House of Commons
C-277 – PalliativeCare
The House resumed from May 9 consideration of the motion that Bill C-277, An Act providing for the development of a framework on palliative care in Canada, be read the third time and passed.
CIJA’s contributions to the bill were specifically noted by MP Marilyn Gladu, the bill’s sponsor.
Some hon. members: Agreed.
(Motion agreed to, bill read the third time and passed)
Mr. Matt DeCourcey (Parliamentary Secretary to the Minister of Foreign Affairs, Lib.): Mr. Speaker, speaking of the Middle East, we firmly believe that the only way to achieve lasting peace in the Middle East is through a two-state solution negotiated by the parties.
Wednesday, May 31
C-277 – Palliative Care
Message from the House
The Hon. the Speaker informed the Senate that a message had been received from the House of Commons with Bill C-277, An Act providing for the development of a framework on palliative care in Canada.
(Bill read first time.)
The Hon. the Speaker: Honourable senators, when shall this bill be read the second time?
(On motion of Senator Eaton, bill placed on the Orders of the Day for second reading two days hence.)
Tuesday, May 30
C-16 – Transgender Rights
Hon. Grant Mitchell moved third reading of Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code.
He said: Honourable senators, I rise today to speak at third reading of Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code. By now, it is of course very clear what Bill C-16 is designed to do. We have been debating this issue on the basis of now three bills passed in the House of Commons since 2009. We have heard from dozens of witnesses, held hours and hours of debate in both houses and there has importantly been much debate and evolution of thought amongst Canadians.
For the record, I will once again outline the objectives of the bill. At the legal, technical level, it will do a number of things in support of the rights of transgender and gender diverse people. First, it will add “gender identity” and “gender expression” to the Canadian Human Rights Act to prohibit within federal jurisdiction discrimination against people based upon those two grounds of employment and in the provision of goods, services, facilities and accommodation customarily available to the public.
Second, the bill will also amend the Criminal Code by adding “gender identity” and “gender expression” to the list of identifiable groups protected from hate speech. I should point out that the bar for establishing hate speech is of course extremely high.
Third, Bill C-16 will establish that hatred based upon gender identity or gender expression be considered an aggravating factor in sentencing for a criminal offence.
Passing Bill C-16 will essentially complete the national network of these protections. Already, nine provinces and territories have both these grounds included in their legislation. Yukon is about to do the same. The other three provinces include gender identity.
That’s a recap of the technical elements of the legislation.
Sometimes in a debate about a bill like Bill C-16, it seems that the concepts, the principles, the theories and the intensities of debating them can overwhelm the real-life, real-time impact that the bill’s provisions will actually have on people’s lives. While the technical elements of this bill, those I’ve just listed, are in and of themselves significant, it is what they mean in a human way to trans people and their families that is the most powerful and compelling reason for supporting the bill.
As Melissa Schaettgen, a witness and the mother of Warner, a young trans girl, put it:
For us, this is absolutely key to our children’s future. We are fighting for our children’s lives. It’s not just some bill to us; for us it’s our children’s lives and future.
Bill C-16 provides protections and extends our society’s explicit recognition, respect and embrace of trans people, one of the most vulnerable peoples in our society and a group suffering discrimination, hatred, bullying and violence of an order that most of us cannot even imagine.
The Ontario Human Rights Commission notes the following:
There are, arguably, few groups in our society today who are as disadvantaged and disenfranchised as transgendered community.
In the course of sponsoring this bill and its predecessor, Bill C-279, I have grown to know and admire trans people who are profoundly courageous in the face of unrelenting harm and hurt; parents of trans children who, with every breath they take, literally ache for safety and fulfillment in their children’s lives. In fighting for respect and for protection of their rights, trans people have in turn shown us the way to a better, more equal, more considerate and more just Canadian society. They are asking for the freedom and support to be who they are.
There are a myriad of statistics that quantify the vulnerability, alienation, rejection and harm that trans people suffer. You have heard them throughout this debate. I will list a few again.
In Ontario, the trans unemployment rate hovers at about 20 per cent. The median income is $15,000 a year, despite this group of people being highly educated; 13 per cent of trans people have been fired for being trans; 18 per cent were turned down for jobs for being trans; 20 per cent of trans people have been physically or sexually assaulted; 34 per cent verbally threatened. The stats are even higher for trans youth, 90 per cent of whom are frequently subjected to transphobic comments, even from some teachers. Forty-three per cent of trans people have attempted suicide; 77 per cent have considered it. Trans youth are more than twice as likely as their non-trans counterparts to consider suicide.
