courage to act on such matters and the courts can come in very useful.
Sometimes we lack the courage to act, but not always. Sometimes, we do not enact legislation in a particular sector as often as we should.
If you say that by bringing in this amendment, we are fulfilling part of our international obligations, then I have no problem with that. Canada signed a number of international instruments after the 1948 declaration. In some respects, their provisions are more vague and general than the words "social condition." In my view, if we try to be too precise, it can have the opposite effect. That is part of the ongoing debate. I often discuss this matter with my colleague, Senator Gigantès, who argues that Parliament needs to approach things more rigorously and that judges should have less latitude when it comes to interpreting legislation.
Basically, I think that it is a good thing for the courts to have considerable latitude when it comes to interpreting charter provisions. Do you agree with that basic way of thinking?
Ms. Falardeau-Ramsay: I could not have said it any better myself, Senator Beaudoin. That is exactly the rationale behind the proposed amendment. Moreover, I think it was Justice Sopinka who once said that the only protection that the weak and disadvantaged could rely on was that afforded by courts of law. The courts do not have to weigh any political considerations. Perhaps I can find his exact words and share them with the committee. This particular quote clearly illustrates the role that the courts play in protecting the disadvantaged in our society.
Senator Beaudoin: However, I believe it was Chief Justice Brian Dixon who once said that courts of law must also safeguard individual rights when they interpret charter provisions. Justice Dixon also said -- and my colleague Senator Gigantès will be happy to hear me say this -- that Parliament must also protect human rights.
The only point of disagreement that remains, in my opinion, is the wording that should be used. Should we be very specific, even though this can be a risky proposition, or should we employ more general terms?
Senator Gigantès: That could be risky as well!
Senator Beaudoin: Yes, but less so. I do not wish to debate this point at this time. This is your position, is it not?
Ms. Falardeau-Ramsay: Absolutely. I do not know if you were here when I said it, but amendments are an important way for Parliament to update legislation. However, as we know, in some cases it has taken 15 years to bring in certain amendments. Had the legislation in question been couched in more general terms, perhaps we could have prevented 15 years of discrimination toward certain groups of people.
Senator Beaudoin: Besides, who is responsible for the best example we have in Canadian history, namely the ruling that women could be appointed to the Senate? Not Parliament, but rather the Privy Council, which is a court of justice. Therefore, it is true that courts of law can serve a useful purpose.
[English]
The Chairman: In your vast experience, do you feel that circumstances giving rise to complaints of discrimination on this particular basis fall more within the areas of provincial or federal jurisdiction?
Ms Falardeau-Ramsay: They obviously fall under provincial jurisdiction because you have the question of services, restaurants and that type of thing. However, I think there is a place in the federal jurisdiction for such a ground of discrimination.
Canada should be the leader in those areas. Canada has a good human rights record. We should live up to what we are saying and abide by our international obligations. We should show the way by inscribing into our human rights legislation grounds such as social condition.
The Chairman: Thank you for appearing before the committee today.
Our next witnesses are representatives of the Department of Justice.
Please proceed.
[Translation]
Ms. Elizabeth Sanderson, Senior Counsel, Public Law Policy Section, Policy Sector, Department of Justice: I want to thank you for inviting me here today to speak to Bill S-11 on behalf of the Department of Justice.
[English]
The message I would like to convey from the Minister of Justice is that, while the government supports the good intentions underlying Bill S-11, we believe that its enactment should be postponed pending further study as part of the overall review of the Canadian Human Rights Act.
This indeed is the position adopted by the minister during the passage of Bill S-15, during her appearance here and during the committee hearings before the House of Commons.
I will briefly outline the rationale for this position. There are two aspects to this question. First, why does the department support the principle underlying the bill? Second, why does the department believe that the amendment should be studied as part of the overall review of the Canadian Human Rights Act (CHRA)?
Let us look at the principle underlying the bill. A fundamental concern is that persons should not be subjected to invidious stereotyping because of circumstances beyond their control, whether it be race, sex, the other grounds in the CHRA, or poverty. We, like other Canadians, support this principle.
We also recognize that, historically, the legal system and many other institutions in society have operated in a manner that is detrimental to those at the lowest rungs in society. We would like to see the end of such stereotyping. The issues we wish to study and discuss are whether this bill is the best way to accomplish this or whether it will have other, perhaps unintended, effects.
Poverty intersects with many other grounds of discrimination. We are all too familiar with the term "feminization of poverty." Many of those who rely on social assistance face barriers to their participation in the workforce because of their disability, youth, race, colour, or national or ethnic origin. Under current human rights jurisprudence, this link could be recognized through such concepts as adverse-effect discrimination.
This bill would go further. It would protect persons who suffer discrimination because of their social condition, regardless of whether it is connected to another ground of discrimination. An issue is: just who would be protected by this bill?
Second, why should the addition of social condition be studied as part of the overall review of the CHRA? There are a number of reasons for further study. In general, legislation should be enacted once stakeholders have been consulted. This is an essential part of our policy development and the democratic process of the country. Additionally, it provides a pragmatic opportunity to explore concerns and to attempt to address them. I just add that we have heard some of those concerns before speaking to you now.
When legislation is merely technical, procedural or simply rendering into written form that which has been already recognized by the courts or accepted in other jurisdictions, it is exempt to the principle that consultation is necessary. It seems to us that this is certainly not the case here with respect to either the Charter jurisprudence or provincial legislation.
What is new or unknown about who is covered by this bill? Under Charter jurisprudence, the Supreme Court has not addressed the issue, but several provincial courts have applied its jurisprudence to hold that social assistance is not an analogous ground under section 15. In particular, they have noted that sections 7 and 15 are not guarantees against all forms of economic and social disadvantage, whatever their cause. The courts have looked for links to personal characteristics which are unchangeable, or changeable at great personal cost. Thus, disparate and heterogeneous groups, such as social assistance recipients, have been held not to be covered unless linked to other grounds which have been demonstrated, such as single mothers, elderly or disabled persons.
Many provincial human rights statutes provide protection on a similar ground. However, only Quebec uses the term "social condition." Six other provinces use more specific terms directed more at social assistance recipients. Newfoundland, for example, uses the term "social origin," which is more static and class-based.
Quebec jurisprudence recognizes a fundamental difference between the ground "social condition," the former ground "social origin" and the other protected grounds. Unlike the other grounds, social condition is, by its nature, temporary. We would thus be introducing a new concept into the CHRA. It is uncertain who would be covered by this temporary condition. Quebec jurisprudence emphasizes that the complainant must belong to a socially identifiable group, which has been subject to historically unfavourable treatment based on stereotypes and prejudice.
It is far from clear that the working poor who are temporarily unemployed would be covered under such an interpretation. Yet this is the intent of the proponents of the bill. Is this the best means of accomplishing the goal, and how would the working poor be defined or included for protection?
What is new or unknown about the practices which are covered? Provincial complaints have generally concerned the rental of accommodation, which is of minimal relevance federally. Indeed, in two provinces, Ontario and British Columbia, the protection is limited to this area.
I understand that Senator Cohen and Professor Jackman have emphasized the need for protection against stereotypical assumptions in the delivery of credit-based services provided by non-governmental organizations. These often relate to banking or to areas where service charges are collected after the event, for example, with telephone or cable.
We fully endorse the principle that individuals should not be refused services based on stereotypical perceptions. However, society has progressed beyond the point where such blatant refusals are commonplace, and human rights jurisprudence reflects the subtle and more often unintended nature of discrimination.
Thus, under the adverse-effect theory of discrimination, could it be discriminatory to require a deposit in advance or to impose credit checks? Would those on social assistance and the working poor be protected, but others refused, because of poor credit ratings or insufficient collateral?
Another example of adverse-effect discrimination is in the field of transportation. At present, there are often reduced fares for seniors and disabled persons, who require assistance, generally receive a discount. Would this amendment require a discount to the point of undue hardship for social assistance recipients who cannot afford the standard bus fares?
