JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, March 17, 1998

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[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): We're back and we're still dealing with Bill S-5, an act to amend various statutes with respect to persons with disabilities and other matters.

We have today, from the Canadian Association of Community Living, Raffath Sayeed, who is the president; Diane Richler, who's vice-president, and Gail St-Croix, who is the chair of the self advocate advisory committee. I welcome all of you. I've spent lots of time with some of you before, so welcome back.

Mr. Raffath Sayeed (President, Canadian Association of Community Living): Thank you, Madam Chairperson. We appreciate the opportunity of presenting before you.

I'd like to reintroduce ourselves. We are an association representing about 40,000 people in every province and territory in this country. We have 400 local associations, and I for one am very proud to be president for the next few years and appreciate the opportunity. I will be introducing Gail more formally and you know Diane.

Events of last week in Alberta make our presentation all the more important and all the more relevant to you, the leaders of our country, who have been responsible in the past for providing the glue that kept our country together. I hope to be forgiven when I say the glue is getting a little old and we probably need new leadership to keep our country together and keep the agenda of the most vulnerable people in our society in front of you.

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As the father of two children with disabilities— and I must say that I got involved in this movement when I was single, as a community advocate, and perhaps there was some divine intervention somewhere that gave me one child and then another, one with a little bit more of a challenge than the third one— as an ordinary person, a family practitioner practising in Lloydminster, small-town Alberta and Saskatchewan, I am in touch with what's happening in small-town Canada. I know I'm dressed a little formally, but I guess that goes with making a good presentation. I would rather have come here in a sweater and spoken to you like many of my colleagues do.

With the events of last week in Alberta, it's hard to express the sense of fear that came upon me, so much so that my wife, who was coming back from Red Deer, Alberta, phoned me on the cell phone and said “Do you know what has happened in Alberta? The notwithstanding clause is going to be used against people with disabilities.”

But fortunately there was a public outcry, and people rose to the occasion and realized that in Canada there is no price for democracy, that democracy as we all know it needs to include the most vulnerable people in our society as well as the strongest. The public in Alberta squelched that affront to democracy within 12 hours.

It highlights how vulnerable the rights of people are in our country today. It highlights how fragile democracy is. I'm reminded of John F. Kennedy when he said, in his inaugural address, that the rights of man come not from the generosity of the state but from the hand of God. I'd like to remind my fellow Canadians of that.

As president of CACL, my concern regarding actions that were proposed went beyond the specific compensation issues of individuals who were victimized in Alberta institutions. The Alberta government's responsibility for the atrocities that were committed in its institutions is undeniable. However, it was the attempt to restrict people who have a disability from access to these rights as outlined in the Charter of Rights and Freedoms that was reprehensible and struck fear in me and other Canadians who have a disability, and their families.

As the Prime Minister noted in his speech to business leaders in New York a few weeks ago, the strength and stability of our economy depends not only on our fiscal restraint but also on the strength of our social and political structures. A week later, the bill and the notwithstanding clause was introduced in Alberta. Premier Klein would have contributed to the dismantling of our national and social infrastructure. It is the very strength of our federation that was at risk last week.

If the charter cannot provide protection for people who have a disability and others who have been marginalized, the very fabric of our society will be undermined. While the charter provides judicial recourse for people who have had their rights infringed upon, it is also fundamental as an expression of our collective values as a society. To suggest that the rights outlined in the charter can be dismissed for reasons of cost undermines the very core principles that define us as a nation. It undermines democracy. It undermines the premise of democracy that is the inclusion of all people.

Those events reinforced for me the fact that the human rights of people who have a disability are very fragile, and more importantly, it provided indisputable evidence that Canadians not only value their rights and freedoms, which are entrenched in our charter, they view them as unalienable rights. That the outcry came from our population as a whole, not just from those who have a family member with a disability, spoke volumes about the fact that we as a society believe human rights cannot be measured in cost.

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Sometimes I cringe when people call us a special interest group. We, who advocate on behalf of people with disability, on behalf of equity in Canadian society, are not special interest. I liken it to the difference between people asking for champagne when we're asking for water. That's the difference.

So I'd like to put that on the table. It really upsets me and upsets my association when we're called a special interest group.

The message Albertans sent to their government and the governments across this country was that they expect those rights to be protected and promoted by all governments. I've lived in Canada for 24 years, and I've been involved in just about every walk of life, I believe, in Canadian society.

I'm wearing a little green to show that there's a little Irish in me today, as well.

The Chair: They're just lucky they got me to work today. It'll be even harder tomorrow.

Mr. Raffath Sayeed: I was also involved in a committee that toured Alberta, called the Tolerance and Understanding Committee, that came out of, way back in 1983, certain pronouncements by a certain teacher in central Alberta, whose name I will not mention.

I have been a past chief commissioner of the Alberta Human Rights Commission. I've also been the manager of the hockey team at the local hockey rink, etc. The one sport I haven't taken up is curling.

So that's some of my background.

The lessons of last week must be foremost in our minds as we turn our attention to the proposed amendments to the Canadian Human Rights Act. As a past chief commissioner, I can vouch for the limitations of human rights legislation. Our notion of human rights has evolved significantly since the introduction of our charter not so many years ago. While many of us continue to think of human rights in terms of political and civil rights, the Canadian experience has demonstrated that a broader approach to human rights is based on the promotion of economic and social equality.

In our zeal to create tools and mechanisms that promote the human rights of people who have a disability, we must ensure that we do not unintentionally create systems that segregate and exclude and in some cases provide a basis for the two-tiered approach to the rights of Canadians.

You're all familiar with the task force on disability issues, chaired by one of your colleagues, Andy Scott. It was something we appreciated very much, an initiative from your government. I believe it has a lot of value and information that would be beneficial to you and to all Canadians.

Applying a human rights framework means that the inclusion of people who have a disability is considered in the design and development of economic, social, and political systems, not as a set of parallel or separate policies or systems. The Canadian Human Rights Act, essentially a vehicle for implementation of those rights, has provided a good example of the risks and complexities associated with designing policy instruments to address social and economic exclusion.

As we noted in our written submission on this issue, we believe it is critical that the Canadian Human Rights Act include provisions to ensure that measures for addressing systemic discrimination are not superseded by a duty to accommodate.

As we learn about the experience and application of human rights acts across the country we are concerned that the inclusion of the duty to accommodate will reduce the obligation to eliminate systemic discrimination by placing the focus on accommodating individual needs rather than on building systems that are inclusive. Our association has evolved to the extent that we believe today, by trying to approach this issue individually, we're just putting band-aids on the problem. There is a systemic problem that needs to be addressed, and the duty to accommodate may have the element of a band-aid solution.