But behind these cold, hard statistics are heart-wrenching human stories: trans people whose parents disown them when they come out; grandparents who disown their 10-year-old grandchild; people who lose jobs, homes and live in constant fear; a child who is forced to use a staff washroom in a school, sending the message every time that she is different, that she is trans and being outed to potential bullying and harm each time as a result; a trans woman who has never been allowed to meet her nieces and nephews; trans people who avoid going to hospital emergency departments.
As Dr. Greta Bauer, one of our witnesses, said:
Can you imagine feeling safer outside of the emergency department in a potential emergency?
Trans people who are so terrified of using any public washroom that to quote witness Devon MacFarlane, they hold it or avoid drinking water, resulting in frequent medical problems.
Marni Panas put it so well in her committee testimony in response to a question from Senator Joyal about the worst stereotype she experiences as a trans woman:
. . . it’s about people thinking I’m pretending to be something I’m not, that I’m trying to get away with something, that I’m a fraud, that I’m not who I say I am.
I can assure everyone in this room that somebody does not come out as a transgender woman for privilege. It comes at a great cost.
In the face of this experience, Dr. Kimberley Manning, a committee witness, professor of gender studies and mother of Florence, a young trans girl, writes of the affirmation that this bill conveys:
As a parent I want my child to be seen as who she fully is. I want her to have the dignity that should be afforded to all people who reside in Canada. While I recognize that passing Bill C-16 does not guarantee that my child will be respected, I do know that law has a powerful role to play in changing public consciousness.
Now some arguments have been made against this bill, but it is not evident that they rise to the level of reasons to vote against it. These arguments almost all contemplate hypothetical possibilities that essentially have never materialized where this kind of legislation is already in place, or these arguments are based upon certain misconceptions.
On the other hand, Bill C-16 deals not with hypotheticals debated in the abstract; it deals with protecting and embracing a group of Canadians who daily experience the reality, the hard, real-lived experience of discrimination, bullying, suicide and violence. I’m not saying that the concerns raised should not be considered. I’m saying that if those debates must go on, why would we not at least take steps to protect and recognize trans people who are being hurt and harmed every day while they do?
Let me deal with a few of the concerns. One that’s been raised is freedom of speech, with a subset, compelled speech.
Those who raise a general concern with freedom of speech, alleged implications of Bill C-16, already have significant protections for freedom of speech. Speech is of course a form of expression, yet opposing Bill C-16 would deny trans people protections for their freedom of gender expression. The real beauty of our human rights experience in Canada is that it is not a zero-sum game, and we do not prioritize one person’s freedom of expression over someone else’s. We work it out respectfully and politely, usually with a few pleases and sorrys thrown in, habits of humility for which we are internationally renowned.
Compelled speech is a subset of the broader freedom of speech argument. Nothing in Bill C-16 states that anyone must say anything. Some people raise a concern, quite hypothetical, that they might be forced to use a pronoun that is not consistent with their values. But there is a very respectful resolution to such an impasse, if it were ever to occur: Simply use the person’s first name. Who would not be respectful enough to a colleague, a service provider or an acquaintance not to honour their request to use their first name?
Women’s safety: This argument suggests that somehow a man, hiding behind the provisions of this bill, will dress as a woman to get into women’s washrooms, locker rooms and shelters and then engage in some criminal offence. This is a particularly hurtful argument because it casts all trans people with criminal suspicion.
While not to diminish the everyday risks of violence that women face, trans people, in particular trans women and girls, are at very heightened risk of violence in washrooms and elsewhere. They are terrified of being outed in washrooms.
Excluding trans people from washrooms and other spaces like those will not make these spaces safer. If we want to do that, we should make them safer for all people by installing alarm systems and more privacy features.
Let’s look at actual experience with this kind of legislation in other jurisdictions. Twelve provinces and territories have laws that include gender identity and/or gender expression. There simply has not been an epidemic of men pretending to be transgender in order to commit crimes. But even if there were some cases of this occurring, how could we, in a country that believes so strongly in the rule of law, hold all trans people’s rights hostage to the actions of a very few criminals, which I might add will almost assuredly not include trans people?