The final area I wish to address today is social legislation, which by its very nature makes distinctions on the basis of income or employment. For example, would the Income Tax Act be attacked on the basis that the cut-off was too low? For example, social assistance recipients might receive the benefit, but others, who are at a higher level of income that is still below the average, would not.
Similarly, would the Employment Insurance Act or the Canada Pension Plan be challenged on the basis that eligibility is conditional upon employment for specified periods? These are examples of complex legal issues that warrant further study.
Additionally, they raise social and political questions about whether human rights legislation should be used as a form of income protection. While such a goal may be seen as the next step in human rights protection, we think it is such a significant change in the nature of human rights legislation that it should be part of the comprehensive review of the CHRA, rather than an amendment of this nature to an existing act. This review is scheduled to commence this fall after we have completed the necessary steps to implement Bill S-5.
In conclusion, because provincial complaints have focused on the denial of accommodation to social assistance recipients, the issue of the practices that would be covered at the federal level is far from settled. Particularly when combined with the uncertainty in the term "social condition," the effect of this amendment is far from clear.
Of course, we do not expect to be able to precisely foresee and define all the situations that could arise. By its nature, human rights legislation is more generic and is given a broad interpretation by the tribunals and courts benefiting its quasi-constitutional status. However, we believe that consultations are essential to appreciate the goals sought to be served by this amendment, how they relate to our human rights legislation and the best means of fulfilling these goals.
We need to hear from stakeholders, some of the very organizations that are appearing before you today, like the National Anti-Poverty Organization and the Canadian Bankers Association, as well as federal departments, other representatives of private industry and equality-seeking groups, particularly poverty interest groups.
Because of the likely significance of this amendment and the upcoming review, we think that consultation on this issue should be part of this more comprehensive review.
I should like to thank you for the invitation to appear before you today. I would be happy to answer your questions.
Senator Cohen: Thank you for your presentation. I do not have a background in law, nor am I an expert on social conditions. However, I have worked with the stakeholders, whom you must hear more from. I have listened to them for two-and-a-half years. That is what prompted this bill.
I have just a few questions because I want to digest your recommendations in more detail. If you agree in principle, and there is so much doubt about all the areas you mentioned, why is it that Canada signed these international agreements and that now our knuckles are being rapped because we are not delivering on what we signed? As a layperson, that puzzles me, after what the human rights commissioner read to us.
You claim that the poor are seldom discriminated against for basic services. Has that been researched? Are you asking the question because you are aware of the facts? We have researched it and know that it is happening.
Ms Sanderson: I was referring to the case law, which we have studied in the last few weeks while preparing for this. I should be clear: Our thrust over the last year has not been in the area of social condition. It is one of the areas at which we intend to look in much greater depth as we go into the broad review. Our work in the last while has been to ensure that Bill S-5 becomes a reality.
The point I made today relates more to the case law in the provincial jurisdictions. We want to move away from specific individual complaints and move more to a systemic approach to addressing these problems. Individuals must bring their complaints. I do not think I said that they do not have to fight for their services. On the contrary, I believe that I said that we fully support the intention underlying the bill. My point is whether this is the most effective way to achieve your aims.
On the international aspect, my understanding is that Canada supports, and is a signatory to, the UN International Covenant on Economic, Social and Cultural Rights. The issue is how to implement those rights in Canada. We have already done many things in Canada to implement them, including the Canada Pension Plan and employment insurance.
We are respecting our obligations. The issue is how far and how quickly we go. I believe that what I said today continues along those lines. Your thrust is good. The question is whether this is the right way to go about it.
Senator Cohen: The Canada Pension Plan and the other plans about which you spoke are great for a certain segment of the population. However, for people living in poverty on social assistance, they are just programs that they read about in the newspaper. We have used "social condition" and not "receipt of social condition" for the very reason that the working poor would be included.
We want people in poverty to develop a feeling of self-worth through equal treatment. I must say that the Canadian Bankers Association have heard that message, and they are beginning to respond to it.
Although we may not be putting money in their pockets, as my colleague said, the only way to do something about poverty is with dollars. However, before you give them the dollars, you must give them the feeling that they can walk with a little more pride.
This bill is not meant to cover every area. We just want to give them the assurance that if something happens in the banking industry or in the housing sector, they will have a protective blanket. That is the intent of this bill; to protect these people and give them a feeling of self-worth.
Ms Sanderson: I did not intend to give you the impression that the Minister of Justice or the Department of Justice disagrees with that intention. On the contrary, she has expressed her support. I know she supports what I have said here today.
I had hoped to give you a range of areas that require further study, so that we do not have unintended effects that would not help the overall situation. Those were the examples I gave; for instance, looking at the impact on the CPP or the Employment Insurance Act. Those were just examples of the sorts of issues that I think warrant study to ensure that we achieve the goals you are aiming to achieve.
Senator Cohen: I believe that the stakeholders will fear that you may get too specific. When you get too specific, the raison d'être of the bill is lost. In this way, the courts would have much more flexibility to respond. That is my concern. I certainly respect your presentation. I accept it with disappointment.
Would it make a difference if this bill were approved by the upper house?
Ms Sanderson: Any bill that has made it through a level of Parliament definitely has an influence on our work. It means that there has been an expression of support by a very important body. The government would have to consider that when looking at the various options. Obviously, it would have quite an influence.
That would be considered along with the input we have received from equality-seeking groups, as well as the Canadian Bankers Association and other groups. However, the government must decide which final option it will take. I can assure you that if the Senate passed the bill, it would certainly have an influence.
Senator Cohen: I hope you will remain to hear the witnesses from the National Anti-Poverty Organization because they represent many of the stakeholders.
Senator Joyal: I believe that you were in the room when we heard from the Chief Commissioner of the Human Rights Commission. She said she would have recommended that the Human Rights Act be amended with the addition of "social condition."
She seems to be totally satisfied as a practitioner of human rights that this is the wording she would be willing to see in the legislation. You do not seem ready to accept those terms as the ones you would suggest to Parliament.
Ms Sanderson: When we were preparing Bill S-5 or the precursor to it, social condition was one of the issues at which we looked. At that time, it had raised a fair bit of disagreement by various parties. Equality-seeking groups were encouraging us to put it in at that time, and we were hearing quite a different read from other stakeholders.
So as not to delay the important aspects of Bill S-5, we suggested -- and I do not know if everyone agreed -- that we would move the consideration of social condition into the broader review, which is taking place, or starting, in the fall.
On that matter, you heard the commitment of the minister. Our full intention is to move with that commitment in the fall to undertake a broad-based consultation to ensure that we are hearing from all the appropriate people and to ensure that we address some of the issues I have identified.
Have I answered your question, senator?
Senator Joyal: I understand the limits on what you can say to us today.
Senator Beaudoin: One of the reasons that you seem to be opposed to the bill is that you are dealing with work that would be much more comprehensive, if I am not mistaken. In other words, why accept one amendment if, in a few months from now, we may have an omnibus bill that will take care of many other subjects. The problem, as history shows, is that if we are looking for an omnibus bill that is perfect and more comprehensive, chances are that we will never have such a bill. If we are convinced today that social condition means something and is a good thing to include, as the commissioner said, why should we wait? Nothing is perfect. We do that often in the field of legislation. We may even do that in the constitutional field. Sometimes it is good, but sometimes it is bad. If a bill is good and means something, and if you agree to the words "social condition," why not say yes to the bill? Do I understand that you have some reservations about the meaning of those two words?
Ms Sanderson: I think the issue is not so much about whether that is good or bad. I do not think we have sufficiently spoken to the world to ensure that we are heading in the right direction.
