Bill S-5: An Act to amend the Canada Evidence Act, the Criminal Code, and the Canadian Human Rights Act (LS298e)

BILL S-5: AN ACT TO AMEND THE CANADA
EVIDENCE ACT, THE CRIMINAL CODE, AND
THE CANADIAN HUMAN RIGHTS ACT

HOUSE OF COMMONS		SENATE
Bill Stage	Date	Bill Stage	Date
First Reading:	2 February 1998	First Reading:	9 October 1997
Second Reading:	11 February 1998	Second Reading:	29 October 1997
Committee Report:	2 April 1998	Committee Report:	4 December 1997
Report Stage:	30 April 1998	Report Stage:	8 December 1997
Third Reading:	30 April 1998	Third Reading:	11 December 1997

Message sent to the Senate: 30 April 1998 Concurrence in House of Commons Amendments: 6 May 1998 Royal Assent: 12 May 1998 Statutes of Canada 1998, c. 9 N.B. Any substantive changes in this Legislative Summary which have been made since the preceding issue are indicated in bold print.

BILL S-5: AN ACT TO AMEND THE CANADA EVIDENCE ACT,
THE CRIMINAL CODE AND THE CANADIAN HUMAN RIGHTS ACT

On 9 October 1997, Bill S-5, An Act to amend the Canada Evidence Act and the Criminal Code in respect of persons with disabilities, to amend the Canadian Human Rights Act in respect of persons with disabilities and other matters and to make consequential amendments to other Acts was tabled by the Leader of the Government in the Senate. The bill had been originally tabled by the former Minister of Justice and Attorney General of Canada, Allan Rock, in the House of Commons in April 1997 as Bill C-98; however, that bill died on the Order Paper with the dissolution of Parliament. Bill S-5 contains a number of proposals to remove barriers to full participation and to ensure the equality rights of persons with disabilities. It also includes some substantive, as well as administrative, changes to the federal human rights Act.

In the description, analysis and commentary portions of this paper, the three pieces of legislation that would be amended by Bill S-5 will be considered individually. These sections of the paper will look at the key changes proposed by the bill and their historical context, along with some analysis and public commentary. First, however, this paper will provide some general background information on the disability and human rights issues covered by the bill.

Today, more than four million people in Canada, representing 16% of the population, have a disability. Unfortunately, Canadians with disabilities continue to experience obstacles to daily living in areas such as employment, training, transportation, communications and housing, where most Canadians take equality for granted.

Legislative reform in the area of disability has been advocated by the disability rights movement for almost two decades now. At the parliamentary level, the issue has been raised in a number of contexts. The former House of Commons Standing Committee on Human Rights and the Status of Persons with Disabilities actively promoted the equality rights of persons with disabilities. In its June 1990 report, A Consensus for Action: The Economic Integration of Disabled Persons, the Committee made such specific recommendations for legislative reform as requiring all federal departments, Crown corporations and agencies to review and, where necessary, reform legislation and regulations to ensure the comprehensive inclusion of persons with disabilities in existing federal programs. In response to this report, the government agreed to undertake a comprehensive review of federal legislation to identify the legislative action required to eliminate barriers to the social and economic integration of persons with disabilities. The government also promised that consultation with the disability community would be an integral part of the review process.

The idea of an omnibus bill that would make simultaneous amendments to a number of pieces of federal legislation in order to address the concerns of Canadians with disabilities was promoted by the disability community in the early 1990s. The goal was to bring federal laws into line with section 15 of the Canadian Charter of Rights and Freedoms, which guarantees the right to equality for persons with mental and physical disabilities. Disability rights organisations were encouraged in their endeavours by the passage of the Americans with Disabilities Act in 1990, a comprehensive bill of civil rights for Americans with disabilities.

In the fall of 1990, the Canadian Disability Rights Council (CDRC), a national legal advocacy group, received a mandate from community groups representing people with disabilities across Canada to undertake an extensive review of how federal legislation discriminates on the basis of disability, through either commission or omission. This process resulted in a submission to the government of specific proposals to rectify offending legislative provisions.(1) In June 1992, Parliament passed Bill C-78, An Act to amend certain Acts with respect to persons with disabilities, which amended six pieces of federal legislation. The government at that time made a commitment to address those CDRC proposals that had not been included in the legislative package (i.e., those pertaining to the Criminal Code and the Canada Evidence Act).

In June 1996, a Federal Task Force on Disability Issues was created to study the federal role in the area of disability. In its report Equal Citizenship for Canadians with Disabilities: The Will to Act, the Task Force recommended that the federal government work with the provinces, the private sector, voluntary organisations and the disability community to establish a pan-Canadian approach to disability issues. It urged the federal government to build disability-related considerations into all mainstream policies and programs and to demonstrate leadership by introducing comprehensive legislation, along with appropriate infrastructure funding and accountability mechanisms. In particular, the report recommended that amendments be made to the Criminal Code and the Canada Evidence Act to improve access to the criminal justice system for persons with disabilities. A call was also made to amend the Canadian Human Rights Act to include a duty to accommodate.