Our experience has taught us that it is not necessarily the nature of an individual's disability that restricts them from participating but rather the structures and policies they encounter in the workplace and in their communities.

I would like at this point to introduce a very valuable member of my team, a very eloquent young woman and a friend, Gail St-Croix, who has a few words to say.

Ms. Gail St-Croix (Chair, Self-Advocate Advisory Committee, Canadian Association for Community Living): I'm going to talk about having a friend in the courtroom for people who have very little communication. A lot of times they go into the courtroom and don't understand. They understand what's going on, but it's hard for them to communicate back to the people in the courtroom. They really need a friend in there to support them and to help them communicate what they have to say.

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For instance, if someone uses their hands and their emotions, the court's not going to understand that. This could be yes, this could be no. You need somebody there to help translate that to the courtroom.

I only have a couple of other points to make. One is that we had a lady go to the police station; she had a disability and she had been raped. She went into a police station and reported this. She had a nervousness with her disability; she laughed a lot and because she laughed she wasn't believed. She wasn't believed in the police station that she was raped, therefore there was nothing done.

In a lot of cases, especially with disabled people who have communication problems, a variety of them often get lost through the justice system. I think if we don't soon do something about it, it's going to get a lot more serious and it's just going to get out of hand.

Thank you.

Mr. Raffath Sayeed: So rape was the issue and it was marginalized, again because of a difficulty to communicate.

The charter provides not only a litigious vehicle for the protection of rights but a basis for the recognition of broad economic and social rights. No legislation should lower the threshold of those rights. The Canada Evidence Act and the Criminal Code were designed without consideration for the inclusion of citizens who have a disability. We now face the task of developing methods for adapting those instruments to ensure access to the justice process for citizens who have a disability. Again, the challenge is to promote inclusion, not to create parallel or segregated systems, which will ultimately be unsustainable.

The charter is a fundamental expression of a common set of societal values. The truth of this statement was tested last week and I'm sure even Premier Klein will acknowledge the depth of support that Canadians have for those principles and fundamental rights. It is critical that we do not erode those rights by creating provisions that reduce our obligations as a society based on issues of cost.

We know from our experience in Canada and internationally that economic and social systems that exclude the equitable participation of all sectors of their society pay for that exclusion in lost productivity and social and political instability. A recent study done by the Inter-American Development Bank estimated the cost of the loss to society, the loss to the economy, at over $700 billion because of the exclusion of people with disabilities.

Our responsibility is to ensure that we learn from our history and in some cases our mistakes. We must ensure that we respect the rights of people who were victimized by our governments and by societies in the past and that we apply the lessons we have learned in attempting to promote equitable participation in our communities.

Specifically, we urge you to consider amendments to Bill S-5 to ensure that the bill does not weaken the requirement to eliminate systemic discrimination; does not limit the duty of accommodation by a narrow interpretation of health, safety, and cost; guarantees the right to give evidence for persons with communication difficulties; and establishes a protocol for investigation and prosecution of cases involving persons with special communication needs.

Thank you.

The Chair: Thank you very much.

Mr. Hilstrom, do you have any questions?

Mr. Howard Hilstrom (Selkirk—Interlake, Ref.): Yes, I'd like to make a comment and also ask a question.

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Certainly the public opinion on that was excellent with regard to the situation in Alberta and the attempted use of that notwithstanding clause. As well, from my experience in Manitoba, certainly “special interest group” is never used. If it's used, I certainly don't agree with it.

The one question I have with regard to employers and places of employment in terms of health and safety is that if a situation arose where the employer was of one opinion as to whether or not an employee should be doing a particular job and the employee was of a different opinion, do you feel there should be some provision for that to be referred to, for instance, Manitoba health and safety branch, or a health and safety committee, for a decision to settle a dispute? How would that work?

Mr. Raffath Sayeed: It's definitely one mechanism that could be used. It's somebody who's neutral, somebody who has no axe to grind, in a position to maybe come to some understanding or compromise. I don't know if it's a matter for Manitoba health and safety branch.

Again, I cringe at the word “health”, because for too long people with disabilities have been categorized in the health model and the sickness model.

But that's a mechanism that I think could be explored. Arbitration of some type is what you're suggesting, and I think that's a good idea.

Diane has worked with the association for 25 years. Once in awhile I lean over and ask her for her help. I've been involved with this one since 1976, but she's been involved longer than I.

Ms. Diane Richler (Vice-President, Canadian Association of Community Living): I think one concern we raised in our brief, following up on the guidelines that have been used in Ontario, is the recognition that traditionally there has been a feeling of paternalism in the workplace. Often people with disabilities feel willing to take certain risks, and other people around them are making the decision that this risk is not possible. Generally, I think, we would try to support the position of the individual being able to determine whether those risks were in fact too great to be undertaken.

If there was an impartial arbitrator, I think we would really want to look at what that system was, based on the experience we've had in other cases. In the education system, for example, when supposedly independent tribunals are set up, often the way those are named is that there's such a strong bias against recognizing the self-determination of people with disabilities that they're at a disadvantage.

So I'd think there would be some caution on that.

Mr. Howard Hilstrom: Thank you. Those were my primary questions.

The Chair: Thank you, Mr. Hilstrom. Madame.

[Translation]

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): First, please forgive me for coming in a little late and missing the beginning of your presentation. I will be able, however, to make up for it by reading your brief.

Nevertheless, I listened carefully to what you said and I would like to ask you a question. As I understand, like everybody else, you seem to believe that, in general, Bill S-5 is a step in the right direction. At the end of your presentation, you list four main concerns. Which one do you consider the most serious and which amendments would you like to propose?

[English]

Mr. Raffath Sayeed: Vis-à-vis the Canada Evidence Act, I think we probably should categorize that as our number one concern.

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Many of the people we advocate on behalf of have problems with communication. They are easily misunderstood, as Gail pointed out in the case of the young woman who was raped and who had a nervous disorder. It was misunderstood that she wasn't really serious about rape. Having worked with people with disabilities as a physician and as an advocate in my small community, I have had the opportunity to have over 35 people with disabilities in my practice at a given time. I can assure you that their methods of communication are not something we are familiar with as mainstream society.

So while we do not want to set up a segregated system for that, we wanted the report— And it can be done; it is not impossible, and it's also more cost-effective.

Ms. Madeleine Dalphond-Guiral: Merci.

Mr. Raffath Sayeed: Since you opened the subject of priority one—

Ms. Madeleine Dalphond-Guiral: Maybe you would have some priorities too.