The government has not put its mind to this issue. We have not put before the government a variety of options. We heard today that there are a variety of options, something narrower like poverty, or something broader like social condition. These options have not been considered by the government, and I do not think we have heard sufficiently from society as to what the preferences are, so that the government can make an informed decision when it addresses this issue. That is the difficulty we have.
I do not think I have expressed an opinion as to whether the term "social condition" is right, or whether some other words are the right words.
Senator Beaudoin: The question has not matured. We are not in a position to say "yes" or "no," because the debate is just starting. Is that the case?
Ms Sanderson: We do not have the input yet from the government to make an appropriate decision on the range of options on this particular issue.
The Chairman: When do you expect to do that sort of thing? What is the timing? What is your schedule?
Ms Sanderson: This is what I mentioned earlier about the broad review that we intend to undertake in the fall. We are attempting to use resources wisely. We are trying to complete the implementation of Bill S-5 and then have a reasonable start to our consultation process.
I say the fall, but it could be late summer or early fall. However, that is our intention. As soon as we have completed Bill S-5, we will move into looking at the broader review of the Canadian Human Rights Act.
The Chairman: If we are talking about your concern about a piecemeal approach to all this, the approach to this bill is no less piecemeal than Bill S-5.
Ms Sanderson: Bill S-5 dealt with a range of outstanding issues. We had combined issues in the Canadian Human Rights Act with issues in the Criminal Code, and it was a kind of disabilities package. It seemed like an appropriate package to take through Parliament. Then we will go back and deal with the whole range of issues that remain, in terms of modernizing the Canadian Human Rights Act to be efficient and effective for the next century.
Senator Beaudoin: If we have trouble with two words, imagine what trouble we will have with 100 words. We always have that dilemma when we make legislation. If we have a good idea and the piece of legislation is good, we should adopt it. It is one thing to say that we should have an exhaustive review on human rights -- good luck! I doubt it will be before Christmas.
If we cannot make up our minds on two words, and you are bringing in 20 amendments six months from now, it will be quite a debate. Mind you, I like it. I am like a fish in water here. However, the fact is that this committee is here to say "yes" or "no" to the bill, or to amend it, or to pass it or not pass it.
Your argument is that we are not ready to make a decision on social condition. I respect that opinion, of course.
Ms Sanderson: To repeat, the position of the Minister of Justice and the Department of Justice is essentially that we understand and support the thrust of trying to give protection to the lowest rungs of society: those who are poor. However, how do we ensure that we have the right words covering the full area? Have we got the right input to then put to the government the various options that are available, such as social condition and receipt of social assistance? There are a variety of terms. Do we define the term or not? We have heard that debate. There are various things we should consider. Do we limit it to certain areas, as one province limited it to only the provision of services? We should get the proper input and then place the options before the government and the minister so that they can make the appropriate recommendation in a full bill.
Senator Cohen: To the people who have been working in this field and who have been supporting this initiative, and to the hundreds of people who wrote letters to us, I am not surprised that this study is taking place. They said that they have been waiting for over 10 years for a study.
I would ask that the department make some kind of public release so that the people involved in promoting this know that you will do what you are saying, and soon.
Ms Sanderson: I hear you, and we will take the message back to the minister. It is our full intention to carry through with this commitment. That is my understanding. I will ensure that she receives the message.
Senator Moore: Ms Sanderson, you indicated that you would be doing the review this summer or fall. Is that when you would start it, or when it would be completed?
Ms Sanderson: That is when we would start it.
Senator Moore: That is what I was afraid of. Do you see this as being something that would be done internally within your department, or by a committee? What is the intent? Do you have in mind any sort of structure as to how the review would proceed?
Ms Sanderson: No. We have laid out a variety of options that we have considered, including: a purely internal approach; or bringing on some respected individuals in the human rights community who could undertake the consultations for us. It could be the usual release of a discussion paper and, "Please give input by such and such a date." There are a variety of options, but we have not yet had the opportunity to place the options before the minister to determine her preferences because, as I have said, the focus has been on Bill S-5.
Senator Moore: Therefore, you do not have a completion date in mind.
Ms Sanderson: That is right.
Senator Moore: We heard from other witnesses about the actions or lack thereof by Canada, with respect to its commitments to United Nations covenants and so on. Is the department confident that the prohibited grounds of discrimination currently in the CHRA satisfy Canada's international human rights commitments under the international covenants?
Ms Sanderson: That is an interesting question, and you can come at it in various ways, philosophically. I cannot give you a Department of Justice opinion because we do not have one. Before coming here, I did not ask for an opinion that would satisfy that question. As a general comment, I would repeat what I said earlier. Canada has a variety of ways of satisfying its international obligations. One is the Charter itself. Another is the social legislation that we have enacted. Another is the CHRA.
I cannot give you a specific answer as to whether one or another element of the international covenants are met by a specific provision. However, the general policy and approach of the Canadian government is that when we ratify a convention, we meet the obligations. It then becomes a question of degree as to whether we go further down that path in terms of meeting them.
Senator Moore: Our committee is advised that the UN committee on economic, social and cultural rights adopted concluding observations on Canada's second periodic report on articles 10 to 15 of the International Covenant on Economic, Social and Cultural Rights. Would you not agree that the proposed Bill S-11 represents a step toward complying with that covenant and what is expected of Canada?
Ms Sanderson: The point I have been trying to make -- and I am representing the minister's view -- is that we are wanting to look at Bill S-11 the right way to make the step that you are suggesting, senator. Are there other ways, or is this the best way? The government must be able to take the time to get the input and make a decision on a variety of options.
Senator DeWare: You are telling us that the department is not prepared to go ahead and even consider this piece of legislation because you will be reviewing the CHRA in the fall.
We are talking about human rights. We know what has been going on for years. That is no minor project you are undertaking. To have the proper input and come out with a brand-new act would take a long time, possibly two years. I do not think you will disagree with me on that. You are almost saying, "Please do not pass this legislation because we do not want to deal with it. We want to do it our way. We want to open the act and start anew."
Perhaps you must accept this piece of legislation and try to deal with it if the Senate decides it is worthwhile. Certainly, the people feel it is worthwhile, because we have had input and letters from all over, not only now but during Senator Cohen's deliberations on her study on poverty. This is where this all came from. People feel it is needed.
I was also a little disappointed to think that you are saying to us, "We do not want to look at this. Cut it off now, and let's not talk about it any more."
Ms Sanderson: I do not want to leave you with the impression that I am assuming that we will have something quick and dirty. It could be quick and dirty, but I do not think it will be. When you say two years, that is not out of the realm of possibilities for something of this magnitude and importance. I do not know. We have not had the final plan. It then becomes a question of which legislative priority comes first.
Senator DeWare: This may not be it.
Ms Sanderson: I do not want to leave you with the impression that I have been given assurances that it will be fast or slow. We are committed to move on this.
Senator DeWare: At some time.
Ms Sanderson: We are committed to move as soon as we finish implementing Bill S-5.
Senator Moore: I heard you say, Ms Sanderson, that the department will probably do a review and call upon various experts from across the country for input. I do not want to pre-judge what the committee may or may not do with this bill. However, we have had some pretty significant witnesses before us. I do not know who else you would want to have before your review to give you better input. We have had evidence from a whole cross-section of people in society. The initiative started by Senator Cohen at the grassroots level led to this matter getting into bill form before the Senate and has caused some people who are knowledgeable in this area to prepare and give briefs. I do not know that you would get much better interventions than those.
I have some concern, as does Senator DeWare. I do not know that we should be waiting two years to complete this matter. Senator Beaudoin talks about achieving a perfect bill. We know that it is not a perfect world, but sometimes we have to do as best we can and then improve on that, if necessary. We must start somewhere.
Ms Sanderson: I reassure you that we are very much aware of the debate here.
We receive all the evidence that you receive, so it is very much part of our study, as well.
The Chairman: I am glad to hear that.