The Canadian Human Rights Act (the Act) was enacted in 1977 to provide an informal and effective process for resolving cases of discrimination in areas of federal jurisdiction. Like most provincial anti-discrimination laws, the Act establishes a specialised system of redress whereby discriminatory actions and attitudes are discouraged by means of persuasion and education, and by ensuring that those who have discriminated will bear the costs of compensating victims. The Act applies to all federal government departments, agencies and Crown corporations, as well as federally regulated businesses and industries (e.g., banking, transportation and communications).

The human rights system essentially operates on a complaint basis; that is, a complaint of discrimination must be lodged with the Canadian Human Rights Commission before the process can go forward. Moreover, the human rights system is self-contained in that there is no direct right to seek damages before the courts for acts of discrimination. The Supreme Court of Canada in the case of Bhadauria v. Board of Governors of Seneca College, [1981] 2 S.C.R. 183 held that the comprehensiveness of human rights legislation, with its administrative and adjudicative components, indicates a clear intention to restrict the enforcement of its discrimination prohibitions to those measures established by the statute itself, rather than to vest any supplementary enforcement responsibility in the courts.

The Canadian Human Rights Commission is the administrative agency responsible for promoting an understanding of, acceptance of and compliance with the Act. An independent body, it is currently made up of one full-time Commissioner (the Chief Commissioner), and four part-time Commissioners, all of whom are Governor in Council appointments. The adjudicative function under the legislation is carried out by human rights tribunals comprising members of a Human Rights Tribunal Panel which is independent of the Commission and whose members are appointed by the Governor in Council. Human rights tribunals conduct formal hearings into complaints of discrimination and have the power to fashion broad remedies to address the unique social problems underlying such complaints.

In the spring of 1986, the federal government announced the launching of a comprehensive review of the Canadian Human Rights Act. The review was described in Toward Equality, the government’s March 1986 response to the House of Commons Sub-committee on Equality Rights, as an examination of the proposals and ideas for amendments essentially arising out of three main sources: 1) Equality Now, the March 1984 Report of the House of Commons Special Committee on Visible Minorities in Canadian Society; 2) Equality For All, the October 1985 Report of the House of Commons Sub-committee on Equality Rights of the Standing Committee on Justice and Legal Affairs; and 3) the annual reports of the Canadian Human Rights Commission. Various interest groups were consulted by the Department of Justice, the ministry responsible for the Human Rights Act, throughout the summer of 1986.

In the Speech from the Throne of 1 October 1986, the government announced its intention to proceed with amendments to the Canadian Human Rights Act. From this time on, successive Ministers of Justice have affirmed the government’s commitment. On 10 December 1992, the former Minister of Justice, the Honourable Kim Campbell, tabled in the House of Commons Bill C-108, An Act to amend the Canadian Human Rights Act and other Acts in consequence thereof. The bill died on the Order Paper, however, with the dissolution of Parliament. In June 1996, during the last session of the 35^th Parliament, one amendment to the Human Rights Act was made (Bill C-33, An Act to amend the Canadian Human Rights Act) to include sexual orientation as a prohibited ground of discrimination. No other legislative action has taken place until now.

The removal of barriers to facilitate equal access to the Canadian justice system has been a longstanding goal of people with disabilities who, it is contended, have for too long been either labelled mentally handicapped or denied methods to assist them to communicate in court. It can be argued that unless the attitudes and statutory provisions excluding the evidence of persons with disabilities are altered, such persons will continue to be targeted as victims and the perpetrators, when held accountable, will continue to challenge the victim’s competency as a defence tactic. Some of the proposals recommended by disability rights advocates are:

There is particular concern about the growing numbers of people with disabilities who are physically and sexually assaulted, but who are unable to obtain the benefits or protection of the criminal justice system. In January 1988, Bill C-15, An Act to amend the Criminal Code and the Canada Evidence Act, was passed to remedy problems experienced by child victims of sexual abuse who seek justice through the criminal courts system. Disability rights activists argue that many of the reforms introduced to protect children are also needed for persons with disabilities. They contend that the changes in Bill C-15, and even in the 1992 disability omnibus bill (refer to Bill C-78 in the Background on Disability Issues portion of this paper, p. 2-3), did not go far enough in this regard. Many of the proposed amendments in Bill S-5 are in response to the above concerns.

Clause 1 of Bill S-5 would replace section 6 of the Canada Evidence Act, which currently allows witnesses who are unable to speak to give evidence by any means that would make it intelligible. Clause 1 would extend this allowance to persons who have difficulty in communicating by reason of any disability. This proposal could require the use of sign language or oral interpreters, assistive listening devices or real-time captioning. According to clause 1, persons with mental disabilities who had been determined by the court to have the capacity to give evidence under section 16 of the Evidence Act, and had difficulty in communicating because of a physical or mental disability, could give evidence by any means the court might order.