Mr. Raffath Sayeed: —priority two— you've opened the door for me— would be the duty to accommodate. I think that has to be viewed very carefully, because as you know, the Supreme Court judgment in Christie v. Central Alberta Dairy Pool, in Red Deer, was the one that opened the door for that. That came out of the Alberta Human Rights Commission. It's so easy for that to get watered down and changed. There have to be some strict guidelines, and the Ontario guidelines are something that we would refer you to. We feel the regulations perhaps also should be part of the legislation and not be left open for interpretation. The Ontario guidelines are very good and we support them.

The Chair: Thank you.

Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): In your recommendation 8 you suggest that the section dealing with the creation of the new offence of sexual exploitation— a person with disabilities in a dependency relationship— be reviewed in five years' time. Do you feel the section is necessary at this time? If so, why would you want to review it within five years' time? Would you elaborate on your reasoning for that?

Mr. Raffath Sayeed: Again, we're not in favour of so-called special status or special interest groups, but I think it's necessary to view that to see if this cannot become part of the mainstream legislation. We believe it is necessary at this time because it's new. There has been nothing like it before.

Do you want to add to that?

Ms. Diane Richler: Particularly in the case of people with intellectual disabilities, the incidence of assault and sexual assault is incredibly high. Weaknesses in the Canada Evidence Act and in the entire due process has made it very common, even when there's acknowledgement that a crime has been committed, for charges not to be laid. We had a situation in Nova Scotia a number of years ago where a man confessed on national television to having committed a sexual assault, yet he was never charged because the police felt that since the victim could not testify in court— she couldn't take an oath— charges were never laid. So a pattern has been created throughout the justice system that has allowed a number of crimes to go unchallenged.

Because of that we do agree with the idea that there needs to be some higher standard to make sure there's protection of people. We think if that is followed over a period of, say, five years, hopefully we would not need to maintain the differentiation in the legislation—

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Mr. Raffath Sayeed: The special category.

Ms. Diane Richler: That's why it's with regret we agree with the idea of its being in the amendments, but we do think it should be reviewed so there's not constantly a perpetuation in our justice system of two standards of citizenship.

Mr. Raffath Sayeed: Yes. We support it now, but as you know from my opening statements, we don't want a segregated system. A crime committed against a “normal” person is no different from a crime committed against a person with a disability. However, when this becomes more generic— and we hope it does. We feel five years might be a good time to see how things work.

Diane mentioned one instance, and I know of others close to my community, in which the police discounted the account of a young male who was abused by his immediate family members. The police were involved and unable to get evidence. His behaviour indicates to those of us who know him or the behaviour that something is seriously wrong in this home. This has been going on for many, many years. Recently, through our association, we reopened the case and are pushing the police into doing something about it.

Mr. John Maloney: Thank you, Madam Chair.

The Chair: Thanks.

Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): Following up on that question, the inclusion of proposed section 153.1 in these amendments, changes to the Criminal Code—

The more I hear from members of this community about what this section in their minds responds to, namely the increasing incidence of sexual issues reported by people with disabilities, the less I'm satisfied that this particular section is responsive to the issue. The first thing it seems to do is to set up a kind of paternalistic scheme, namely a special category of criminal activity relating to people with disabilities.

The real issue to my mind is the quality of the consent of the individual involved in that sexual activity. Should the legislation focus more on the issue of the consent by the person with the disability, rather than getting into all the business of whether it's inviting, counselling, or inciting, or the quality of the person's disability? Is the issue really the consent?

Mr. Raffath Sayeed: Are you saying consent given to an individual—

Mr. John McKay: Consent given by the person with the disability.

Mr. Raffath Sayeed: For example, to a sexual act?

Mr. John McKay: Yes.

Mr. Raffath Sayeed: I don't think you can call it consent in most cases. I think it is really the abused we're talking about. Who interprets the consent?

Mr. John McKay: Well, that's the point.

Mr. Raffath Sayeed: Most of the time there is no consent. The actions immediately before and after indicate there was no consent.

Again, we have a society that has very little understanding of people with disabilities, especially those who have been labelled as having intellectual disabilities. Gail spent some time in an institution, and I think she will answer that question more appropriately.

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Ms. Gail St-Croix:

[Editor's Note: Inaudible] — for the simple fact that we're known in society— A lot of disabled people who have been institutionalized, who are in foster homes or in alternative care become very vulnerable. They don't always understand what sexuality is or what love is in a lot of cases. So if you're looking for someone to love you and to care for you, you don't really understand the difference until later on in life.

I've gone through all of it. I've gone through sexual abuse, physical abuse, and I've tried reporting it on several occasions, but I was never believed unless I had someone else to back it up, someone else to say, yes, this happened to her. And you're not going to get a lot of people to do that for you. But if you're able to put it down in writing, you might have a chance.

I just stated that this young lady went to the police; she stated that she was raped. We don't know what else happened to her, for the simple fact that the police didn't bother to carry it further. They didn't bother to find out what else happened behind those closed doors.

So, yes, disabled people are vulnerable, but they do try to find ways of getting help to overcome this and not to let it happen to other disabled people.

Mr. John McKay: So as I hear the disabled community, what you're saying is that when you walk into a police station or you walk into a courtroom, you want to be believed.

Ms. Gail St-Croix: Yes.

Mr. John McKay: It's fairly simple. When you're in a police station or when you are in a courtroom, the issue always arises about whether the disabled person consented to the activity—

Ms. Gail St-Croix: In a lot of cases, no—

Mr. John McKay: —and in a lot of cases they didn't, and that's the point. Does proposed section 153.1 advance this position? And I'm not at all clear that it does.

Mr. Raffath Sayeed: It helps; it's in the right direction.

Mr. John McKay: How does it do it? It's creating a whole new category of offence, and yet I'm not convinced that this is a direction, that this is responsive to what you're saying.

Ms. Diane Richler: In the case of children, say, when it was recognized that children were vulnerable there was an onus put on people in the health professions and the social service professions to report when there was any suspicion of abuse. The experience in Canada has been that when an onus has been put on it, it raised consciousness and it made people more aware of the severity of the crime.

Mr. John McKay: Why not deal with that by reverse onus? Why not simply say that in the case of a person with a physical or a mental disability there is a presumption that they are speaking the truth? It's a rebuttable presumption, but it is a presumption— reverse the onus altogether. Go in that direction instead of creating a new category of offence.

Mr. Raffath Sayeed: We're not lawyers. I don't want to prejudge lawyers or jurors, but wouldn't that go against our basic principle of being innocent until proven guilty?

