House of Commons
Statements by Members
She was chair of Concordia University’s Board of Governors, chair of Hope & Cope, and member of the board of the Jewish General Hospital and dozens of other organizations.
When I think of the quintessential Montrealer, Quebecker, and Canadian, Lillian comes to mind. She comes from a minority religious and language community yet is respected and viewed as a leader by all.
Delayed Answers to Oral Questions
Neutrality is central to UNRWA’s operations and a condition for many donors, including Canada, to provide funding. UNRWA has assured Global Affairs Canada that it takes the recent allegations against two of its staff members in Gaza very seriously and an independent investigation is underway.
On March 2, 2017, Global Affairs Canada received a letter from the Israeli Ambassador to the United Nations in New York regarding the allegations against these two UNRWA staff members. Canadian officials are closely engaged with both the Government of Israel and UNRWA on this matter. UNRWA officials have communicated to Canadian officials that UNRWA takes any allegations of violations of United Nations neutrality seriously and will act on them as appropriate. Both of the staff members in question are no longer with UNRWA.
With regards to Canada’s contribution to UNRWA, Canada exercises enhanced due diligence for all international assistance funding for Palestinians, including funding for UNRWA. This includes ongoing oversight, regular site visits, a systematic screening process, and strong anti-terrorism provisions in funding agreements.
C-16 – Transgender Rights
Resuming debate on the motion of the Honourable Senator Mitchell, seconded by the Honourable Senator Gagné, for the third reading of Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code.
Hon. Wanda Thomas Bernard: Honourable senators, I stand today in support of Bill C-16 as an ally for the trans community.
I want to first acknowledge our presence on unceded traditional territories of the Algonquin people.
I thank and applaud my colleagues who have spoken so passionately in support of this bill. As a social worker and a social work educator, I have advocated for human rights of all people throughout my career. Trans rights are human rights, and today I am standing up to fight transphobia and violence against this community. Trans people are faced with higher rates of violence and harassment; it is time we stand to protect the rights of trans Canadians.
The discrimination faced by the trans community is not limited to verbal harassment and physical assault, but also systemic discrimination, such as barriers in accessing resources and services. Many trans people have been denied adequate health care, or feel uncomfortable with health care providers who do not have training or awareness of trans issues. Many trans people face difficulty accessing safe and adequate housing, and trans women are often denied access to gendered shelters and spaces. Many trans people avoid public restrooms for fear of their own safety. Trans people are typically underemployed and are more likely to live in poverty. These are just some of the issues faced by the trans community, which have serious impacts on mental health and the well-being of trans individuals.
Trans people have higher rates of mental health concerns, such as anxiety and depression. According to the 2015 Trans PULSE Project, 77 per cent of trans people living in Ontario have considered suicide. This number is alarming. The accumulative impact of discrimination on a trans person’s mental health and well-being is detrimental and is costing lives. It is time to step up to show that all types of transphobia are unacceptable.
Honourable senators, I would like to bring to your attention an aspect of trans issues which has not had as much discussion, and that is the intersection of transphobia and racism. I have described many ways in which trans people face discrimination. However, racialized trans people, especially trans women of colour, are in double jeopardy, as they experience heightened discrimination due to the intersection of racism and transphobia.
According to the Trans PULSE Project, three quarters of trans people and 62 per cent of Aboriginal trans people have experienced racism. The number of racialized trans people who have experienced discrimination when seeking employment, health care or experiencing harassment is due to transphobia amplified by their everyday experiences of racism.
I would like to take a moment to recognize that many of these statistics do not include those many people who do not feel safe enough to be out as transgender, or safe enough to report incidents of violence to the police. This impacts their well-being by unjustly denying them opportunities and creating even more substantial barriers in going about their daily lives.
Honourable senators, I’m speaking up as an ally, as I value trans people and trans lives. I am also advocating for the Black trans community, whose voices are so often erased and whose lives are devalued. It is time we prevent the perpetuation of violence against this disenfranchised and marginalized community. There is a long way to go in achieving equality for the trans community, and passing Bill C-16 is a step in the right direction to show this community they are valued and that we will not stand for transphobia.