Senator Cohen: I want to make the point that, if we pass the bill in the Senate and it goes to the House of Commons, the debate could take place on the floor of the House of Commons. Several Liberal MPs have expressed a very big interest in this bill. Rather than wait two years for Justice to study it, it might be a very progressive step to pass the bill, if my colleagues will think about it.
Senator Bryden: In your short brief, you expressed, in a much clearer and more succinct manner, concerns that I have been trying to express around the words "social condition." I do not believe that the full implications have been explored of what "social condition" will be interpreted to mean: what the costs will be in the long run, and who will be affected. You used a term that is helpful to me, and perhaps to other members of the committee. You said that the term "social condition" is fluid. Today, you are unemployed and poor. This time next year, you are employed and have a pretty good lifestyle, so does that then change rights?
I want to make it clear that at least one member of this committee does not agree that it is better to have any law -- even if it is not a very precise and good law -- than to take the time to get the best law that you can, if indeed you are talking about a reasonable period of time. I believe that is the thrust of what the witness has said.
I would also like to say that I fully support the tremendous amount of work that Senator Cohen has done in the area of poverty. It would be nice to have some concrete item happen to prove that it was worthwhile. I do not think, and I do not think Senator Cohen thinks, that the addition of "social condition" to the CHRA is a magic bullet for the poor people of this country. Indeed, I am a little concerned that people might be hanging their hats on that, feeling that somehow this will improve their social condition. I do not know that that is the case.
It strikes me that the most significant part of the international convention is that it lists what all the people in the world are entitled to. They are entitled to the necessities of life. That is what we should be saying: There are minimum standards in society. Canada has approached that in many ways. It is not just in amending the CHRA. Canada does, in fact, have a social safety net: a medicare program, a pension program, an Old Age Security program, social assistance programs, and so on. They are the envy of virtually every other country in the world. That is a manner of complying with those conventions.
We need to do other things. One is to ensure that there is no discrimination that we can identify against certain specified groups. My view is that I would rather take the little bit of extra time that is needed to get as good a law as we reasonably can, as opposed to getting a law that, at this time, we are unsure as to whether it covers all the areas that we want it to cover, or if indeed it covers a whole bunch of areas that we do not want it to cover, or did not expect it to cover.
That was not a question, but if you care to comment, please do so.
Senator Cohen: I want to tell you that I did not expect a magic bullet, Senator Bryden, but it would be a beginning.
With regard to whether it will help people in poorer social condition, you and I will never be able to answer that because we do not live there. The people who do, say, "Yes, it will help." Having said that, if I were guaranteed that the study would take place, maybe I would say, "Let us do it."
Senator Bryden: I want to be clear that there is nothing that I support more in our whole society than that the Senate defend the poor, the children and the people who have nobody to speak for them. With our credibility and the approach that we take, we really are able to work in their best interest.
Senator DeWare: After two years, that new bill may not even include social condition.
Senator Lewis: If this bill were to pass the Senate, the practical effect would be that, while it would go to the Commons, it would not be considered until the fall. We have had much discussion here, and I am sure they will over there. We might be talking about the end of this year, if it was to pass over there, or even the winter of 1998.
The Chairman: That would give the department more time to study it.
We have witnesses now from the National Anti-Poverty Organization. Please proceed.
Mr. Mike Farrell, Acting Executive Director, National Anti-Poverty Organization: Honourable senators, the National Anti-Poverty Organization has been around for about 25 years. We are a national organization representing the interests of low-income people across Canada. We have about 500 group members, as well as individual members. Collectively, we represent thousands of poor people across Canada.
To be on our board, you must either be poor or have experienced poverty at some point in your life. We are fortunate to have one of our board members in town from Calgary, Mr. Fred Robertson.
Mr. Fred Robertson, Board Member, National Anti-Poverty Organization: Honourable senators, I am a member of the Street Speaks committee in Calgary. Street Speaks, as our name implies, is a committee of, by and for homeless, or formerly homeless, Calgarians. We attempt to provide a voice for the homeless citizens of our city and, more importantly, to allow and encourage homeless citizens to speak out on the subject of homelessness.
To that end, on Monday of this week, I was with the Calgary Chamber of Commerce. We developed a seven-minute video of homeless people speaking about homelessness. I have heard a lot about social conditions sitting here. I have heard that the poor are almost by nature included within that group. I have been there myself, so I know what I am talking about. We people are the lowest of the low, economically speaking, in this country.
Many of the individuals you are about to see do not even have social assistance, and cannot qualify for it in my province because they have no place of residence. Without further ado, I would like to let their voices talk to you.
(Videotape played)
I should like to thank you for watching that.
The proposed amendment the to CHRA to add "social condition" as a prohibited ground for discrimination is an important one. It is important to my organization, to our constituencies and to all Canadians.
Given my understanding of poverty and the intent of the proposal, I am glad to support it as it stands. Poverty is both economic and social, and the price system does a pretty good job in discriminating against the poor in terms of access to just about everything: Time, health, work, education, hope, dignity, and even honour appear to be available at a price.
However, the issue here is not poverty itself but, rather, gratuitous discrimination against the poor. Housing and credit are two major areas in which this occurs. A poor individual may be a far better tenant or credit risk than one with higher income, but landlords and lenders are free to ignore the individual's character and refuse service, either subtly or brutally, for reasons of insufficient income. Those of us on the receiving end of this treatment understand what a blatant affront to human dignity this treatment is.
As an example, the numbers of the poor who are simply surplus to production and forced to seek public assistance are routinely characterized as parasites and idlers who expect governments to take care of them. The same characterization seldom holds for those who take money from the public purse as interest, salary, or profit. Welfare slashing and bashing has become a sport for far too many Canadians. Would you want your sister to marry a welfare recipient?
You may say that nothing can be done about this, that it is just political reality. That might be so. Welfare can be slashed, the minimum wage abolished and the poor can be made poorer, which normally makes the rich richer -- at least in the short term. Taxes can be reduced and the "majority" of Canadians made happier. This appears to be the current political reality of political correctness.
We use short-term solutions for what we fool ourselves into believing is a short-term problem. Even a minor student of history -- this country's or any other's -- can tell us the fallacy of this belief. The poor of our country now constitute 15 per cent of our population and our ranks are increasing every decade.
When the poor, in our wisdom, decide to become active voters, not only will social condition become prohibitive grounds for discrimination, but the eradication of poverty itself will become every government's number one priority. Poverty is an injury and discrimination against the poor is an insult. I wish to finish this address with the words of a great anti-poverty activist, James Baldwin, who said:
One day, perhaps, unimaginable generations hence, we will evolve into the knowledge that human beings are more important than real estate and will permit this knowledge to become the ruling principle of our lives. For I do not for an instant doubt, and I will go to my grave believing, that we can build Jerusalem, if we will.
The Chairman: That was a very powerful video presentation. I think we all feel strongly about it.
Senator Beaudoin: Have you considered this bill that is before us? What do you think about it?
Mr. Robertson: It is a good bill. It will help. As I said to Senator Cohen, it will not hurt and it might help. I cannot see where it will do damage. I can see that it will set the groundwork for significant potential good.
Senator Bryden: I live in the country, in New Brunswick. You have shown us the urban situation. I am sure you are very well aware that there is poverty in rural areas, which is often not nearly as visible because it is so far away.
Having said that, a parliamentarian from Toronto believes that there are 150,000 people within the City of Toronto who live in much the same manner as the people depicted in the video. He referred to it as a city within a city. He went on to say that he believed that comparable situations exist in Vancouver, Montreal and other places. Do you agree with that?
Mr. Robertson: Some put the figure at 25,000. We have always had a problem defining homelessness. The definition from the United Nations is so broad that it includes almost everybody and their dog. There are the more literal definitions which say that you must be without a home for 30 days. Some of those people in the video have been without a home 13 years. At least one of them has.