Mr. John McKay: That's an interesting point. You raise a valid point, but reverse onuses are dealt with in other contexts.

Mr. Raffath Sayeed: I know— if there is a provision. Basically we are advocating for, as you rightly said, the belief that people with disabilities are speaking the truth, especially in the method and way they communicate them. Some may not even be vocal. For instance, something serious has been going on for a long time with this individual I spoke to you about, and he is communicating it in a different way.

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Mr. John McKay: Yes, I understand that.

Mr. Raffath Sayeed: Sometimes they stop speaking because of what's happened to them. They shut down— even if they could communicate in normal ways.

So we favour it. It's up to you, the lawmakers, to perhaps find some way to put what we are saying into something that supports our position.

The Chair: Ms. St-Croix.

Ms. Gail St-Croix: The other thing you have to think about a lot is that all you have to do is look at individual people. You can tell by looking at them if they're in pain. You know if a person is sick. You know if a person is in physical pain. You would also know if a person is in emotional pain.

In a lot of cases, that tells you everything. What they're trying to tell you is not easy for anyone at all, but for disabled people to come forward and say they were raped or abused takes a lot out of them, energy-wise. They go through a lot of trauma and pain. There's your evidence.

Mr. Raffath Sayeed: Just to highlight what she said, I can give you an example from my practice. A woman came in who had been attacking people. The staff complained to me, saying she was very hard on others, on the staff. I asked if anybody had seen if she was sick. We did a simple test. We checked out her urine. Sure enough, she had a urinary infection. That was her way of expressing she wasn't well. We treated the infection.

You didn't have to give her tranquillizers to fix her problem, because she had no problem— she was sick. But society at large doesn't understand that. What do we do? We load her up with drugs. We've stopped restraining people by tying them up. Now we give them chemical restraints. We give them Valium and we give them well-known drugs that are better than Valium these days, supposedly.

I say that as a physician. I don't mind being quoted. It happens.

That highlights Gail's point.

Ms. Gail St-Croix: It happens. It happened to me in an institution I was put in when I was about eight or nine years old. In a lot of cases if we acted out or did something out of the ordinary and they couldn't get us under control emotionally, what would they do? Give us pills to make us sleep for four or five hours. By the time we came out of it, we wouldn't even know what we had been put out for.

Mr. Raffath Sayeed: In answer to your specific question, it's probably a step in the right direction, but maybe you're right that it doesn't go far enough. Maybe it doesn't address it completely.

Mr. John McKay: Or it may be a step in the wrong direction.

Ms. Diane Richler: I think what's critical to us is that there are people who have disabilities who are being abused, and nothing's happening right now.

Mr. John McKay: I understand that.

Ms. Diane Richler: We're asking for a couple of things: to put a protocol into place to make sure that not just in court but throughout the whole criminal justice system people who explain their pain in different ways are heard, and to make sure that ultimately there will be the same protections for people with disabilities. The situation right now is that no charges are being laid.

So there may be more than one way to do that, but that's the objective. As Dr. Sayeed said, it's up to this committee to decide the best way to do that.

The Chair: Thanks, Mr. McKay.

Mr. Hilstrom, do you have a question?

Mr. Howard Hilstrom: Yes, one last thing.

Is the question of communication sufficiently addressed here in dealing with the criminal court system, the whole justice system? Normally it'll be the crown prosecutor who will make a final decision as to whether or not a prosecution is started, and the communication has to be with more than just the street-level police officer, because that's referred up, as you well know.

With regard to the question of consent under criminal law, of course there are rights on both sides of any case. The importance of all of this, and the one area that has to be absolutely addressed in any legislation, is that the communication, whether it's verbal, non-verbal or otherwise, is of paramount importance to everyone's rights when they appear before the courts.

Is this proposed legislation sufficient, do you feel, with regard to communications?

Mr. Raffath Sayeed: No, not enough.

Mr. Howard Hilstrom: Any suggestions there?

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leave it.

Ms. Diane Richler: There are two specific suggestions. One is in terms of allowing evidence in court where people cannot swear an oath and where people may communicate in different ways. The second is to put a protocol in place that starts even before the crown prosecutor is involved. It starts with police officers and goes right through the system to make sure that the entire criminal justice system is prepared not to discriminate against people who may have difficulties communicating.

Mr. Howard Hilstrom: That's fine. That's something like the zero tolerance laws we have in Manitoba that facilitate promotion of a case through court.

The Chair: Thanks, Mr. Hilstrom.

As we conclude here, I'd like to say that we have a national forum coming up and a major review of the state of the law with respect to the role of victims and how victims are treated by the criminal justice system. We'll certainly add you to the list of invitees to submit to us. It may be that you and other groups with whom you're associated would want to talk to us about the treatment of victims with disabilities in a more general way at that time.

Mr. Raffath Sayeed: Thank you.

The Chair: Thank you very much for taking the time to come to us. We appreciate it very much. We'll rise for a few minutes while our next witnesses prepare.

Mr. Raffath Sayeed: Could I just make one comment?

The Chair: Sure.

Mr. Raffath Sayeed: The fact that we've generated a whispering around the table tells me my job has probably just begun. I started as a volunteer. It shows the interest in the subject. That's what we came to Ottawa for; it was sort of a day off work to come and do this so that you as lawmakers know our needs and our aspirations.

The Chair: I can tell you that if you've stirred up Mr. McKay and Mr. Lee, it makes the people in the justice department a little nervous sometimes.

We'll just rise for a minute.

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The Chair: We're back.

I have to say that in all of my time on the committee this is the first time that I've chaired when LEAF has been here. So, welcome.

We have copies of your submissions to the Senate committee on this bill, but we understand that you didn't actually appear before that committee, and we wanted to have you here to tell us in person your concerns and where you agree and where you disagree with the act. If you could do that, then we'll have some questions to follow.

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Ms. Joan Dawkins (Co-chair, Women's Legal Education and Action Fund (LEAF)): Thank you, Madam Chair.

Let me begin by thanking the committee for according us this opportunity to come and speak to the content of our submission to the Senate, and I'm glad to hear that you have copies of it. We brought additional copies as well, so if anyone doesn't have one, I'm sure we can make one quickly available.

My name is Joan Dawkins. I'm a volunteer with LEAF and currently sit as the executive co-chair of the national legal committee and on its board of directors. With me is Carissima Mathen, who is a staff lawyer at LEAF. We're going to make a brief presentation to you this afternoon and focus on sections 2 and 15 of the Canadian Human Rights Act, and not the other amendments that are embodied in Bill S-5.