It’s important to note the level of support amongst Canadians involved in women’s shelters and women’s safety, including representatives of the following groups which have recently signed an open letter supporting Bill C-16: Women’s Shelters Canada, Ontario Association of Interval & Transition Houses, Violence Against Women Emergency Shelter; Chatham Kent Women’s Centre; St. John’s Status of Women Council; Ottawa Coalition to End Violence Against Women. Canadian women’s shelters have had a long history of helping all women, including trans women, who need shelter and assistance.
There’s also an argument that somehow Bill C-16 will conflict with general human’s rights. Some committee witnesses argued that this bill might do that. In response, Marni Panas made a point that addresses this so well:
. . . when you create a safe environment for one marginalized population, when you improve the experiences for one group of people, society benefits. We up the bar for what we expect from each other.
In response to the suggestion by several witnesses that Bill C-16 might somehow threaten women’s rights, over 1,000 feminists signed a petition in a 24-hour period in support of the bill. They included representatives from shelters and churches, and included women’s studies professors from 12 major Canadian universities spanning the country.
To be sure, rights can and do sometimes bump up against each other, but Canadians and our institutions, courts, commissions, tribunals, support groups and other organizations, are extremely good at meshing and managing them.
For example, the Edmonton Public School Board has established a very successful program of inclusivity for trans and gender-diverse students. The City of Hamilton also recently passed unanimously the protocol for gender identity and gender expression to ensure all their employees feel welcome, safe and included.
Canadians’ ability to do these things, to support human rights in the way we do, makes us a beacon to the world for the fairness, justice and acceptance that people elsewhere admire so much about this country. Any challenges in integrating rights that this bill might possibly bring will be dealt with just as effectively as we have always done.
Bill C-16 will change the lives of trans people and their families. It will extend to them significant protections against losing their jobs, being evicted from the places they live or being refused a place to live, protections against economic discrimination and brutal, ongoing, soul-destroying verbal and physical abuse and violence. And Bill C-16 will also send them an immensely powerful message, a message of embrace and inclusion in this wonderful, accepting Canadian society, the message that in Canada you can be who you are.
As Dr. Manning wrote so eloquently in her submission:
As senators, you have an opportunity to “bend the arc of history.” At this moment of rising anti-Semitism, Islamophobia, racism, sexism, and transphobia, you can offer not just my kid, but all kids in Canada a chance to expand their understanding of and appreciation for the diversity of human experience.
That’s the kind of Canada that we are. I ask you to support Bill C-16.
Hon. Donald Neil Plett: Would Senator Mitchell accept a question?
Senator Mitchell: I certainly would.
Senator Plett: Thank you. Senator Mitchell, you have said here and we have of course heard at committee the amount of abuse that there is in the transgender community. I think you mentioned the suicide rate, and we heard about that at committee. Senator Baker probably at every committee — I don’t want to say every committee — referred to what you referred to in your speech, that all provinces have this legislation. The fact is that this legislation federally really doesn’t — and I don’t want to argue against myself here with this — include a whole lot of areas because most institutions are provincial. Schools, of course, are not federal, except on First Nations reserves, but other than those, the public schools and private schools are all provincial. Most playgrounds and daycares are run provincially. So this would be a small number of people.
Given the fact that provinces all have this provision, why is the suicide rate still where it supposedly is? Of course, when we ask the question of people who testified to this, they didn’t have any stats. Do you have any stats as to what the suicide rate is and why it is continuing? Why is there no progress being made in the suicide rate coming down? It will not affect very many people or very many institutions if Bill C-16 is passed.
Senator Mitchell: Thank you for the question, Senator Plett. The fact is that one feature of this bill covers the whole country. That’s the Criminal Code feature. So it’s not just a little bit of a top-up to provincial legislation. No provincial legislation covers the Criminal Code, so half of this bill is about the Criminal Code and it’s about adding in aggravating elements of a crime so that that crime can be dealt with in a more harsh and definitive way.
The evidence that I’ve received about what this bill will do, and why it will be significant, I’ve received from many sources. But first I will say that this bill finishes the national network. While each of the provinces’ bills is important, this bill is extremely important because it talks about a national sentiment, about a national culture, about a national message shared by all Canadians, that we will do whatever we can do to help trans children, to help trans adults, to help trans parents, to give those trans people and their families the protections and the embrace and the respect that most of us absolutely take for granted every day.