As Senator Mitchell stated last week, passing this bill will send a significant message to the community and to the country. I will support this bill and I want to assure all Canadians that trans lives matter.
Some Hon. Senators: Hear, hear!
Hon. Jane Cordy: Senator Bernard, would you be willing to take a question?
Senator Bernard: Yes.
Senator Cordy: Thank you very much. I agree wholeheartedly that this is a human rights issue, but it’s nice to have a social worker stand in this place, with the experience you have both in your work as a social worker and in teaching social workers to go into the community to help those less fortunate.
You spoke about members of the trans community losing their jobs, and there’s evidence of that; there’s evidence of high suicide rates. I agree wholeheartedly that this is a human rights issue, and let’s hope this bill passes quickly before we adjourn for the summer.
Those who are against Bill C-16 often say that girls who go into a women’s washroom are in danger of getting assaulted if there happens to be a trans woman in the washroom. I was on the Human Rights Committee and did research into another private member’s bill that was very similar to this, and I could find no evidence of that. I found that those who are most likely to be assaulted or attacked would be members of the trans community, no matter where they are in society.
Have you done research or found that in your work as a social worker or a senator?
Senator Bernard: Thank you for the question, Senator Cordy. One of the things that I have found as a social worker and a social work educator in the work that I’ve done and that some of my students have done into the issues of restrooms, trans individuals have more experiences with assaults in washrooms, but a lot of those experiences are not documented because people are afraid to come out. They’re afraid to lay charges.
Certainly, many institutions and universities are creating safe single-space washrooms to address this very problem. We don’t have the research to support the arguments that have been made. We certainly have the anecdotal evidence that trans individuals have a horrific experience on most days with something as basic as finding a washroom that’s safe for them to use.
Hon. Yonah Martin (Deputy Leader of the Opposition): Thank you for your impassioned speech. I have a statement regarding what you said about those who do not support the bill are not supporting the trans community or may be against human rights. I am aware that those who may be concerned about this bill are looking at whether or not this bill has in place the protection of rights for all individuals, including the trans community, those who may be affected, whether by free speech or the beliefs that they may hold. But it’s not a vote against trans, but a vote at this time that maybe this is not the right time for our country.
I was talking with the chair of the Canadian Human Rights Tribunal just to see what cases have come before the tribunal, and I was surprised to hear that there were very few cases before them.
Is it that at this time we are hearing about the various cases, and we’ve been dealing with it in our chamber for a number of years, but have you looked at the fact that, at the Canadian level, there are so few cases? And although we feel compelled in this chamber to look at it now, I’m wondering if that is the case across the country in terms of the numbers because there are so few cases at that level.
Senator Bernard: Thank you, senator, for your question. I haven’t personally done research looking at what cases have come through the human rights tribunals. What I do know about human rights and the process of going through a human rights complaint is that it’s incredibly difficult for anyone. If there’s anyone in this room who has actually ever laid a complaint with a Human Rights Commission, they would know how difficult it is. I personally know how much energy, time and commitment it takes to go through a human rights complaint.
One of the things we know that trans individuals face is they’re encumbered by fear — fear of being out. So going through a human rights tribunal means that you have to overcome incredible fear even to get to a place to lay your complaint, especially if you don’t feel you have that support.
Senator Martin: I’m paraphrasing, but I know one of the reasons that the chair gave as to why there may be fewer cases than expected is that the courts are already looking at the protections of people and the word “sex” in the Criminal Code, rather than having “gender expression” or “gender identity.” Regardless of that not being in the code, the word “protection” under “sex” is being interpreted quite broadly so that the protections are there. It was a discussion we had at one point because I was curious as to how many cases went to the Canadian courts.