Clause 1 would also create new section 6.1 to allow a witness to give evidence as to the identity of an accused either visually, or using any sensory method of identification. Thus the new section would permit the admission into court of voice and touch methods of identifying an accused person. This provision would deal with the difficulties associated with the correct identification of an accused person by someone with a disability. In most cases, victims visually identify the accused first in a line-up and then in the courtroom as part of the evidence; however, persons who are blind or who have low vision are often unable to identify an accused in this manner.

The Canada Evidence Act amendments in Bill S-5 would respond to proposals made by the CDRC in 1991 (see reference to the Canadian Disability Rights Council in the Background on Disability Issues portion of this paper, p. 2). However, the CDRC had also recommended that exceptions to the hearsay rule be considered in order to allow a third party to give evidence instead of the victim, where no other way existed to get the evidence into court. This would address situations where, for example, victims with disabilities are unable to call for help or assist themselves. It is not clear whether the proposed amendments pertaining to persons with mental disabilities would address this issue.

Moreover, in 1991 the CDRC was concerned that there is no provision allowing a person who has difficulty in communicating to give unworn evidence. In other words, the Canada Evidence Act does not permit evidence to be given solely on the basis that the person is able to communicate it. It continues to be argued that persons with disabilities are being discriminated against if the privilege of giving evidence is restricted to those who are able to satisfy the court both that they can communicate their evidence and that they comprehend the nature of an oath, a solemn affirmation or a promise to tell the truth.

With respect to accommodating the communication needs of persons with disabilities, the CDRC had recommended that any legislative amendments must stipulate that the court, not the person with the disability, should bear the cost of accommodation. There is no reference to cost in the bill. Although it appears that the provinces, which are responsible for the administration of justice, have agreed to absorb the costs of witnesses for the prosecution, it is not clear from the bill whether all witness costs would be similarly covered.

The CDRC in 1991 was also concerned about the manner in which communications assistance would be provided. What input, if any, would victims or witnesses with disabilities have in this process? For example, would they have access to a professional interpreter of their choice, or one with whom they felt comfortable?

Finally, the CDRC recommended that the legal process provide judges and juries with information about the needs of witnesses with disabilities. Information ought to be considered relevant and admissible if it could assist the court in understanding the needs of a particular witness, the accommodation required, and the details of any suitable communication methods. The CDRC even recommended that, in conducting an inquiry into the ability of a witness to communicate under section 16 of the Evidence Act, a judge should access appropriate communication assistive services. In its submission to the Senate Standing Committee on Legal and Constitutional Affairs, the Canadian Association of Community Living recommended that the criminal justice system should include standards for the support and accommodation of persons with disabilities. As an example of what it is seeking, the Association cited the protocols for investigating and prosecuting cases involving persons with special communication needs that have been adopted by the provinces of Manitoba and Nova Scotia.

The child sexual abuse provisions of the Criminal Code (section 153) make it an offence for a person in a position of trust or authority to sexually exploit a young person aged 14-18. They also make it an offence for a person to sexually exploit a young person with whom he or she is in a relationship of dependency. Clause 2 of Bill S-5 would apply the same prohibitions in relation to persons with disabilities. It uses the same wording as paragraph (b) of subsection 153(1) to prohibit persons in such relationships from inviting, counselling or inciting a person with a disability to engage, without his or her consent, in behaviour that has a sexual purpose. Clause 2 would not, however, incorporate paragraph (a) of that subsection which prohibits persons in such relationships from touching the body of a person with a disability for a sexual purpose. Presumably this is because these situations would be covered by the general provision of sexual assault. Clause 2 would create a hybrid offence, punishable upon summary conviction for a term of imprisonment not exceeding eighteen months or upon indictment for a term not exceeding five years.

Clause 2 would create a new offence, sexual exploitation of persons with disabilities, that would be separate from the general offence of sexual assault. One issue here is why was this done. It would seem that at least part of the reason for creating a new offence separate from the general offence of sexual assault is that specific recognition of the various ways in which persons with disabilities can be sexually exploited would allow individuals to be held criminally accountable for a much broader range of damaging and sexually intrusive behaviour. As well, this proposed offence would be easily recognisable on a criminal record as being one against persons with disabilities in vulnerable relationships, as opposed to a generic charge of sexual assault.

Contrary to the child sexual abuse provisions in section 153 (where consent to sexual activity is not permitted as a defence), the offence of sexual exploitation of persons with disabilities would recognise consent as a defence. The wording from section 273.1 of the Criminal Code (concerning sexual assault) would be used to define "consent" as "the voluntary agreement of the complainant to engage in the sexual activity in question." The wording in subsection 273.1(2) would also be used to invalidate consent obtained in certain circumstances. Those circumstances set out in the bill would not, however, be intended to be exhaustive. Thus, there would be no consent where the agreement was expressed by someone other than the complainant, where a complainant was incapable of consenting to the activity (i.e. by reason of disability), or where a complainant engaged in the activity by reason of the accused’s abuse of a position of trust or authority. Similarly, there would be no consent where the complainant expressed, by words or conduct, a lack of agreement to engage in the activity or a revocation of agreement to engage in the activity.

