Third reading of Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal CodePublished on 6 June 2017 Hansard and Statements by Senator Mobina Jaffer
Hon. Mobina S. B. Jaffer:
Honourable senators, I too rise to speak in favour of Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code.
The bill amends the Canadian Human Rights Act to add the terms “gender identity” and “gender expression” to the list of prohibited grounds of discrimination. The enactment also amends the Criminal Code to extend the protection against hate propaganda set out in that act to any section of the public that is distinguished by gender identity or expression and to clearly set out the evidence that an offence was motivated by bias, prejudice or hate based on gender identity or expression constitutes an aggravating circumstance that a court must take into consideration when it imposes a sentence.
Honourable senators, I don’t need to remind this chamber about the suffering trans people in this country have endured in the past years. You have heard from the sponsor of the bill, Senator Mitchell, and many other senators. They have all spoken eloquently and I will try not to repeat what they have related to you.
Now I want to speak to you as a grandmother. To me, my two precious grandchildren are the real reason I keep fighting for this bill. I want to be part of creating a society that will be inclusive of all. Let me start with sharing with you what I observed during the hearings of Bill C-16 at the Standing Senate Committee on Legal and Constitutional Affairs.
In all my years as a senator, I have never seen any committee hearing having so many young children in the room at the time of its hearings. When I looked around the room, I saw young boys smartly dressed and they took in all that was being said about them. Then I saw young girls dressed in beautiful pink dresses with ribbons and full of innocence, yet very much impacted by what we were saying. All I could do at most hearings is stare at the young girls and boys and feel pain. Honourable senators, there were many times when I had to leave the room and not continue hearing. I could not keep seeing these young children.
I kept feeling that for too long we have disappointed these young children and that every day we wait to support these young children their pain continues. I could feel their pain and also felt embarrassed that these young children had yet again come to our committee.
For many years, we have seen young children come to our committee. I could feel their pain, as I know what it is like to be different.
Honourable senators, at my age, I discussed with my staff whether I really need to repeat what I’m just going to say. Isn’t it now time for me just to retire and leave it for a younger senator in this place to share some of the things that I have said? But that time is yet to come, so I’m taking a risk today and saying to you what it is like to be different.
All my life I have been different, whether it’s been in Uganda or in Canada. Now, as an adult, I have better coping skills.
When I was young, I first wanted to be white and not brown. I was sure that if I was white, I would fit in and not be bullied. I was convinced that if I became white and removed my brownness, all of my problems would be solved.
One day, my mother caught me trying to bleach my face. To this day, I remember the tears running down my mother’s face. My mother hardly ever cried in her life, but I can still feel the warmth of her hug and how she was trying to protect me from what was happening around me. She always used to instill in me to be proud of my brownness and wanted me to be proud of who I was, but I would look into my mother’s eyes and say, “But you don’t go into that classroom; you don’t know what it is like to be different.” I desperately wanted to be friends with my friends who were white. I did not want to be different.
Honourable senators, these trans children also want to be treated equally. They also wish to be respected and accepted for who they are. They come to us and ask that we give them the tools. It’s not that tomorrow, when the bill passes, everything will be rosy for them, but we give them the tools with which they can fight for their rights.
Why am I sharing this very personal thing about myself? It is because I have seen, over the years, that my grandchildren are no longer different in Vancouver. My grandchildren are integrated in the schools in Vancouver. They are no longer different, because others fought that fight. That is why I say to you that this is a very important step. It won’t finish everything for these children, but it is an important step.
I have decided to go the legal route because I would like to remind the chamber how many times these children have come to us. In July 2012, Bill C-304 amended the Canadian Human Rights Act by entirely repealing section 13 of the act, commonly referred to as the hate speech provision. That section stated that the person or group who engages in repeated communications through telecommunication facilities that would likely expose a person to hatred or contempt based on a prohibited ground of discrimination is engaging in discriminatory practices.
According to Shelina Ali, a lawyer and columnist, the government felt at the time that this provision limited freedom of expression, despite a clear decision by the Supreme Court of Canada in Canada v. Taylor that the section supported the aim of restricting activities antithetical to the promotion of equality and tolerance in society, which meant these limits on freedom of expression were constitutional.
Further, in November 2013, the previous government passed Bill C-13, amending the Criminal Code to criminalize the inciting of violence against an identifiable group based on sex, age and mental and physical disability. Unfortunately, transgender individuals were not included as part of the legislation as a protected group.
Then, in 2015, the House of Commons passed Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code.
The purpose of the bill was to protect the rights, physical integrity, and psychological well-being of transgender individuals and to affirm and recognize the importance of the discrimination they are subjected to in our society. Unfortunately, as you know, the bill died on the Order Paper.
These bills all have one thing in common. They failed to protect the fundamental rights of transgender people. That is why it is high time we remedied the situation and passed the bill before us now.