LEAF is a national non-profit organization that was founded in 1985 to promote the equality of women and girls in Canada, primarily through litigation and education. LEAF has appeared in more than 100 cases before the courts in Canada and some 27 times before the Supreme Court of Canada— and in fact, I assume that number will be bumped to 28 tomorrow, because we will be before the Supreme Court of Canada on an intervention tomorrow.

LEAF has also engaged in some law reform activity and has appeared on a number of occasions before committees of the House and of the Senate, and that's what we're doing here today, obviously.

As requested, we'll hold our initial comments to about 15 minutes or so, and then we'll stay for any questions or comments from the committee members.

Ms. Mathen is going to begin by discussing LEAF's concerns about the incorporation of the notion of accommodation into the Canadian Human Rights Act as it's constructed in the bill now. I'll follow with a brief presentation on “undue hardship” and the way that term has been in the past, is now, and may be in the future interpreted, both legislatively and in the tribunals and the courts. We'll express LEAF's view that these amendments as they're presented have some potential to undermine the rights of the very groups they're designed to protect. We do see some potential pitfalls, which we want to point out to the committee today in the hope that those can be addressed before the bill comes into law.

With that, I'll turn it over to Ms. Mathen.

Ms. Carissima Mathen (Staff Lawyer, Women's Legal Education and Action Fund (LEAF)): Thank you. As Joan said, our presentation will focus on incorporating the notion of accommodation into section 2 of the Canadian Human Rights Act and codifying the undue hardship defence in section 15.

It is our view that these amendments, though well intended, are not the way to move forward. In fact, LEAF is quite concerned that the amendments may have negative consequences for Canadians who suffer from discrimination.

I'd like to begin by stressing the importance of Canada's human rights legislation in preserving the social fabric of our nation. Human rights legislation has been called quasi-constitutional. This is because it aims to remove and redress discrimination, which has been recognized as essential to preserving not only the kind of a society to which we all aspire but, indeed, democracy itself.

A fundamental goal of all human rights legislation, which incidentally forms LEAF's mandate, is the promotion of equality. LEAF champions a notion of equality that is neither abstract nor theoretical but rather acknowledges that there is currently great inequality in Canada.

LEAF believes equality can be achieved through laws that produce fundamental and material gains for those persons who are most disadvantaged. This can be referred to as“substantive equality”.

It is our opinion that the purpose of the Canadian Human Rights Act is to promote substantive equality, but the effect of some of the proposed amendments contained in Bill S-5 will be harmful to persons with disabilities and other groups that suffer discrimination in Canada.

I'm sure most committee members are aware of the profound disadvantage experienced by persons with disabilities. Their history is one of exclusion, marginalization and social devaluation. We know that they enjoy less education, less employment, and fewer financial resources than non-disabled persons. Women with disabilities face even more obstacles, including a greater risk of experiencing violence.

LEAF submits that discrimination against disabled persons cannot be justified or explained by reference to individual impairment, or by the assumption that disabled persons are inferior to the rest of us. As with race and sex, reducing disability to a purely biological term greatly distorts the actual process by which these persons are excluded from society.

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LEAF submits that disability is but one variation in the continuum of human experience. What should concern us is the failure of our society to adjust to the needs and aspirations of persons with disabilities, rather than any failure on their part to adapt to an unequal society.

Just as race and sex were once thought to be natural indicators of hierarchy, so many people today assume that different abilities justify unequal treatment. We are concerned that this assumption may be strengthened rather than challenged by including accommodation in section 2 of the Canadian Human Rights Act.

For the purpose of clarity, the relevant portion of section 2 states:

—all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated— without being hindered in or prevented from doing so by discriminatory practices—

We also draw the committee's attention to the following clause in the preamble to Bill S-5:

Whereas accommodating the needs of persons with disabilities is particularly important to ensure that they can be full participants in and contributors to Canadian society;

LEAF is concerned that the proposed amendment to section 2 weakens the CHRA's enforcement of human rights. While LEAF understands that the amendments are motivated by a desire to strengthen human rights, we must conclude that the new section represents a possible step backwards. I will outline two reasons for this conclusion.

First, the wording of proposed section 2 and the preamble sets out accommodation as an end in itself rather than only one means of achieving substantive equality. We do not believe that a focus on accommodation alone is enough to ensure that persons with disabilities will actually enjoy such equality. It is important to recognize that while the principle of accommodation can have positive applications, it is essentially a limiting concept. It takes the status quo as given. Once accommodation is introduced, the focus shifts from the person who has experienced discrimination to the person or entity which has discriminated. The argument becomes how far that person or entity must go to remedy the discrimination.

For persons with disabilities, equality means the right to participate in an inclusive society. What is required is an approach that rethinks basic premises. We must be prepared to challenge the exclusionary impact of mainstream values and norms, not simply make allowances for those deemed unable to satisfy them. We must challenge the standard assumption that people are exactly alike in terms of abilities. We must accept and begin the process of dismantling the many barriers— structural, institutional and attitudinal— that turn differences of ability into the disadvantage we call disability.

Our second concern with proposed section 2 is that although the preamble mentions accommodation specifically with respect to disability, the new section 2 expands accommodation to make it applicable to all prohibited grounds of discrimination in the Canadian Human Rights Act. We find this expansion deeply troubling.

Historically, the theory of accommodation was developed in cases involving religious discrimination in the workplace. More recently, the Supreme Court has explored accommodation in charter cases involving disability. However, to LEAF's knowledge, accommodation has not yet applied in the same degree to discrimination on other grounds such as, for example, race or sex. We are therefore troubled by the possibility that accommodation, including the defence of undue hardship, will now be available for discrimination on these grounds.

We wish to stress that we are not advocating that different prohibited grounds may merit different justificatory standards. This would create a hierarchy in which some grounds are considered more worthy of protection than others. LEAF cannot accept such a departure from equality principles. LEAF believes that all prohibited grounds of discrimination share equal importance in that they are based on personal characteristics that are integral to the humanity of the person who bears them. Therefore, the issue cannot be resolved by separating out certain prohibited grounds— for example, disability— for analysis under a different test.

To conclude, LEAF believes that incorporating accommodation into section 2 has serious implications that could ultimately undermine the CHRA's purpose. Therefore, LEAF respectfully requests that the committee reject the inclusion in the form proposed.

Joan.

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Ms. Joan Dawkins: I will pick it up from there and talk about including accommodation as it's presently proposed in section 2, and will move on to the question of undue hardship.