It was suggested by a disability organisation during a consideration of section 273.1 when it was proposed in Bill C-49, An Act to amend the Criminal Code (sexual assault), that persons with disabilities might find themselves in positions where it was not possible to give or deny consent for sexual activity by "usual" words or conduct. It was suggested that the concept of communication should be enlarged to mean any method of communication (i.e. words, gestures, conduct or any other means of communication). This concern may be relevant with respect to clause 2 of Bill S-5.

Although the wording of proposed section 153.1(3) is drawn from current section 273.1(2) of the Criminal Code, the words "invites, counsels or incites" had been substituted in paragraph 153.1(3)(c) for "induces" in reference to the invalidation of consent where the accused has abused a position of trust, power or authority. Members of the House of Commons Standing Committee on Justice and Human Rights wondered why this wording change had been made. In order to clarify that an accused must have engaged in some form of urging for there to be an offence, the Committee amended proposed section 153.1(3)(c) by removing the word "invites."

Finally, the wording of subsections (5) and (6) of proposed section 153.1 in clause 2 are also drawn from existing sections of the Criminal Code. Subsection (5) would adopt the wording of section 273.2 which removes the defence of mistaken belief in consent where that belief was based on the accused’s self-induced intoxication or recklessness or wilful blindness. Subsection (6) follows the language of section 265(4) (assault provisions) which requires the judge to instruct a jury presented with a defence of mistaken belief in consent, to consider the presence or absence of reasonable grounds for that belief.

Clauses 4 through 7 of the bill are designed to facilitate the inclusion of persons with disabilities on juries. Clause 4 would permit a juror with a physical disability, who is otherwise qualified to serve as a juror, to be accommodated in order to carry out his or her duties.

Clause 6 of the bill pertains to challenges for cause by the prosecution or an accused. Currently, section 638(1)(e) of the Criminal Code permits a juror to be challenged for elimination from the jury on the basis that he or she is physically unable to carry out properly his or her responsibilities. Clause 6 would amend section 683(1)(e) to prevent disability, in and of itself, from being a barrier to jury service, particularly if the person with the disability had been accommodated and was able to carry out the role of juror. However, disability could be a cause for exclusion where, even with the aid of technical, personal, interpretative or support services, the person was still physically unable to properly perform the responsibilities of a juror. This could happen, for example, in a case where a significant amount of visual evidence was involved and where the potential juror was blind.

Some of the questions arising with respect to these provisions of the bill are how and to what extent accommodation would be carried out in these cases. For example, what limits would be imposed on the requirement to accommodate? What would happen if a potential juror required interpretative services that could not be made readily available due to the remote location of the trial? What input, if any, would persons with disabilities have in this process? Would cost be a factor in determining accommodation and, if so, to what extent? Who would be responsible for paying these costs?

The child sexual abuse provisions of the Criminal Code currently allow complainants under 18 to give evidence of a sexual offence by way of videotape so long as the tape has been made within a reasonable time after the offence was committed and provided that the complainant adopts the contents of the videotape during testimony. The intention behind section 715.1 is to preserve the evidence of children who might not otherwise recall events that took place months or years before and also to remove the need for them to repeat their story many times, both in and out of court. Clause 8 of the bill would allow similar videotaped evidence by persons with disabilities who might have difficulty communicating due to disability.

In fulfilment of a commitment made by the government in Toward Equality, its March 1986 response to the House of Commons Sub-committee on Equality Rights, and in response to the recent Federal Task Force on Disability Issues (see Background on Canadian Human Rights System portion of this paper, p. 3-4), clause 10 of Bill S-5 would incorporate a duty to accommodate into the bona fide occupational and justification defences under section 15 of the Canadian Human Rights Act. Employers and service providers subject to the Act would be required to accommodate persons with disabilities and other groups covered by the Act, except where such accommodation would cause undue hardship. Put another way, a respondent to a complaint of discrimination who had not reasonably accommodated the needs of the individual or group affected by its actions, would be unable to use the bona fide occupational or justification defence unless it could demonstrate that, in accommodating the needs of the complainant, it would have suffered undue hardship.

Clause 10 would limit the factors for assessing undue hardship to those of health, safety and cost. These are the same three factors set out in the Ontario Human Rights Code. As has been done in Ontario in this regard, Bill S-5 would allow the Governor in Council to make regulations prescribing standards for assessing undue hardship. Moreover, the bill would require the Canadian Human Rights Commission to conduct public consultations concerning proposed regulations and to file a report on the results of these consultations with the Minister of Justice. Proposed section 15(7) would, however, allow the Governor in Council to proceed with making regulations six months after their publication in the Canada Gazette, even if the Canadian Human Rights Commission had not filed its report with the Minister.