I also hear from trans families that this will save their children’s lives. That’s the evidence that I hear, that this bill will save their children’s lives. That’s why we need to support this bill. It’s extremely important to people’s lives, real time, real lived experiences.
Senator Plett: When we talk about children bullying, I don’t think there’s any law in the world that will prevent children from bullying. I said earlier today that when I was in school I was bullied until I was big enough that there were at least a few people smaller than me, and then I became the bully, so I think children will bully no matter what kind of a law we have in place. I don’t think this will prevent that.
Let me ask you one final question because I will obviously be speaking to this and I will do so very shortly. Senator Mitchell, you talk about all the hypotheticals that people are raising, and clearly they aren’t hypotheticals when professors of universities are threatened with their jobs if they will not use certain pronouns and so on, and the government has said that this is not supposed to compel anyone to say anything, but they have also said they will use the Ontario Human Rights Code, and the Ontario Human Rights Code has clearly come out saying that they do compel.
Let me ask you this question, not whether this will compel people to say anything, but, Senator Mitchell, do you believe that people should be compelled to use a certain pronoun? Please don’t say be respectful and use the person’s name. I don’t disagree with you there. I think that would be the respectful thing to do, but this bill does not say if you use the person’s chosen name that’s acceptable. This bill will require, in my opinion, for me to use a certain pronoun if a transgender individual asks me to use that pronoun. Do you agree that that should be in the law or should this at least exempt people from using pronouns that they are not comfortable with?
Senator Mitchell: There are a lot of questions in there, honourable senators. I’ll start by saying, first, Senator Plett, your premise about the Ontario Human Rights Commission is wrong. In fact, they do not require that people use any particular pronoun. They are very clear when they say generally when in doubt ask a person how they wish to be addressed. That’s what they say.
Out of fundamental decency and respect, which you would offer to your neighbour, you would offer to me most times when you’re not mad at me, the fact is that it will work absolutely fine.
The idea that someone will be forced to use a word is so hypothetical as to not rise to the level of being a reason not to vote for this bill. That is for certain.
Second, I want to mention with respect to the professor you suggested had his job threatened, I’ve read the letter. It wasn’t a threat to his job. However, he had tenure, stature and resources with which to defend his job.
Trans people across this country lose their jobs, their houses, are continually and brutally harassed. And they often don’t have tenure, stature or resources. What this is about is levelling the playing field, accepting and embracing and giving people who are some of the most vulnerable people in this country a fair chance to live a life like you and I take for granted.
Senator Plett: Clearly, Senator Mitchell, you have taken a play out of the Leader of the Government’s playbook with answering your question, so I won’t belabour that. I will answer the questions in due course.
Hon. Raymonde Saint-Germain: Honourable senators, let me start by saying how interesting the debate on Bill C-16 has been so far. Senators have shared many robust arguments, particularly regarding the scope of the proposed measures. Some of our colleagues have skilfully explained the purpose of Bill C-16, which will protect people from discrimination and hate propaganda based on gender identity or expression.
It has been rightly pointed out that most Canadian provinces have already amended their rights and freedoms legislation to add gender identity and gender expression to the list of prohibited grounds of discrimination. Such an amendment to the Canadian Human Rights Act would complete the body of legislation by providing protection against discrimination in areas under federal jurisdiction.
In practice, Bill C-16 brings nothing new to the conception of gender identity or expression. All the bill does is make national anti-discrimination legislation more consistent, while also upholding Canada’s international human rights commitments, especially with respect to trans people. That said, some have concerns about this bill. Concerns and fears expressed by some of our constituents have been raised in the chamber by senators dutifully fulfilling their role as parliamentarians.
There are two main sources of concern: freedom of expression and safety for all.
We should not dismiss these objections out of hand. Naturally, as the former Quebec Ombudsperson, I weigh such considerations carefully. That is why I would like to share my thoughts about them with you, esteemed colleagues.
First, freedom of expression, though an integral part of life in a democracy, does not take precedence over the other Charter rights, nor is it without limits. One of those limits is, of course, hate propaganda. For example, courts have ruled that the expression of virulent criticism or offensive ideas about a particular group is not hate propaganda, and Bill C-16 changes nothing in that regard.