We just finished two-and-a-half years on the Ad Hoc Steering Committee on Homelessness in Calgary to come up with an action plan. We are hoping that the action plan will be implemented.
Within that two-and-a-half year period, our hostels went to 200-per-cent occupancy. In other words, we are cramming people into the existing facilities against fire regulations and everything else. Nonetheless, we are keeping them off the street and from freezing to death.
Even with that 200-per-cent occupancy, we turn away some 40 or 50 people a night. Nobody seems to know where they go. You can understand that, in Calgary, as in most other Canadian cities, it gets down to minus 30 and 40 degrees at night. People freeze to death on city streets in this country in the wintertime. These are citizens of your country, senator.
Senator Bryden: You have been active in this area. Does there appear to have been a dramatic increase in homelessness in the last five to ten years?
Mr. Robertson: Most definitely. For example, we used to have waiting lists of 400 for social housing. The waiting lists are now up to 2,000 in Calgary.
I mentioned the hostels. That has happened probably within the last three to four years. While the Ad Hoc Steering Committee on Homelessness in Calgary has been sitting for the last two years and developing that action plan, the situation has increased by 200 per cent. I feel that it is beginning to increase in every other city in Canada, as well.
Senator DeWare: In Ottawa, I walk home at night around ten o'clock or so. On the corner of Sparks Street, there is a Toronto Dominion automatic bank teller, which is heated. For two or three nights in a row, a street person would lie sleeping on the window sill.
I know some people were concerned about whether they should go into the bank to use the teller while this person was there. As you say, this was probably the only place this street person could find some warmth at minus 35 degree temperatures.
I know there are soup kitchens, hostels and places for some of these people to go. That is not the answer. How do you gradually start to move these people into society again, one by one? How do we do that?
Let us talk about welfare first. If people do not have an address, they cannot go on welfare. Is this there no way that a Salvation Army group or a hostel of some kind could register these people so that they could get started? That would be a start. If they could start to get a welfare cheque, it would give them some self-esteem and start them on the road to slowly work their way back. Is there any way that could happen?
Mr. Robertson: This is happening in the Salvation Army Booth Centre for single men. Their third-floor rooms sleep eight men to a room.
Senator DeWare: What do you have: a cot, blanket and a pillow?
Mr. Robertson: That is correct. There are seven other people in that same room with you. For that, the welfare allowance for a single employable man in Alberta is $162 a month. That cheque is just simply forwarded to the Salvation Army. I have been allowed to stay there. The problem is that that is not the answer either, senator.
The answer to the problem is adequate, accessible, affordable and autonomous housing for low-income people. We have lost that in this country over the past decade and a half. Legislation, such as this, may help us retrieve low-income housing. Canada Mortgage and Housing Corporation built housing at one time. There were problems with it. It is now not being built at all. There is no low-cost housing building in my city, and I suspect that it exists in very few cities across the country.
I was one of the fortunate 2,000 people in Calgary who qualified for subsidized housing, because I am a senior or am becoming a senior. I pay 30 per cent of whatever I make a month for that housing. It is a bachelor apartment in a nice complex. I am relatively happy. However, there are approximately 2,000 to 3,000 people on the streets at the moment who do not have that benefit.
The solution is low-cost housing. The developers say that the government should build it. The government says that the developers should build it. The local governments say that the provincial government should build it. The provincial government says that the federal government should build it. The federal government says the developers should build it. We go in this circle. In the interim, citizens of our country are beginning to freeze to death on the streets of our cities and probably on the farms, too.
Senator DeWare: For two or three years, we have had an organized infrastructure program to make work in this country. Some of the infrastructure programs in small communities have helped to build gyms, rinks, community centres, and so forth.
Perhaps our country should decide that the infrastructure program ought to be engaged in building low-cost housing units. Perhaps the developers, federal government and provincial governments could work together.
We do many thing in this country that are wrong and many that are right. Perhaps with the influence of an organization such as yours, we could make a presentation to the citizens of our country, to say that this is what must happen. We must be concerned about the children out there. How do they go to school? How do they eat? How do they get an education if they do not have an address?
That is not the job of this committee. As you say, perhaps the bill started with an influx of questions asking for answers.
Mr. Robertson: One of the women in the video has two children. Social services has taken them away from her for no other reason than she does not have housing. She works. She makes an income. She works five days a week. She cannot find affordable accommodation. The social worker drops those children off two or three afternoons a week at a community centre for homeless people. She gets the privilege of playing with her own children for about two or three hours. Then they go back and she is back in the hostel that night. The children are in some form of hostel themselves. This is all because the gap between the rich and the poor in this country has become somewhat of an abyss.
The Chairman: Mr. Robertson, I understand from some of the background material received from the Canadian Bankers Association that your association has been working in conjunction with them to help draw up some new national guidelines on access to banking. What was your involvement in that? Have you seen any results?
Mr. Farrell: I will tell you what I know about it. I have been involved for the last year or so. I think some work was done prior to that. The group that was most closely involved is a group from Quebec called Option consommateurs, but the NAPO has also been involved. We have been involved with producing a training video, which I gather will be used as sensitivity training for bank employees, to make them more aware of the issues surrounding poverty and how people are suffering discrimination because of it.
More recently, the banks have made a commitment to improve their service to low-income people. They are in the process of testing that with what is called a "mystery shop." They have hired an outside consultant to send people who appear to be low-income to different bank branches across the country to see if they can get service. I believe that is happening. Perhaps I should not say it; it may be a secret.
I have mixed feelings about it. I have expressed that to the Canadian Bankers Association. I have heard misgivings from my own board about being involved with the Canadian Bankers Association. The misgivings from the board concern whether the NAPO will be used in a public relations sort of scheme where the bankers can claim that we were involved in the project, and therefore had our blessing.
On the other side, I know Options consommateurs has done some of their own testing. The results show that 80 to 90 per cent of the low-income people have been refused service, either to open an account or to cash a cheque. The testing was done occasionally over the last five years, mostly in Quebec. Banks are doing a similar test.
The Chairman: You are saying that 80 or 90 per cent are still being denied access. You do not see any great improvement because of this process?
Mr. Farrell: We do not have the results from this test that the bankers are doing. The last test done by Option consommateurs was perhaps in 1996. Since the bank announced this initiative to accept two pieces of identification, I do not know that other testing has been done by Option consommateurs.
There is another group called the Canadian Community Reinvestment Coalition. They have been quite involved in the banking issue. They did a sort of ad hoc test of five or ten branches in the Ottawa area, including a couple of banks on Sparks Street. I believe it was the TD Bank and the Royal Bank there. They had trouble at every branch they visited.
The Chairman: Do you feel that adding the term "social condition" to the Human Rights Act would help?
Mr. Farrell: I have given this some thought and I have listened carefully to what was said today by both the commissioner of the Human Rights Commission and the officials from the Department of Justice. Certainly, the Department of Justice has some concerns around the terminology and around wanting to do a very good job on the entire CHRA. I can appreciate that.
At the same time, the video that Fred brought here is a small piece of the picture of what is happening in Canada today. I walk down the streets of Ottawa, which used to be a middle-class haven really, and I see 13- and 14-year olds living on the streets. The other day as I left work and went out to my car, there was a car parked beside mine with a family sleeping in it. One window was broken. They had a sheet up over it. There were two parents and two children in the car.
The situation is extremely serious. It is a crisis. I do not understand why we would wait when we have a good piece of legislation. It may not be the best, but it is a good piece of legislation. It is a step in the right direction. It will have a positive impact. We should go ahead with it now and not wait for the Department of Justice to do a review, which they have been promising for a number of years. It has not happened yet.
I am not saying that it will not happen. It may happen in the summer or the fall. It may not happen for another five years. This is a good piece of legislation. Let us move forward with it and implement it.
Senator DeWare: Bills are made to be amended. We can always upgrade it later.