Some witnesses before the Senate Standing Committee on Legal and Constitutional Affairs questioned allowing the Governor in Council to define the factors for assessing undue hardship under proposed section 15(3). They contended that such a provision would effectively permit the government to establish its own guidelines for compliance with the Canadian Human Rights Act even though it, in fact, is often a respondent to human rights complaints under the legislation. It was suggested that the Canadian Human Rights Commission, given its particular expertise in this area, is better suited than the government to prescribing the standards for assessing undue hardship. In the alternative, it was proposed that standard-setting should evolve through the decisions of human rights tribunals.

Equality-seeking groups also expressed concern that proposed section 15(7) would not guarantee that the Governor in Council, in prescribing undue hardship regulations, would take into account the public consultations conducted by the Canadian Human Rights Commission, particularly if these were not completed within six months. It was recommended that the bill be amended to ensure that such regulations would have to be consistent with the report of the Canadian Human Rights Commission.

The courts in this area have tended to distinguish between direct and indirect forms of discrimination. Direct discrimination is defined as a rule or practice that on its face discriminates on the basis of a prohibited ground (e.g. sex or age). Indirect discrimination, on the other hand, occurs when a rule or practice is neutral in application but has an adverse effect on an individual or group of individuals on the basis of a prohibited ground. Many, including courts and tribunals, have found this distinction to be complex and confusing to the extent that it may not be easy to make in practice. By way of illustration, is a requirement that job applicants be able to drive a car a case of indirect discrimination because the rule is neutral on its face but adversely impacts on persons who are blind? Or, does the rule constitute direct discrimination because the employer must know that it is really prohibiting persons who are blind from applying for the job? What equality-seeking groups find most troubling about distinctions that are made between direct and indirect discrimination is that the standard of judicial scrutiny and the type of remedial relief available seem to turn on how a particular discriminatory practice is classified. Clause 10 of the bill would address all these concerns by eliminating the distinction between direct and indirect, or adverse effect, discrimination. The proposed duty to accommodate requirements would apply, regardless of how the discriminatory practice was categorised.

Clause 10 of the bill would subject the duty to accommodate to the principle of universality of service whereby members of the Canadian Forces must at all times and in any circumstances, regardless of their trade or occupation, be combat-ready. This amendment to the Act would appear to bring the legislation in line with recent case law that recognises all members of the Canadian Forces as first and foremost soldiers. This exception would seem essentially to exempt the Forces from ever having to comply with the duty to accommodate.

One of the more contentious issues surrounding the duty to accommodate is what is meant by "cost" in determining instances of undue hardship. Some equality-seeking groups would prefer not to have any cost factors taken into a consideration of undue hardship. They fear that doing so would create two classes of human rights claimants: those we could afford to treat equally and those we could not. If, however, cost is to be a relevant consideration in assessing undue hardship, then they would like to see it limited to financial cost, as is the case under the Ontario Human Rights Code, or at least that the word "cost" be modified by the word "excessive."

On the other hand, employers and service providers are concerned about a very restrictive interpretation of "undue hardship." They would like other undue hardship factors that have been recognised by the courts added to the bill(3): disruption of the collective agreement, interchangeability of work force and facilities (how easily they can be adapted) and problems of morale among other employees. In terms of costs considerations, they want to ensure that legitimate indirect or unquantifiable costs are taken into account along with concrete and quantifiable costs.

Finally, some equality-seeking groups find the whole notion of accommodation offensive. In their view, notions of accommodation and undue hardship promote a second-class version of rights that is unacceptable. They suggest that the idea that the needs of disadvantaged people are special and must be reasonably accommodated presupposes that there is a norm to which these people must conform or be considered different or "abnormal"; such a person’s needs must be accommodated, but only if they do not cause undue hardship to the accommodator. Moreover, the accommodation approach to achieving equality effectively leaves unchallenged the assumptions, institutions and relationships underlying discriminatory rules. Accommodation permits an employer, for example, to avoid liability for what would otherwise be held to be a discriminatory practice. While accommodation will reduce the effects of the same treatment approach to equality in individual situations, it will not alter the overall systemic impact of certain rules. It has been suggested that a better approach might be to hold employers and service providers under the federal human rights Act to one standard of equality and ask them to justify any deviation from that standard, rather than upholding discriminatory practices and attempting to fit people adversely affected by them into the general practice.

Clause 27 of Bill S-5 would restructure the existing ad-hoc Human Rights Tribunal Panel under the Canadian Human Rights Act. Currently, section 48.1 of the Act creates a panel known as the Human Rights Tribunal Panel, which consists of a President and 43 part-time members appointed by the Governor in Council; the Panel is therefore independent of the Canadian Human Rights Commission.

Bill S-5 would create a permanent, smaller and expert Canadian Human Rights Tribunal composed of a maximum of 15 members including a Chairperson and a Vice-chairperson; temporary members could be appointed to meet workload requirements. Appointments to the Tribunal would be made on the basis of experience, expertise and interest in, and sensitivity to, human rights, as well as with regard to the need for regional representation. The Chairperson, Vice-chairperson and at least two other members of the Tribunal would be required to have certain legal qualifications and, pursuant to proposed section 49(5) of the Act, one of the members with legal training would have to preside over cases involving relationships between the Canadian Human Rights Act and any other Act or regulation.