Another question I wanted to ask you is whether you have looked at some of the things that are happening across the country. In two years’ time of seeing this bill as a private member’s bill and now as a government bill, I have seen incredible changes within my own province in the schools. The schools have washrooms designated for those who don’t want to go into either a female or male-marked washroom, so that schools at that level are already educating and raising awareness. My husband works with at-risk youth and in his school the things they are doing are quite revolutionary and inclusive.
I know we’re looking at this law at the federal level and it’s very symbolic. I understand the debate that has happened and I appreciate what every person has brought to the debate, but the provinces are already putting recognition into place. At the ground level it seems that government should support programs at the provincial level and the change is already happening in the schools. If there are people concerned about the protections of people in general, whether by inserting language —
The Hon. the Speaker: Excuse me; Senator Bernard’s time is about to expire. If you have a question, can you please ask it?
Senator Martin: My question is this: Have you seen changes happening at the community level, in the schools, where that change should be where the focus is and that perhaps federal legislation is something we could look at when we are ready for such a change in our overall criminal system?
Senator Bernard: Yes, I would agree with you that changes are happening on the ground in schools and other institutions, but it has been a very slow process. I believe that passing this federal legislation now will help us even more in all of those spaces. It will help us move forward in a way that will prevent a lot of the health issues that we’re seeing, including the very distressing number of suicides. I believe that having this legislation passed at this time is critical.
Hon. Ratna Omidvar: Would the honourable senator take another question?
The Hon. the Speaker: Senator Bernard, you will have to ask for more time in order to do that. Is leave granted, honourable senators?
Hon. Senators: Agreed.
Senator Omidvar: My question is quite simple and goes to your professional expertise as a social worker. What long-term effects, both mental and physical, have you observed on the effects of discrimination on transgender people?
Senator Bernard: Thank you, senator, for that question. The long-term impacts that I’ve seen are really quite devastating. I can best illustrate that by a story, and that’s a story of one of my students with whom I was working in the past year, a graduate student who works in health. As this student was doing work on the need for better health services for trans individuals, this student was also preparing to attend a funeral for yet another one of their friends, their colleagues, their peers, their co-workers who had committed suicide. As we talked and debriefed the experience, that student went on to tell me many more stories about many people with whom they had worked who had committed suicide because of the detrimental experiences they had had.
It’s not the one or two instances of discrimination, but it’s the cumulative impact. In access to health care, we’re seeing the cumulative impact of the discrimination and the impact that has on health and well-being for trans individuals, and especially trans individuals who are racialized. They’re experiencing that double marginalization with few supports and not really having a place where it’s safe for them to be truly who they are.
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.
(On motion of Senator Martin, debate adjourned.)
Delayed Answers to Oral Questions
(Response to question raised by the Honourable Mobina S. B. Jaffer on March 28, 2017)
The Government remains committed to repealing the problematic elements of Bill C-51, the Anti-Terrorism Act, 2015 as part of achieving the Government’s dual objective of keeping Canadians safe while safeguarding rights and freedoms.
Already, the Government has introduced Bill C-22 to establish a committee of parliamentarians that will scrutinize the work of Canada’s national security and intelligence agencies; created the Passenger Protect Inquiries Office as part of continuing efforts to improve the redress system for the no-fly list; and committed $35 million over five years, with $10 million per year ongoing, to establish an Office of Community Outreach and Counter-Radicalization.
The Government will also be making a number of additional improvements, including better defining rules regarding terrorist propaganda, ensuring that the right to advocate and protest is properly protected, and mandating statutory review of national security legislation.
Moreover, the Government has engaged in unprecedented consultations with key stakeholders, academics, experts and Canadians about national security issues. Consultation topics went beyond the Anti-Terrorism Act, 2015, and included lawful access as well as stakeholder engagement on concerns surrounding the former Bill C-13. As part of the Government’s commitment to openness and transparency, the submissions received are available online at open.canada.ca. The Government is currently analyzing the submissions and advancing policy development in response.
The Government will be releasing a report on the results of the consultations and intends to propose legislative changes in the coming months.
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