Bill C-16 was introduced in the House of Commons by the Minister of Justice last year. As it is now at third reading in the Senate, I would like to take this opportunity to respond to the concerns that some of my colleagues have raised.
The first concern raised is that the rights of trans people are already protected by the Canadian Human Rights Commission as they qualify as an identifiable group under gender identity. To answer this concern, let me quote the Minister of Justice:
The Canadian Human Rights Act already provides some protections for trans persons. . . . However, it is not enough to leave the law as it is.
All Canadians should be able to turn to our fundamental laws, like the Canadian Human Rights Act and the Criminal Code, and see their rights and obligations spelled out clearly and explicitly. Trans and gender-diverse people who feel they have been discriminated against should not have to become experts in legal interpretation and human rights jurisprudence in order to advocate for their basic rights.
I would like to add that the Canadian Human Rights Commission and Canadian courts have come up with a temporary solution to protect the rights of transgender individuals because those rights were not explicitly protected by the law. The fact that the commission and the courts decided to include transgender individuals under the gender-identity umbrella proves that the transgender community is not protected under our existing laws.
It is up to legislators to protect them, and it is up to all of us, honourable senators, to ensure that their rights are not only protected, but explicitly set out in our laws.
The second concern brought before us is the limitation of freedom of speech. First, it is essential to distinguish between the amendments to the hate propaganda provisions in the Criminal Code and the amendments to the Canadian Human Rights Act. As the Minister of Justice said before our committee:
The Criminal Code’s hate propaganda provisions target extreme and dangerous speech that advocates genocide against an identifiable group, willfully promotes hatred against an identifiable group or incites hatred against an identifiable group in a public place likely to cause a breach of peace.
The Supreme Court of Canada ruled in the 1990 case of R. v. Keegstra that the offence of willfully promoting hatred against an identifiable group in subsection 319(2) of the Criminal Code was a demonstrably justifiable limit on the freedom of expression. The court ruled that hatred meant only the most intense form of dislike.
Regarding the Canadian Human Rights Act, the minister added that it:
. . . is concerned with protecting . . . equal access to goods, services and employment in the federally regulated sector.
It is not concerned with regulating the expression of one’s belief generally. The Canadian Human Rights Act does not legislate particular modes of speech.
To be clear, these amendments will not create any specific rules about the use of gendered pronouns. The minister added that what the Canadian Human Rights Act does is to prohibit discriminatory practices, including harassment of employees and customers within the context of employment and other businesses within the federal jurisdiction.
Harassment involves speech or conduct that is persistent and serious enough to create a hostile or poisonous environment. If a reasonable person in the same circumstances would perceive the speech to be injurious, humiliating or an insult to their dignity, then this could be considered harassment.
When asked in committee if this bill would specifically limit freedom of expression, the Deputy Minister of Justice answered:
To the extent that the intention of the speaker is that the violence or hatred should be subjected to people because they dress differently, wear earrings or other forms of what would be seen by some to be non-traditional gender expression, and the expression is so violent and extreme that it might fall within the prohibition, we would expect the court to treat that seriously. . . .
. . . I would note there are a variety of religious expressions. People choose to live their religion and express it publicly in very different ways, yet we have recognized that expressions of hatred against particular religious groups, notwithstanding diversity of ways people live with their religion, has been found to be constitutional. I would think the same thing would happen here. . . .
Finally, senators, on a constitutional level, many feel that this bill would not pass the Charter test. To answer these concerns, the Minister of Justice tabled a statement of potential Charter impacts before our committee. In her statement, I quote:
The Supreme Court of Canada has upheld the prohibition against willful promotion of hatred as a justifiable limitation of freedom of expression in R v. Keegstra.
May I have five minutes, please?
Hon. Claudette Tardif (The Hon. the Acting Speaker): Is leave granted for additional time, honourable senators?
Hon. Senators: Agreed.
Senator Jaffer: I will continue:
The government’s position that the addition of gender identity or expression to the grounds on which hate propaganda is prohibited would be justifiable limitation of section 2 (b). Transgender and other gender diverse persons are vulnerable to discrimination, harassment and violence and deserve society’s protection against expression that is particularly extreme and harmful.
The limitation would be justified considering the narrow breadth of expression that would be criminalized, the distance of such expression from the core values for which expression of freedom is constitutionally guaranteed and the vulnerability of persons who would be protected by the amendment.
Honourable senators, I began by speaking about the children, and I would like to end with all of you considering this bill to be about our children. I would like you to consider what effect this bill will have on our children.
Our children, as we saw in the committee hearings, are hurting. Their parents related to us their pain. So, colleagues who have brought up issues such as the use of bathrooms, use of pronouns, issues of religion, I humbly urge you to vote for this bill. The time is now.
I purposely set out a legal argument because all of the other arguments have been done, for you to reflect on what is being said.
I want you to genuinely — and I humbly ask you to — take the time today to hear the pain of the children, to hear the voices of the children, to hear the plea of the children. The time is now. Please vote for this bill today.