Mr. Robertson: I know a lot of the people in the video because I was a part of making it myself and I have been on and off the streets for the past 14 or 15 years in Calgary. I intend to go back to the folks in that video and tell them that they appeared before a Senate committee. The intent of the bill to some degree is to give the poor a better sense of dignity, and a better sense that they belong to the country and that people are concerned about their condition.
When I tell those folks in the video about this, they will at first say, "Oh, come on." Eventually they will believe me because they trust me and I trust them. Just that alone will help them. Just the idea that they made the video and that, through it, they got to the Senate. These are things that are encompassed in the bill, as I see it. It would give the poor something.
The Chairman: I hope that, some day, it will be more than just a feeling that the government can provide for the poor. I thank you very much for appearing before us.
Our next witnesses will be from the Canadian Bankers Association.
Mr. Alan Young, Vice-President, Policy, Canadian Bankers Association: Honourable senators, we are pleased to be here before the committee today to testify with respect to the bill. We have been concerned for some time by the public perception that the banking industry wilfully discriminates against people of low income, but we did try to rectify some of these misperceptions by writing to the chair of this committee earlier this month and providing some information on the initiatives that we have taken to provide solutions for low-income Canadian access to banking services, such as opening accounts and cashing cheques. I propose to speak for a few minutes this evening about those initiatives. We believe it is important that all Canadians be treated with dignity and with respect, and that persons of low income not be discriminated against.
We have now had an opportunity to undertake some preliminary research and some information gathering as we work toward our industry position on this bill. Our work is ongoing. However, today, I would like to share with you the results of our analysis to date, which we hope will assist you as you deliberate on this bill.
In our May 12 letter to the chair, we included documentation describing the ways in which the banks have made commitments to improve access. The initiatives to implement these commitments include increased and more targeted training and education of bank employees; communication and cooperation with local community groups to work out solutions relating to requirements for opening accounts and cashing government cheques. We also have aids that are targeted at low-income customers, and we have delivered to you today the most recent example. This is just hot off the press. It has not officially been released by the CBA, but because we were appearing before you today, we wanted to ensure that you had it.
This booklet is written in very plain language, and it is intended to provide very basic information about what happens when you go into a bank, how you choose a proper account, and how to use an automated banking machine. It is a how-to booklet to help people become comfortable with banks and the banking system. I encourage the senators to read through this booklet.
What have we said we will do? What commitments have we made?
On February 14, 1997, Canada's banks made a public commitment to improve access for persons of low income. We made changes. We determined that only two pieces of valid identification are required to open an account or to cash a government cheque. Previously it had been a minimum of three. Photo identification is no longer necessary. Employment and a minimum deposit are not required for opening accounts.
The banks have undertaken many initiatives designed to improve the awareness of bank employees. There are over 221,000 bank employees spread across 8,000 branches from coast to coast to coast. How do we inform them and educate them about these new industry commitments to ensure that they are being met?
Mike Farrell mentioned that an employee training video has been developed called "Making a Difference," and we provided a copy to the chair of this committee. If any senators would like a copy of that video, let us know, and we would be delighted to make it available to you.
This training video was distributed to bank branches across the country in early April of this year. It highlights the need for access to basic banking services, the new policy commitments that we have made as an industry, and the role that front-line bank staff play in improving access for low-income customers. As Mike Farrell said, it was produced with guidance and assistance from Option consommateurs and the National Anti-Poverty Organization. Representatives from both these groups appear on our video.
We also have this booklet, "Helping you Bank," and we are also preparing a training module to assist bankers and community groups that work with low-income individuals to introduce them to banking, to help them better understand bank services and how to save costs on bank services. The training module and this booklet have been designed with input from advocacy groups.
We have also been working with various federal government departments to encourage them to have an insert in federal government cheques that go out on a monthly basis to recipients of government assistance. It would inform the recipient about our new cheque cashing and account opening policies. Also, it would be a document that a recipient of a government assistance cheque could take to the bank counter. If they get some sort of resistance, they could show this to the bank teller and say, "This came with my government cheque, and it is stamped with your bank's logo." That would be used as a way to reassert the bank's commitments.
As Mike Farrell indicated, we also commissioned independent research to measure how well we are doing. It is all well and good to make commitments to improve access, but it is important to establish how we are doing in the market-place. Are the 221,000 bankers in the 8,000 branches following through on these industry-wide commitments?
The mystery shoppers are appearing in bank branches starting this week, and they are testing our success in implementing our February 14 commitments. The research is being conducted by the well-known, independent research firm AC Nielsen. We have had input on the research design by Option consommateurs, by the NAPO, by the Task Force on Churches and Corporate Responsibility, and by the Department of Finance. Final results of this survey are to be available in July, and they will be made public so that everyone will have a way to measure whether we are meeting our commitments.
There are other initiatives as well, but they are included in our submission.
It is worth noting that the bill before the senators has a direct bearing on the work of the Task Force on the Future of the Canadian Financial Services Sector, now known as the MacKay task force. This task force was established by Finance Minister Martin in December, 1996 to undertake a comprehensive review and analysis of the role to be played by the financial services sector, as we head into the 21st century. The task force is charged with a full range of issues, but they include the contribution of the financial sector to the best interests of Canadian businesses and consumers, and it includes access to basic services for low-income Canadians.
This is one of the most significant reviews of the financial services sector ever undertaken by the federal government. The task force is expected to report to the government this September.
The Minister of Finance has already committed to having parliamentary hearings, based on the recommendations made by the MacKay task force. Thus, senators and members of Parliament will have the opportunity to address directly through that process the entire question of the role of Canada's banks and other financial institutions in providing service to low-income Canadians.
Turning to the bill before the committee today, I should like to share with you some of the research that we have been compiling on the important question of adding the term "social condition" as a prohibited ground of discrimination under the CHRA.
We have approached the recommended term from the point of view of three questions. We have asked ourselves: What does social condition mean? Is social condition a human right? Should CHRA protection be afforded to social condition? Let me turn to these three questions.
What does "social condition" mean? The term "social condition" is very broad and is inherently lacking in precise definition. Nor does the term have any specific, commonly understood meaning arising from general societal usage.
Social condition can refer to a condition of poverty, as is the intent of those who are putting forward this bill. However, it could also refer to a variety of conditions, such as being wealthy, middle class, or a student, employed or unemployed, or living in a rural area or a city housing complex, and so on.
It can also take into account race, national or ethnic origin, colour, religion, sex, age, family status, sexual orientation, and conviction for which a pardon has been granted, all of which are grounds that are currently protected by the CHRA.
The term "social condition" is so lacking in specificity that it conceivably applies to every member of society, and does so on numerous levels. It would appear not to be directed to protecting the particular group that this bill desires to protect, but potentially applies to everyone.
The Province of Quebec has added this term as a prohibited ground of discrimination. A case law has arisen in Quebec, analyzing the meaning of "social condition," including the use of both objective and subjective elements. I would like to speak about just one case, although we have others.
The difficulty of defining "social condition" was discussed in the case of Fournier v. Poisson in 1980. Judge Bilodeau commented on the difficulty of defining social condition. He stated that social condition can include many of the identified grounds: race, sex, religion, sexual orientation, et cetera, and that each of these could be considered part of the concept of social condition.
The difficulty, however, according to the judge, is establishing judicial norms that do not include everything but that give a realistic idea of where things are. It is necessary to look for the cause-and-effect relationship in each case. As an example, the judge noted that if a bank refuses to grant a loan, it is possible to say that this is discrimination on the basis of poverty or wealth, whereas the real reason might be that the person could not repay the loan.
The analysis by Quebec judges and adjudicators of social condition underlines the fact that it is comprised in part of factors which already exist as protected grounds and, beyond that, consists of variable factors which will differ from situation to situation.
The vagueness of the term gives rise to some concerns. If "social condition" is added as a prohibited ground of discrimination, it becomes a statutory requirement, the violation of which could have serious legal ramifications. Without more precise definition, it will be a difficult law to observe and to interpret.