Currently, the President of the Human Rights Tribunal Panel can be appointed for a three-year term only; however, Bill S-5 would provide that the terms of office of both the Chairperson and Vice-chairperson could extend during good behaviour for as long as seven years. Other members would continue to hold office during good behaviour for terms not exceeding five years. The Chairperson and Vice-chairperson would be appointed as full-time members of the Tribunal, while all others could appointed as either full-time or part-time members. The Chairperson would act as the chief executive officer of the Tribunal, with supervisory responsibility over the work, including the allocation of work among Tribunal members and management of the Tribunal’s internal affairs. Clause 27 contains provisions (proposed sections 48.3) for remedial and disciplinary measures that could be taken against any member of the Tribunal.

Pursuant to clause 27, at any stage after a complaint of discrimination was filed, the Canadian Human Rights Commission could ask the Chairperson of the Canadian Human Rights Tribunal to institute an inquiry into it, where the Commission was satisfied that such action was warranted. The Chairperson would respond by assigning a member of the Tribunal to hear the case; in instances of complex complaints, a three member-panel could be assigned.

Clause 27 would allow the Chairperson to make rules of procedure for tribunal hearings. These rules would cover such things as the summoning of witnesses, the production and service of documents, the introduction of evidence and time limits on hearings and decision-making. They could also deal with the addition of parties and interested persons to the proceedings.

Finally, clause 27 would create new section 52 of the Act to allow tribunal members or panels to take measures to ensure the confidentiality of an inquiry where certain conditions existed; for example, where there was a real or substantial risk that the disclosure of personal information would cause undue hardship to persons involved. Currently, section 52 of the Act provides for public hearings except where the exclusion of certain persons is in the public interest.

Under section 53 of the current Act, if, at the conclusion of its inquiry, a tribunal finds that the complaint has not been substantiated, it must dismiss the matter. Where, however, it is determined that the complaint has been substantiated, the tribunal may make an order against the person found to have engaged or to be engaging in the discriminatory practice. This situation would continue under Bill S-5. Section 57 of the Act would also continue to allow any tribunal order, including those newly added by the bill, to be enforced as an order of the Federal Court of Canada. The bill would repeal sections 55 and 56, thereby eliminating the current review tribunal structure.

Human rights tribunals may make such specialised orders as compensating the victim of discrimination for any lost wages, for the cost of obtaining alternative services or accommodations or for injury to his or her feelings or self-respect. Section 53(3) of the present Act also permits a tribunal to make a special order of compensation where a person is found to have wilfully or recklessly engaged in a discriminatory practice or still to be doing so. Clause 27 of the bill would continue to allow compensation for pain and suffering or for wilful or reckless discrimination; however, it would increase the maximum limit to $20,000 from $5,000. The rationale is that some provincial human rights laws have no limits on how much money can be awarded to a complainant, while others have limits ranging from $2,000 to $10,000. Raising the limit under the Canadian Human Rights Act would ensure that tribunals had enough discretion to award an amount that was fair in the circumstances.

With respect to the issue of hate propaganda, section 13 of the Canadian Human Rights Act makes it a discriminatory practice to use the telephone or any telecommunication undertaking to communicate messages that are likely to expose a person or persons to hatred or contempt because they belong to a group identifiable on the basis of a prohibited ground (i.e. race, or national or ethnic origin). Under section 54 of the Act, a tribunal is currently restricted to cease and desist orders (section 53(2)(a)) where it finds that a complaint under section 13 has been substantiated.

Clause 28 would expand the ordering-making powers of tribunals in these cases. It would allow tribunals to compensate victims specifically identified in the discriminatory communication up to a maximum of $20,000, where the discriminatory practice was found to be or to have been engaged in wilfully or recklessly. The tribunal could also order the communicator to pay a penalty of up to $10,000. In considering whether to order a penalty payment, the tribunal would be required to consider such factors as the nature and gravity of the practice and the wilfulness or intent of the communicator.

Clause 28 is a response to the rising incidence of hate crimes around the world. The government believes that stronger measures are needed to deter individuals and organisations from establishing hate lines. It hopes to accomplish this by allowing victims of such lines to apply for compensation and subjecting offenders to financial penalty.