It goes without saying that there are a number of groups in the country— and among them significant and respected disability groups— that are supportive of the inclusion of accommodation in the CHRA. We respect and understand their position, and our government in its wisdom may decide that accommodation in this form will be included in the CHRA.

Under those circumstances, our concern is what to do about what has become known as the defence of undue hardship. As I see it— and I'm going to do this very simply because that's how I think best— what the CHRA talks about in principle is equality and inclusion, or non-discrimination.

So as its basic starting point it says we're all in. It then says the reality in the world is that there are times when, in particular occupations or in the delivery of particular services, we have to limit the big principle that we're all included. The act creates bona fide occupational requirements; it creates bona fide justifications, for example.

However, it then says it's not going to allow just anybody to come along and create a justification. People can only have a justification or limit the big principle if they demonstrate they've attempted to accommodate the needs of individuals who would otherwise be excluded.

So we've taken it from here and pushed it in this direction with the bona fide justifications. We've now pushed it back a notch with the notion of accommodation. We're going to push it back over this way again by limiting what accommodation means. In these circumstances, accommodation is whatever accommodation is appropriate considering health, safety and cost. Those words carry with them some serious implications.

Never in Canada, to our knowledge, in a human rights system has accommodation been included without some balancing in the form of an undue hardship provision— I hate the word “defence”. So we don't have a precedent for one where there's a totally unfettered right to be accommodated without any balancing consideration.

Historically, the whole issue of what undue hardship means has been the subject of great confusion, and I think that confusion arises from two different sources. First, there has been a distinction in human rights law between what is direct discrimination and what is adverse impact discrimination. I think one of the parts of this bill we can support is the elimination of the need to worry about that distinction. Proposed subclause 15(8) of the new provision says this will apply regardless of what kind of discrimination we're talking about. So that piece of the confusion is gone.

The other piece of the confusion, though, is the interpretation that's been given to reasonable accommodation, or accommodation short of undue hardship, by tribunals and courts in the country. There's been a broad range of different factors and combinations of factors that has led courts and tribunals to determine that accommodation need not be made for particular individuals. There's a great deal of confusion now in those decisions about what undue hardship does or ought to mean.

The act has taken one step in attempting to make that clearer by including health, safety and cost. I will split the health and safety concerns because I don't think they need the same response. It is conceivable to us that health and safety concerns need to be balanced in this mix somehow. Our concern about that is very much the concern that was presented to you by CACL, which presented before us, that when you assess that concern it must be assessed through the lens of inclusiveness. We have to assume the big purpose of the act is what we are aiming at. We cannot be paternalistic or trivial. We have to be very careful how we use health and safety to limit the accommodations to which we would otherwise be entitled.

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One of the things you'll see in our brief is the suggestion that those words ought to be modified in some way, by a term like “serious risk to” health and safety. That would go part of the way to make clear that the act does not mean trivial concerns about health and safety, but must be serious issues.

The other thing that I think must be clear in the way the act states itself is that the analysis of what health and safety concerns would justify refusing to accommodate must be done from the point of view of the persons to be accommodated and not only from the point of view of those who will bear the burden of providing the accommodation.

Those words may be necessary in the act. If you are going to put in undue hardship at all, modification by those words may be useful. But I think it needs to be very carefully done.

Now we move to cost. LEAF's very clear position is that putting the word “cost” into this analysis invites placing a price tag on equality. We cannot as a matter of principle place a price tag, particularly a totally unfettered price tag, on equality. Cost, from the point of view of the accommodator, the entity required to accommodate, is a very big stick. If we put it in this section, in the definition of undue hardship, we will invite those who have an obligation to accommodate to find an excuse not to.

When we look at the Canadian Human Rights Act and who it applies to, it applies to the actions of our government as an employer and as a service provider. It applies to major national and multinational corporations. It applies not entirely but in large measure to large concerns, which will have a greater ability to meet and respond to the real equality needs of the people within their purview.

From that point of view, LEAF makes a very strong submission to you that the word “cost” ought to come out of there. I know you will have others come before you and say “Is she crazy?” I don't think so. There may be employers or service providers caught by the Canadian Human Rights Act who very legitimately would suffer the loss of their business or the destruction of what they're trying to do because of that provision, where the cost would in fact be crippling.

It's very easy to provide in another section, someplace over there where it doesn't affect the entire way we see accommodation, for those very limited circumstances. Or, in fact, the submission we make is that we should be providing systems to make sure those companies have the resources they need to meet the accommodation needs, instead. But we make a very strong submission to you on the issue of cost.

One of the things you may also hear in your travels is that our concerns are really premature on the issue of what undue hardship means, because there is a regulatory process built into the act for the promulgation of regulations, which will tell us what undue hardship is going to mean in the future.

I'll be very brief on that point.

First, it's our clear view that the guidance about what this act means should be in the act. We have to be clear that we not put broad and sweeping words in the act and leave it to some later process to deal with what those words mean.

Secondly, the process that is set out in Bill S-5, as it is now, does not promise us any meaningful kind of consultation on the issue of what those regulations will be. It says the word “consultation”. It deals with a role for the Canadian Human Rights Commission in the preparation of a report after consultation. But the timeframes are extraordinarily short.

There is no right to response once the consultations have taken place. There is no further publishing of the regulations for anybody to look at. In fact, the governor in council can go ahead and make regulations even without the Canadian Human Rights Commission's report, after a period of six months. I can tell you that having done the kind of consultative work that LEAF does when it does litigation, six months is not long enough to do that kind of meaningful consultation and bring back the reports.

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We think that the regulatory process is a difficult one and will not address the concerns that we're presenting to you today. In fact, among us was a fairly strong opinion that the Canadian Human Rights Commission itself would be a better body to take on the role of giving meaning to those words— if we're going to hand it off at all. We have concerns about that regulatory process as well.

To conclude, and as our brief concludes, our absolute bottom line comment is about the word “cost” and the need to get it out of the definition of what will limit accommodation. We'll close our submission on those issues for the moment and ask for questions.

I was going to say— I was sitting over in the corner aching to respond to Mr. McKay's question about the Criminal Code, and although we've said nothing at all about the Criminal Code in our submission, I did have just a little to say that might be helpful in response to what you were asking.

This is not a LEAF position, because I haven't discussed it with LEAF. This is just me.

I think there are in fact two separate issues. There is the issue of how to deal with consent when you have people with disabilities or people who have any other reason that makes it difficult to determine whether or not they consented, like communications difficulties or any of those things. I think that issue needs to be addressed. I'm not sure I would support a reverse onus. I think they are dangerous. But I think it does need to be addressed.