Is "social condition" a human right? The persons to which the prohibited grounds of discrimination included in the act apply have been recognized as being inherently entitled to human rights protection. A common thread links these grounds together insofar as each of the grounds generally reflects a personal characteristic of an individual which is more or less immutable; that is, which cannot be changed by the choice of the individual except on the basis of generally unacceptable costs.
The analysis for determining what is and what is not a category inherently deserving of human rights protection has been developed by jurisprudence under section 15 of the Canadian Charter of Rights and Freedoms.
Section 15 of the Charter, as you know, requires equal treatment under the law without discrimination and enumerates certain specific grounds. The list of enumerated grounds in section 15 is not a closed one and Canadian courts have recognized that other categories may be entitled to the protection of section 15.
The issue first came before the Supreme Court of Canada in the case of Andrews v. Law Society of British Columbia in 1989, where the court held that citizenship was an analogous ground to the categories listed in section 15 and was therefore entitled to the protection of that section. The court held that the immutability of a person's citizenship was one of the principal similarities to the enumerated grounds that merited the extension of protection.
Mr. Justice La Forest stated:
The characteristic of citizenship is one typically not within the control of the individual and, in this sense, is immutable. Citizenship is, at least temporarily, a characteristic of personhood not alterable by conscious action and in some cases not alterable except on the basis of unacceptable costs.
An important question, therefore, for this committee to consider is whether a person's social condition is an inherent characteristic of that individual and thereby passes the Supreme Court's test of immutability.
Should CHRA protection be afforded to "social condition"? The Canadian Bankers Association recognizes that whether or not social condition may inherently be considered to be a human right, a government may, by legislation, create additional categories of human rights. As outlined above, the category of social condition is so broad that it does not cover any specific disadvantaged group, but potentially covers everyone.
Quebec has enacted protection for social condition. Other provinces which have sought to extend human rights protection to those disadvantaged by impoverished circumstances have done so in a much more specific way.
Several provinces have added "source of income" as a prohibited ground of discrimination. One other, the Province of Saskatchewan, has been more specific in generally prohibiting discrimination against individuals who receive public assistance. The Province of Ontario has prohibited discrimination against people who receive public assistance only in respect of equal treatment with regard to accommodation.
Three provinces and the territories have not yet added any category relating to social condition, source of income or receipt of public assistance as a prohibited ground.
The CBA understands that those who desire this change are not concerned about extending the protections of the CHRA to the wealthy or to the middle class, or to persons who live in rural areas versus those who live in cities, but are concerned with a specific group -- those who are disadvantaged as a consequence of their impoverished living circumstances.
In our view, the category "social condition" is overly broad, if this is the group for whom protection is sought.
We are grateful for the chance to talk to you this evening about the commitments that Canada's banks have made to improve access to banking services by low-income Canadians. We take our commitments to serve low-income Canadians very seriously. We are also pleased to share with you the results of some of the research we have done on social condition. Quite frankly, our work is not finished.
Although we have raised some concerns about the imprecision of the term "social condition," it does not follow necessarily that the banking industry is opposed to taking action in this area. We are still in the process of examining several options that could be used to provide appropriate protection for the particular group at which this initiative is aimed. Those options include the terms "poverty," "source of income," and "the receipt of social assistance," and indeed also includes the term "social condition." We are examining all of these options.
The Task Force on the Future of the Canadian Financial Services Sector will have recommendations on the issue of providing financial services to disadvantaged Canadians. You might wish to consider these recommendations and Parliament's response to them in the context of your review of this bill.
We appreciate your invitation to appear before you today and we hope that our comments have been helpful. Mr. Finlay and I would be happy to answer any questions you may have.
Senator Beaudoin: You ask whether social condition is a fundamental right. I do not think we may raise that point. One fundamental right in our democracy is equality before the law. We must get rid of any form of discrimination on account of sex, religion, et cetera. Then we want to add to that list "social condition." If a person discriminates against another person on account of social condition, it is discrimination, just as it is to discriminate against a person because she is a woman or he is a man.
I have a problem with your question: "Is social condition a fundamental right?" Of course it is not, but it is a form of discrimination.
Could you elaborate on this?
Senator Bryden: Madam Chairman, I have the same problem as Senator Beaudoin. Your statement was: Is social condition a human right? The answer to that is no. Race is not a human right; it is a human condition.
Senator Beaudoin: Sex is not a human right.
Senator Bryden: Speak for yourself. If you take equality before the law, you cannot discriminate because a person is black or because a person is female. This would add social condition as another basis on which you could not discriminate.
Mr. Young: I take the point of both senators. The question we are really asking is: Is it another prohibited ground of discrimination? I agree that would be the more appropriate phrasing of the question. Your points are well taken.
Senator Beaudoin: To me, it makes sense to add to the list "social condition." I understand the concern of Senator Bryden, who says it is a bit vague. Vagueness, for me, is not the end of the world. It is better than nothing. I am ready to accept the bill because of that.
Senator DeWare: I am surprised to hear him say that. He is a constitutional expert.
Senator Bryden: Vagueness keeps him in business.
Senator Beaudoin: You cannot define everything precisely. It is absolutely impossible. A man is a man, a woman is a woman; this is simple.
Are you objecting to the addition of those two words?
Mr. Young: As I said in my opening remarks, we are still working through the industry position on this question. We are looking at alternative language. We understand what the objective is. We understand what Senator Cohen's objectives are, and they are valid ones. We are trying to find the right term to meet what we understand those objectives to be. We are looking in our review at "social condition." It is one of the options, quite clearly. We are also looking at the wordings that other provinces and jurisdictions have used, and that is what is feeding our research and analysis.
It is a work in progress for us, and it will not take us two years to get to the progress. I would say it is a matter of weeks, if I may be so bold.
Mr. Andrew Finlay, Senior Counsel, Employment Law Group, The Bank of Nova Scotia, Canadian Bankers Association: Alan was really just raising questions that have been raised by the courts so far on this issue. There is some very interesting jurisprudence and some good analysis by the courts. A fairly recent decision out of Ontario, in Dunmore v. Ontario (Attorney General), from December 1997, contained an excellent analysis. We are talking about social condition and whether it is a right or a prohibited ground. Is it a characteristic akin to the other grounds of discrimination? That is the question that the courts are asking and struggling with in their decisions. Some of the language we are seeing involves the notion of immutability. We are in a sense echoing and are concerned with the very questions that the courts are raising.
Senator DeWare: When you are planning your program for making loans to low-income people, there must be some guidelines that you are considering as to how low the income level will be and what kind of percentage you will expect to get back. After all, banks do not give loans unless they expect to receive the money back somehow. What range are you talking about for these people on social assistance, or whatever?
What time frame are you looking at to analyse the whole thing? I do not know how you decide whether a project is working. Are you going to give it one year or two years? What kind of time frame will you put on it?
I am not sure what you mean by an enumerated ground in section 15. That is not a phrase with which I am familiar. I know other people are. I would like you to elaborate on that.
Mr. Young: The commitments that we have made cover cashing cheques and opening accounts. They do not cover loans to low-income people. With respect to lending to any customer, the same conditions would apply. They have to meet certain credit checks and there has to be some assurance that the loan will be repaid.
With respect to the commitments we made in February 1997 on cashing cheques and opening accounts, we have been, over the past year, in the process of doing various initiatives to educate bank staff. This is a big job because of the numbers we have to deal with, and we have been taking it seriously. The first "mystery shopper" results will be in by this July, and they will establish the benchmark from which we can measure our improvement the next time. We will be doing this on a regular basis. I do not want to speculate on how well we will do. I would like to believe that we will do extremely well, but I do not know. It will establish the benchmark against which we can measure how we are doing year after year after year. At some point, people will conclude either that we are meeting our commitments and that therefore we can continue in this vein in a self-regulatory way, which is the effort we are undertaking, or that we are not meeting our commitments and that therefore other steps have to be taken.