Witnesses appearing before the Standing Senate Committee on Legal and Constitutional Affairs raised a number of issues concerning the proposed new Canadian Human Rights Tribunal. For example, it was contended that the proposals in Bill S-5 would not go far enough to ensure the independence of the Tribunal from the Canadian Human Rights Commission. Indeed, in her appearance before the Senate Committee, the President of the Human Rights Tribunal Panel stated that over the years there have been numerous challenges to the independence of the Tribunal on a number of bases. For example, challenges have been made to section 27(2) of the Canadian Human Rights Act, which grants the Canadian Human Rights Commission the power to issue guidelines setting out the extent to which, and the manner in which, in the Commission’s opinion, any provision of the Act applies in a particular case. Section 27(3) states that, once issued, Commission guidelines are binding, not only on the Commission itself, but also on any human rights tribunal. It is interesting to note that previously proposed amendments to the Canadian Human Rights Act (Bill C-108, which died on the Order Paper in 1993) would have repealed the binding nature of Commission guidelines in order to ensure the independence of human rights tribunals. The House of Commons Standing Committee on Justice and Human Rights amended clause 20 of Bill S-5 to reflect the reality that, even though section 27 of the Canadian Human Rights Act empowers the Canadian Human Rights Commission to issue guidelines applicable to a particular case, the Commission in practice issues only guidelines that pertain to the general application of the Act.

Another concern brought to the attention of the Senate Committee was with respect to proposed section 48.8(2) of the bill, which would allow the Chairperson of the Tribunal to engage persons with technical or special knowledge to assist or advise members of the Tribunal on any matter. Witnesses were worried about the lack of detail in the bill with respect to the role of these experts and the ability of parties at tribunal hearings to challenge their expertise.

Among other issues, some organisations felt strongly that the Canadian Human Rights Act should require that all tribunal hearings be presided over by a person with legal training. Others were concerned about the proposed removal of the review tribunal process by the bill. One witness even suggested that there should be no legislated ceiling on the amount of tribunal awards, on the grounds that human rights tribunals should be free to assess compensation on a case-by-case basis, having regard to the particular circumstances involved.

Calls have been made as far back as March 1984 (the report of the Special Committee on Visible Minorities in Canadian Society, Equality Now) for amendments to the Canadian Human Rights Act to have the Canadian Human Rights Commission report directly to Parliament. Currently, under section 61 of the Act, the Canadian Human Rights Commission transmits its annual, and any special, reports to the Minister of Justice, who tables them in Parliament.

There are concerns that, since the Commission investigates complaints involving federal government departments, in cases before human rights tribunals it often finds itself in an adversarial position with respect to lawyers from the Department of Justice. Arguably, there is at least a perception of a conflict of interest here, and the Commission itself in its annual reports has repeatedly asked that its independence be enforced through direct accountability to Parliament, as is required of other "watchdogs" of the rights of Canadians, such as the Auditor General and the Privacy Commissioner.

Clause 32 of Bill S-5 would respond to these requests by requiring the Commission to submit all reports to Parliament through the Speakers of both Houses. The clause is also significant in that it would require the new Canadian Human Rights Tribunal to report annually to Parliament on its activities. This would provide some measure of transparency to the tribunal process and serve to ensure that the Tribunal was independent of the Commission.

Clause 16 of the bill would permit the collection of information relating to a prohibited ground of discrimination, provided that this was done as part of the adoption or carrying out of a special program, plan or arrangement. Section 16 of the Canadian Human Rights Act recognizes special programs designed to prevent or reduce disadvantages in employment or the provision of goods and services that are suffered, or likely to be suffered, by a group of individuals on the basis of race, national or ethnic origin, colour, religion, age, sex, marital status or disability. An example of a special program would be an affirmative action plan.

Issues of individual privacy may be of concern with respect to clause 16. It is not clear whether the provisions of the federal Privacy Act would alleviate these concerns, given that this Act applies to the collection, use, disclosure and disposal of personal information only by government and government agencies.

Some equality-seeking groups informed the Standing Senate Committee on Legal and Constitutional Affairs that Bill S-5 fails to address an outstanding inconsistency within the Canadian Human Rights Act whereby, while section 16 lists prohibited grounds of discrimination in relation to the adoption or carrying out of special programs it fails to include all the grounds set out in section 3 of the Act; arguably, the list of prohibited grounds should be consistent throughout the legislation. The Standing Senate Committee could find no persuasive reason why this should not be the case here. It therefore amended clause 16 of Bill S-5, by substituting the specific list of prohibited grounds in section 16 for the general phrase "the prohibited grounds of discrimination," thereby rectifying the omission and ensuring consistency with the provisions of the federal human rights statute. The amendment was subsequently adopted by the Senate as a whole.

Clause 23(2) of the bill would allow complaints of discrimination in the provision of goods and services where there was no identifiable victim. This amendment would serve to bring the treatment of complaints of discrimination in the provision of goods and services under the Canadian Human Rights Act into line with those in relation to employment (see section 40(5)(b) of the Act).

Some service providers, however, are concerned that it might not be appropriate for the Canadian Human Rights Commission to be able to deal with a complaint of discrimination where there was no identifiable victim. They feel that respondents in such cases would not have the full particulars of the case necessary to put forward an appropriate defence. They also claim that in such cases it is difficult to make an actual determination of discrimination, and to assess appropriate responses and remedies. Officials from the Department of Justice have responded by contending that this provision would allow the Canadian Human Rights Commission to deal with cases where a specific victim did not, or was unable to come forward, but where there was evidence that a discriminatory practice was taking place. In other words, this provision would address instances of systemic discrimination. Moreover, while there might indeed be no identifiable complainant in these cases, the victim of the particular policy or practice would still be identifiable.