What I see proposed section 153.1 doing, though, is addressing the relationship between the perpetrator and the victim. It seeks to catch a character of offence that is fundamentally different because of the dependence, the vulnerability. It's the people who are in positions of authority and positions of trust who are caught by that.

To me, that is an offence of a different character. When you abuse the trust of people who are in your care or who depend upon you for the necessities of life, I do think there's a change in the character of the offence itself.

So for me, to respond to the needs of disabled persons who are being abused and victimized, you'd in fact have to do both. You'd have to deal with the consent issue, but I'm not at all sure that you don't need something— and I haven't examined it closely enough to know whether proposed section 153.1 does this— like that to deal with the relationship between the two.

Mr. John McKay: But there does appear to be a disconnect between the expectations of the particular group before you as to what this legislation accomplishes and what that proposed section actually says.

Ms. Joan Dawkins: I think you could be right about that.

Mr. John McKay: Yes.

Ms. Joan Dawkins: I'm sorry. I know that's an aside.

The Chair: That's okay. I have to tell you that as a committee we're struggling with the Criminal Code provisions in this bill. They are presenting some problems for us. Getting our minds around the grammar would be the first thing, and then beyond that there is the necessity to re-characterize assault in those circumstances. It's just an ongoing struggle we're having, so we're glad to have your input.

Do you have some comments or questions, Mr. Hilstrom?

Mr. Howard Hilstrom: Yes.

Certainly, as in sexual intercourse with a person under 14 and that sort of thing, there are provisions in the code for individuals who require those particular sections to ensure that their rights and the protections are in place. I think you're indicating, Joan, that you would like to see the word “cost” come out of there, but you're not suggesting, I'm sure, that costs aren't a part of any legislation. Legislation generally deals with practicalities: is it practical and what are the associated costs with it?

So recognizing that there are in fact costs, whether it's worded in the bill or not and where the ultimate goal is— and I don't think anyone disagrees with this full inclusion of all peoples in Canadian society— is this a case where possibly society as a whole should pick up these costs of accommodation, as in the Canada Health Act? Do you have any comments or answers?

Ms. Joan Dawkins: At a personal level, I do think more comprehensive programs need to be available from the public purse to assist employers and service providers to make the world a more inclusive place. The reality is that this is a societal need and concern, so I do think there need to be more comprehensive programs at the provincial level and at the federal level.

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Mr. Howard Hilstrom: Can you answer, real black and white: Do you think it should be society as a whole, as in health care, that guarantees that everyone has health care? Should this be the same as health care, in that the costs are picked up out of the government's general revenues, or is it a case that it should remain with the cost for the person who has a duty to accommodate?

Is that really too big a question to answer today?

Ms. Joan Dawkins: I'm going to take a crack at it.

I think it needs to be a combination of things. Accommodation can be a very simple and straightforward thing, and we should each, as employers, service providers, people going about our daily lives, take on some responsibility for doing that to the extent that it doesn't cripple us. So I think every one of us has some responsibility for that, and we can expect employers and service providers to do some accommodation.

Where it is not possible because of the excessive nature of the cost, because it would in fact cripple a business, for example, put it under, send it into bankruptcy to meet those needs, then I think we as a society have to assist. Rather than saying you're not important enough to accommodate, or you're not important enough to include, I think as a society we do have to say that this is so fundamental that we have to support it. But that's much more a political answer than—

Mr. Howard Hilstrom: I don't think it's political at all. My questioning on it certainly is absolutely not political, because I believe in the full inclusion of people. I've had many people in my riding from the society of disabled persons coming to me and promoting, lobbying the cause.

So if it's our objective, and it is our objective, to have full inclusion— and maybe it's not necessary for you to take a stand on this— the cost to a business— A business, you know, will always try to have the lowest possible cost to their business, so you're always going to have businesses against this legislation when they look at the bottom line—

Ms. Joan Dawkins: Yes.

Mr. Howard Hilstrom: —and that's what I'm saying. As a society, if we really want and are going to ensure full inclusion, should we not be looking at it as a federally funded right of accommodation?

Ms. Joan Dawkins: Certainly, at least within the context of the Canadian Human Rights Act, the kinds of entities that are caught by this act, many of them, it seems to me, should be leaders in this and should be expected to provide full and meaningful accommodation.

The federal government itself is a major player among those who are caught by this legislation, and it seems to me that we are deserving, as Canadian people, of leadership in this from our own government and that the act has to be strong in that. If the act is not strong, if we put the word “cost” in there and we don't deal with what “cost” means, and if we don't say it has to sort of bring you to your knees, then I think that “cost” factor will be played over and over again against the inclusion of individuals with any sort of accommodation needs.

Mr. Howard Hilstrom: Thank you, Madam Chair.

Ms. Carissima Mathen: Just to pick up on the point, I think certainly we would agree that the act is not a stand-alone instrument that can ensure full accommodation; that's clear. There are many other structural and educational issues with respect to persons with severe disabilities that may inhibit them from gaining access to the workplace that cannot be addressed by individual employers. So certainly there are broader issues than can be addressed in the Canadian Human Rights Act, but I think the Canadian Human Rights Act itself is also an important tool.

The Chair: Thank you.

Madame.

[Translation]

Ms. Madeleine Dalphond-Guiral: We had several witnesses today and I would like to discuss with you the new section 153.1 which adds a new criminal offence for people who are in a position of trust or authority and who invite, counsel or incite a person with a disability to engage in an activity of a sexual nature.

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This is something new. It seems to me that you find this section interesting, as I understand, and that it could even be broadened a bit. However, we heard witnesses asking that this section be reexamined in two years time to ensure that it is still useful or necessary. So, I am a bit confused. Could you clarify why you believe it is essential? On the surface, it seems to me that this is a good clause.

[English]

Ms. Joan Dawkins: I have some difficulty as well understanding what we will know in five years that we don't know now that would result in a change in that section. What it might do is permit us to see if the language of that section is meeting the need we think we are meeting.

When I read the section, someone mentioned the grammar and trying to get around what this section actually means. It may or may not in five years' time prove to do its job very well. In that sense there may be some reason to come back and have a look at it. If I'm right about what it's there for, I don't think the need for it will disappear.

[Translation]

Ms. Madeleine Dalphond-Guiral: Thank you.

[English]

The Chair: Mr. McKay.

Mr. John McKay: I just wanted your comments on this rather curious section, proposed subsection 15(3):

The Governor in Council may make regulations prescribing standards for assessing undue hardship.

Given the scheme of the act and given that we may not go with the concept originally presented, it seems like a curious section to me. Why would we decide to let the cabinet, on a hot July day with their feet on the table, decide what undue hardship is? Can you think of any parallels in any other form of legislation? Do you know of any other piece of legislation that has a parallel provision?