I must say that this is an issue that I know, through discussions and meetings I have had in connection with the MacKay task force on the future of the Canadian financial sector, that this is a very serious question with which they are grappling. One of the members of the task force is the former executive director of the NAPO.
Senator DeWare: So you are to become customer-friendly?
Mr. Young: That is the name of the game.
Mr. Finlay: With respect to the enumerated grounds question, if you begin from the premise that we discriminate legally every day on the basis of very positive characteristics, discrimination in itself is not illegal. It is to be encouraged in many respects. Discrimination on certain grounds is illegal, and the grounds are typically listed in the relevant legislation, and that is what I refer to when I say "enumerated grounds." They are enumerated characteristics listed in the act.
Senator Bryden: I think we have canvassed the concerns about the scope of the words "social condition." You represent significant economic players in our society. Is any consideration being given to the fact that this huge and extremely wealthy part of our society, like the legal profession, which I was in and still am in, I guess, and the political profession, which I am now in, does not rate high in credibility in public opinion. As banks have become more successful, wealth has been generated dramatically in the last five to 10 years. That credibility, in the opinion of many, has not gotten better, but continues to erode. Ordinary people, not necessarily really poor people, have a difficult time coming to terms with the fact that the president of your bank is paid $4 million or $5 million a year for what he does.
I said that one time and was told that they pay Mark Messier more than that. My answer to that was that if Mark left, he would be missed.
I am also part of the corporate world. I have participated on the boards of major corporations. I have participated in major bank financing on behalf of corporations of which I was president and CEO. I helped to raise millions. Thus, I think I have some understanding of the huge value in this.
In my period of time in dealing with banks, corporate structures and so on, a real concern has developed about corporate governance in this country, not just as it applies to banks, but to forest companies, manufacturing companies -- every one. There is at least the thought that a corporation's directors, duties and responsibilities are not solely to the shareholder. That used to be the fiduciary responsibility. As a director, my job was to make the best profit I could for my shareholder, and damn the torpedoes, since it did not matter who was hurt as you went by. That is changing, in that more and more major corporations are taking it upon themselves to say, "But we are citizens of our community, our country, and of our global community."
I suggest that if you, as an industry, just as we as an institution, really want to improve credibility, and if we really want to make a contribution, then we have to put our capabilities or your product, your money, where our philosophy is.
All the banks expend a large amount of money on public relations and marketing. It is directed to increasing shareholder value. There is a concept in this country, and in developing countries, which for want of a better term, is the provision of mini-loans out of sometimes mini-banks, to people who cannot meet the qualifications for securing even a small loan. I am talking about a loan of $500 or $200. It is questionable whether loans of even those small amounts would ever be paid back.
I think I know why a bank such as the ones you are involved in would not get involved in that as a regular routine of business. Your shareholders would say that you would spend far more money administrating that little budget than you will ever gain in profit.
If you were to take a small part of your public relations and marketing budget and devote $10 million, which is peanuts, to a creative way of providing that sort of almost sustenance beginning support for the persons trying to pull themselves up by their bootstraps, I do not think your shareholders would object. I think they would applaud. It could certainly have a significant impact on the lives of many people. Perhaps you would not administer it yourself, but would set up a structure to do it. You could find a structure, such as the community structure we saw in Calgary, that would provide those sorts of tiny little jump starts.
Is anyone in the banking circles thinking of doing that? Believe me, you have a credibility image that is almost as bad as a lawyer's, for God's sake.
Mr. Young: Thank you for the question, Senator Bryden. You have raised the issue of microcredit in Canada. In fact, bank shareholders have supported the banks' initiatives in recent years to provide microcredit. Several of the major banks provide funds to an organization called the Calmeadow Foundation, which provides loans to micro-enterprises in communities all across Canada.
Also, several of the banks are founding partners in another organization called the Canadian Youth Business Foundation, which is a microloan program aimed at young entrepreneurs to help them create their own businesses.
Last year, and ongoing this year, the CBA is entering a partnership with Agriculture Canada and a number of other federal departments to research microlending in rural Canada.
The banking industry is engaged in a number of initiatives involving the issue of microcredit. It is not a question of deriving sufficient value for shareholders; the banks are already involved in these microcredit programs.
We will be doing more research and undertaking more financial commitments.
Also, community development corporations have emerged in various provinces. I know that Ontario has a number of them. On almost all of the boards of these corporations in Ontario, there is a banker or a retired banker to help provide expertise and to transfer abilities to members of these community development organizations. Steps are being taken.
Senator Bryden: I can only say that I would encourage you to do that. In my view, and I think in the view of many people, you would be increasing the value for your shareholders, not just conceptually or from a public perception point of view. It would be a competitive advantage for a bank to be prepared to devote this small amount of money to this cause and to be seen as a leader in this area. I do not think you can buy that kind of marketing or advertising. If you could just make people aware of it, it would be very helpful.
Mr. Young: The fact is that many of these initiatives have been undertaken in recent years, and few people know about them. Traditionally, the banks have not gone out of their way to say, "We have been doing this. Are we not great?" Most of these initiatives have been done quietly, in partnership with local community organizations.
Senator Bryden: I would suggest that it not be kept quiet. I do not question your motives or your bank's. I believe it is good public relations. I just question whether it is being kept quiet not because you are such humble folk, but because if it is working well, somebody might say, "If $10 million does all that, how much would $50 million do?"
Mr. Young: If it is a money-making venture, I am sure that there would be no trouble in attracting attention.
Senator Bryden: It will be a money-making venture for the multi-billion dollar bank because of what it does for the bank's image in its trading community. You will never make money on those small little areas. It would be a much more satisfactory use of some promotional funds than hiring some expensive ad agency.
The Chairman: You mentioned in your presentation that you had sent me a letter, including documentation in both official languages, which describes what you are doing about improved access, as well as a copy of your training video. I should like senators to know that I make it a point not to see things that are not available and visible to the entire committee. As chairman of the committee, I want to see and hear the same evidence that every member of the committee does, so I have not seen that video.
Mr. Young: As I said, if members would like a copy of it, we would be happy to provide it.
The Chairman: That is for the committee to decide. We will be in touch with you if they want to see it.
You were talking about the definition of "social condition." This is something with which the committee has been struggling. You mentioned the 1980 case in Quebec, where the judge commented on the difficulty of defining "social condition." I understand that the guidelines in Quebec were not drawn up until 1985. The case that you cite predates that. Why is that? Most of the evolving commentary on social condition has occurred in cases since 1985.
Mr. Finlay: The 1980 decision -- that is, if I recall the law that I have read in the last few weeks correctly -- actually serves as the foundation for the analysis done in the late 1980s. The analysis done in the 1980 decision is excellent. It is worth reading, as is Justice Sharpe's recent decision in Ontario. If you take a look at that decision and then look at the guidelines developed in the late 1980s, you would see where the guidelines came from. There is a connection there.
The Chairman: You feel that the evolving guidelines and case law since then have sort of flowed out of this 1980 decision?
Mr. Finlay: In Quebec, the guidelines that were developed in the 1980s flow from that 1980 decision. That is my understanding. The Ontario analysis deals with completely different issues, such as the Charter, immutability, and so on.
The Chairman: If this bill is enacted, what effect do you think the addition of "social condition" to the CHRA will have on your industry?
Mr. Young: That is a very good question. It is part of the analysis that we are undertaking right now as we look at "social condition," "poverty," and other optional terms. That is part of our analysis; however, we do not have a specific answer to provide you today on that.
The Chairman: We are faced with a very specific bill today. We must make a decision very shortly. That is unfortunate.
Thank you very much for appearing before us this evening. I hope we have not been too hard on you.
The committee adjourned.