Currently, under sections 59 and 60 of the Canadian Human Rights Act, it is a summary conviction offence for anyone to threaten, intimidate or discriminate against an individual because that person has made a complaint of discrimination or given evidence or assisted in any way in the initiation or prosecution of a complaint or other proceeding under the Act. To date, however, there have been few retaliation prosecutions, and those launched have generally been unsuccessful. Basically, it is hard to meet the criminal requirements needed to secure a conviction in these cases, for example to prove beyond a reasonable doubt that action was taken against a complainant with the intent to force the abandonment of his or her human rights complaint. Moreover, there is a natural reluctance on the part of the judiciary to convict on this basis, probably because these kinds of threats are not perceived as criminal acts.

Clause 14 of Bill S-5 would make complaint retaliation a discriminatory practice, which would be dealt with under the Act like any other case of discrimination. The idea appears to be that the anti-discrimination system created by the Canadian Human Rights Act would be better suited than the criminal courts to deal with these types of cases.

The possibility of prosecutorial action would remain under the Act, however, in cases of retaliation against witnesses or others who assisted in the investigation or hearing of a complaint pursuant to the legislation. It may be that in such cases the harassment is not based on a prohibited ground of discrimination; rather it is aimed purely at preventing the procedural functioning of the Canadian Human Rights Commission and the new Canadian Human Rights Tribunal.

One witness who appeared before the Standing Senate Committee on Legal and Constitutional Affairs suggested that provision be made to allow for the fast-tracking of retaliation cases where circumstances necessitated a more immediate response than that provided by the ordinary complaint resolution process under the Act.

Under section 48 of the Act, the Canadian Human Rights Commission must approve any pre-hearing settlement reached by the parties to a complaint. The Commission is not bound by any agreement not approved and may continue to deal with the complaint. Clause 26 of the bill would add that an approved settlement could be made an order of the Federal Court of Canada either by the Commission or a party to the settlement. This would ensure that the provisions of an agreement could be enforced in the same manner as any order of the Federal Court. Clause 31(1) of the bill would repeal section 60(1)(a) of the Act (offence and punishment provisions) that makes failure to comply with the terms of an approved settlement an offence.

Under section 60 of the Human Rights Act, anyone who fails to comply with the terms of a Commission-approved settlement, who obstructs a tribunal in carrying out its duties, or contravenes certain statutory prohibitions under the Act is guilty of an offence. Employers, employer associations or employee organisations found guilty are subject to a fine not exceeding $50,000. In all other cases, the fine must not exceed $5,000. Clause 31(3) would subject everyone found guilty of an offence under the Act liable on summary conviction to a fine not exceeding $50,000. This proposed amendment is in keeping with recommendations by the Canadian Human Rights Commission that all employers and service providers be subject to the same fine under the legislation. As well, clause 31(5) would impose a one-year time limitation on the institution of a prosecution for an offence under section 60.

The introduction of such long-awaited amendments to the Canadian Human Rights Act has not been met with the jubilance one might have expected. While many of the amendments are clearly perceived as positive ( i.e. the creation of a permanent Tribunal) most attention seems to be focused on what is missing from the package. Indeed, the same appears to be true of the reaction of the disability community to the proposed amendments to the Canada Evidence Act and the Criminal Code.

With respect to the Canadian Human Rights Act, there is regret that the bill does not deal, for example, with the addition of new grounds of discrimination (i.e. poverty) or with the mandatory retirement provisions in section 15(c) of the Act. As well, there continue to be calls for amendments to expand the jurisdiction of the Canadian Human Rights Commission to deal with the dissemination of hate messages in any form (i.e. telephone, mail, radio), whether exported or imported. There are also recommendations that the Act be updated to respond to the transmission of hate messages through emerging technologies, such as the internet, and that "Holocaust denial" be specifically defined as constituting hate propaganda under the Act. The application of the Canadian Human Rights Act to the federal Indian Act (s.67) and to the Parliament of Canada are still outstanding issues, as is the question of the power of the Canadian Human Rights Commission to deal with systemic discrimination.

What is sought, both by those in favour of the current Canadian Human Rights Act, and those against it, is a comprehensive assessment of the existing federal human rights system’s ability to promote and protect human rights into the next century. Realization of this goal was promised by the current Minister of Justice, Anne McLellan, when Bill S-5 was first tabled.

(1) Rosalind Currie, Legislative Reform for People With Disabilities... Proposals for Change…An Act to Implement the Equality Rights of Persons with Disabilities, 1991, Canadian Disability Rights Council, Winnipeg, 1991.

(2) Equal Citizenship for Canadians with Disabilities: The Will To Act, Report of the Federal Task Force on Disability Issues, 1996, p. 45.

(3) See the Supreme Court of Canada decision in Alberta Human Rights Commission v. Central Alberta Dairy Pool, [1990] 2 S.C.R. 489.