Ms. Carissima Mathen: I'm thinking about the repealed Employment Equity Act in Ontario, which had some extensive regulations passed soon after the act. The regulations were known fairly soon after the act and they dealt with definitions of some of the terms that were in the act proper. I think there might be a parallel situation with the Immigration Act and some of the regulations, which actually contain the meat of the provisions. They come out at a later time.

Mr. John McKay: When you read that and recognize its significance, that one and one half lines in the legislation is the guts of the legislation.

Ms. Carissima Mathen: That's right.

Mr. John McKay: The rest of what we talk about is enjoyable conversation but not much else other than that.

Ms. Carissima Mathen: It is a huge discretion; there's no question about it.

Mr. John McKay: I just wondered whether that was your impression as well.

The second issue I have is with respect to your concept of cost. You want to leave health and safety in there but you want to put costs over somewhere else. I'm wondering whether the situation is that if you're in for a dime, you're in for a dollar. If there is going to be a concept of what accommodation means, you in fact have to put cost and health and safety all on the same plane as well. It's not clear in my mind what you mean when you say costs will be extracted out of the concept of undue hardship and put over here. I don't see how that works.

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Ms. Joan Dawkins: I may not have been particularly clear about this, but I don't think it's helpful to stick in any one of those three words if you don't do more to give them meaning. I don't think you can just put the words “health and safety” in there and leave it to the discretion of future decision makers to figure out what they mean. I think there needs to be some further clarification of what we're trying to do.

I will talk about health and safety separate from cost again because I think the principles that would be applied to the analysis of the two are quite different. Surely what we're saying about health and safety is that the risk and concern about health and safety have to be significant enough to justify giving up the purpose of the act, which is inclusion. In order to come to that conclusion and say this is a big enough health and safety concern to actually overcome the big principle, which is that everyone should be included, we have to go further than just those two words. They're not helpful.

Mr. John McKay: But as long as the scheme of the act is one individual complainant versus an employer, for instance, don't you necessarily have to include the cost component in that equation, as long as there is a “defence” of undue hardship? If we move it to a different philosophical plane and say it is a societal responsibility, I understand your argument, but as long as the scheme of the act is complainant and respondent, don't you have to leave cost in there?

Ms. Joan Dawkins: In principle, the issue of cost is fundamentally different from the issues of health and safety, which may very well need to be built into the whole notion of undue hardship.

If you let me do it, I would deal with cost as a special exception somewhere else, not right in the definition of undue hardship. I wouldn't invite everybody who's required to accommodate to use cost as a defence. I would make it a special exception somewhere else in the act and I would make it extraordinarily stringent. I would make it available only in cases where the cost was so overwhelming that it would cause terrible hardship, or I would go with the suggestion that as a society we need to build in programs to cover those costs. But I think cost needs to be dealt with fundamentally differently from those other things—

Mr. John McKay: Notwithstanding the build-up of jurisprudence over time, which talks about the reasonableness of the issues as they would affect an employer.

Ms. Joan Dawkins: One of the things we need to keep remembering here is that the jurisprudence has built up, certainly in Canada, around provincial human rights legislation that deals with the little-guy landlord and the person who owns the corner store. Then cost becomes a fundamentally different issue from when you're talking about the obligations of the federal government, major airlines or these much larger concerns.

So I think the jurisprudence has built around situations that are caught by this act far less frequently— that small employer face to face with his or her five, seven or twelve employees. Those can be dealt with by an exception. But I don't want there to be a price tag on the fundamental right to be included in this country. When you put the word “cost” in there, you invite that kind of battle over money. Who has the money to fight the battles? It's not the individual complainant. Those arguments will be made by the people who hold the financial or economic cards.

Ms. Carissima Mathen: The nature of the employer is important to keep in mind, because if you draw the analogy to legislation, government policies or actions that are deemed to violate the charter, cost as a justification for that is a much more stringent test. It's appropriate to import some of that into the analysis we do here.

Mr. John McKay: So you're importing a charter concept of cost into this legislation, rather than cost as a concept that's developed over the past number of years in human rights legislation. Are we changing our concepts here?

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Ms. Joan Dawkins: Yes, we probably are saying that, and the reason we're seeing it is that in making this move, in choosing to include these new provisions, we have an opportunity to redefine what it means to expect accommodation, and we can do it within the context of the Canadian Human Rights Act and not be bound by the jurisprudence that's developed at the provincial level. I think that's what we are saying. We can do something in principle better than what is expected currently at the provincial level.

That doesn't mean that the provincial decisions are wrong. What they're dealing with is quite different from what we're dealing with here. The scope of the Canadian Human Rights Act is different; the entities to which it applies are significantly different.

Mr. John McKay: I realize that the employers, as such— and I can't think of— how should we say it? —a “victim” of this change, from an employer's side. But you're dealing with the airlines, you're dealing with—

Ms. Joan Dawkins: The banks.

Mr. John McKay: —the banks. You're dealing with large entities, largely—

Ms. Joan Dawkins: I'm not going to worry an awful lot— and this is purely personal— about the banks.

The Chair: Is it your position that we should subsidize Air Canada and the banks?

Ms. Joan Dawkins: Yes. That would be right on the—

The Chair: You have Mr. Hilstrom on the rafters with that.

Mr. John McKay: We've done that.

Some hon. members: Oh, oh.

The Chair: Mr. Hilstrom.

Mr. Howard Hilstrom: I'd like to say something here. You've certainly twisted around what I said. I was asking you a question about whether you felt this would be a viable alternative from your point of view. You're a pretty professional organization, you're lawyers and everything, and I think that was a fair question to ask you. I don't want you to take the position that I'm advocating a big funding scheme equal to health care. I was asking you a question and—

Ms. Joan Dawkins: No, and I'm sorry if I—

Mr. Howard Hilstrom: —I wanted an answer, which you didn't give. I accept that you didn't give an answer and that's fine.

Ms. Joan Dawkins: I apologize if I attributed to you a position that you hadn't yet taken. I certainly didn't mean to do that. I was only referring to you because you had raised the possibility.

The Chair: It's okay, Ms. Dawkins, I just wanted to know if Reform wanted to subsidize the banks. I think it was my line, not yours.

Mr. John McKay: You're full of mischief, Madam Chair.

The Chair: Thank you very much for your presentation. We were very pleased to have you here, and we'll move forward from here.

Ms. Joan Dawkins: Thanks again for the opportunity.

The Chair: We're adjourned.