The law also protects good-faith expressions of a religious opinion. Robust legal consensus on this should put to rest the suggestion that we are debating anti-freedom measures. I would like to add, however, that throughout our history, the right of certain groups to be treated the same as all other Canadians has always been the subject of some debate, and that achieving true equality within society is a never-ending struggle for such groups. Since the dawn of Confederation, the rights of women, ethnic and religious minorities, and the homosexual community, to name a few, have been debated in this place.
Bill C-16 is a unique opportunity for us, as senators, to mark another important milestone in the recognition of equal rights in Canada — an opportunity that, we must admit, is long overdue. The statistics and the testimony we heard are clear, and Senator Mitchell made a brilliant reference to this a few minutes ago. Trans people experience great injustices, such as physical and verbal violence, discrimination in public and private services, and more broadly, a lack of recognition of their identity. Unfortunately, trans people currently do not enjoy as many legal protections as other groups. We cannot sincerely claim to be sensitive to their situation unless we take concrete measures to help them. Bill C-16 is a first step in that regard.
The right to safety, particularly for women, is the second objection that we often heard during our consultations. As a woman, a mother, and a former ombudsperson, I am fully aware of that consideration.
We often heard people say that they are apprehensive about the presence of trans people in public restrooms. The fear that people will pretend to have a different gender identity so they can commit criminal acts is very real. In that regard, it is important to remember that, under the rule of law, such behaviour is illegal and is subject to the appropriate sanctions, sanctions provided for in the Criminal Code. The theory that there will be an increased risk of sexual assault in restrooms used by trans people as compared to those whose access is determined on the basis of biological sex is flawed.
It is important to point out that if anyone’s safety is at risk, it is that of transgender individuals. In the United States, 12 per cent of trans people have been the victim of a crime — harassment, or physical or sexual assault — in a public restroom. The addition of hate based on gender identity or gender expression to the list of aggravating factors that are taken into account in sentencing for criminal offences is a response to the violence being committed against the transgender population. Bill C-16 is also a first step in that regard.
Clearly, Bill C-16 will bring about changes within institutions under federal jurisdiction that are subject to the Canadian Human Rights Act. It is true that this will put certain constraints on public services and on some businesses that will have to comply with this new protection.
Are these administrative accommodations too onerous, enough to force us to reconsider passing this bill? I am well aware of the importance of proportionality and the reasonableness of the bill. However, after studying Bill C-16, the objectives of which are awareness, prevention and, when necessary, repression, I don’t think that any of the proposed provisions include any excessive constraints. I have not heard any convincing arguments that show otherwise.
For that reason, I think people need to be very careful if they are going to challenge the fundamental rights of one segment of the population under the singular pretext that this requires accommodation. Likewise, people must not pretend that this bill says something that it doesn’t really say. This is a legislative amendment that will protect Canadians against discrimination based on gender expression and identity in a more uniform manner across the country. I would like to remind the chamber that there is no minority or vulnerable group in Canada that is too small to have access to the same services as the rest of the population from coast to coast to coast. The Canadian government absolutely must recognize transgender rights. In that sense, Bill C-16 is yet another first step.
In closing, I want to recognize all the hard work done by the members of the Senate to understand the reality facing trans people. This subject remains largely misunderstood and, because of the systemic discrimination against them, it is often difficult for trans people to make their voices heard.
Honourable senators, there is one thing that has emerged from the democratic exercise of debating this bill. It is imperative that we engage in more meaningful dialogue with the transgender community. I repeat, Bill C-16 is just a first step, and it must not mean that we stop listening and reaching out.
I would now like to address my fellow citizens of any gender identity and gender expression. I want to tell you that this bill, when it is given Royal Assent, will be a law that recognizes and protects you.
Starting right now, I think that you must take advantage of this outreach and contribute to the hard-won progress being made towards greater understanding and lack of discrimination. You must continue to seize all democratic and peaceful opportunities to make yourselves understood.
The Ottawa Police Service sent all senators a letter inviting us to engage in a dialogue, and I think it behooves us to do so in order that we may better understand the issue and ensure that all public services and all our fellow citizens will be treated respectfully and equally. Honourable senators, for all of these reasons, I will vote in favour of Bill C-16. Thank you.
(On motion of Senator Plett, debate adjourned.)
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