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]

Thursday, March 19, 1998

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[English]

The Vice-Chairman (Mr. John Maloney (Erie—Lincoln, Lib.)): Good morning, ladies and gentlemen. We will convene the hearing this morning.

Today we have with us, from the Barreau du Québec, avocates Carole Brosseau and Madeleine Caron. Thank you for coming. Would you like to make a presentation? Then we will have questions and answers.

[Translation]

Ms. Carole Brosseau (Lawyer, Barreau du Québec): Good morning, first I would like to thank you for welcoming us here again today and allowing us to make our submissions on Bill S-5.

In view of the short period of time allocated to us, I would like to tell you that, when we prepared the brief to present it to the Senate, we used Bill C-98 because, as I told the federal government authorities, Senate bills, unlike public bills, are not available on the Internet. The corrections have not yet been made, although I hope they eventually will.

So we used Bill C-98, but, to all intents and purposes, the content of Bill S-5 is similar to that of Bill C-98, and the arguments in our brief are arguments that could easily apply to Bill S-5. Furthermore, we circulated a table of concordance this morning to help you in reading the brief and to determine the concordance between S-5 and C-98.

The Barreau du Québec is a non-profit organization whose main purpose is to protect the public. Our representations here are made in this spirit.

I am accompanied here today by Ms. Madeleine Caron, a human rights lawyer, and, for those who do not already know, I am a lawyer with the Research Department of the Barreau du Québec.

The Barreau du Québec's brief was based on the bill as it was introduced, with a clause-by-clause commentary.

However, the presentation I intend to make this morning, together with Ms. Caron, will be somewhat different. Instead, we're going to focus on the major points we would like to emphasize for committee members.

The issues we would like to raise this morning concern the amendments the bill makes to the Criminal Code. We will be talking to you about the status of members of the Human Rights Tribunal, about the separation between the functions of the Commission and those of the Tribunal, and between those of the Tribunal and the executive. Lastly, we will address the public protection aspects that are raised by the bill.

With respect to the Criminal Code amendments, we mainly present two whose importance I would like to emphasize. The first is the provision introduced by the new section 153.1 of the Criminal Code. This section creates a specific offence where a person in authority sexually abuses an individual with a mental or physical disability.

However, the problem arises in the case of an adult suffering from a physical and mental disability. In our view, this would harm this person because the current Criminal Code provisions concerning offences in this type of situation provide for stiffer penalties.

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For these offences, sections 151 and 152 are harsher than those proposed in the new section 153.1. I don't believe Parliament's purpose was to make these provisions more lenient in such cases. On the contrary, Parliament simply wanted to facilitate matters. We therefore think that a certain adjustment should be considered in this case.

The second amendment is the amendment to section 627 of the Criminal Code. To enable persons with a physical disability, but who can nevertheless serve as jurors, to take part in the legal process to the fullest extent possible, provision is being made here for the use of technical, personal or other assistance to enable them to act as jurors.

We would like to express certain reservations on this point. I'll take the very concrete case of a person with a hearing deficiency. That person would be helped by another person who would serve as an interpreter and act on that person's behalf. However, we have no reason to believe that that person—and this is the reservation we have on this point—will not interpret in his or her own way the decision the juror wants to make. This person would thus be a thirteenth juror who would attend the jury's deliberations, and this could cause a problem. I hope this example will help you understand our concerns. We essentially wish to point out these two cases as regards the Criminal Code.

The bill also provides for the possibility of advance publication of regulations by the Governor in Council. I think that this kind of prior publication can be very beneficial, certainly in the human rights field where the issues are fundamental issues and where citizens' arguments are extremely important. Moreover, the Barreau du Québec recommended earlier, in other circumstances, that all draft regulations should be published in this way. The public consultations that would take place as a result would also be desirable.

I will now turn to the new Canadian Human Rights Tribunal. First I'm going to talk about the status of persons who chair the Tribunal, then I'll give the floor to Ms. Caron, who will talk to you about the entire aspect of the separation between the Tribunal and the Commission, and between the executive and the Tribunal.

In the case before us, the training of the people who chair the Tribunal is fundamentally important. No provision is made for a jurist to be the Tribunal's standing Chair. However, we believe it is very important that a person with legal training preside over this Tribunal, first because the Tribunal will not just consider human rights issues, but legal issues in general.

Second, the tribunal is not required to observe strict rules of evidence. In these circumstances, it is even more necessary that the person chairing it be in full possession and have full knowledge of the rules of evidence in order to be able to assess the evidence.

The bill does not state that a jurist is required, and I believe it is fundamentally important that it do so, particularly since the new subsection 49(5) gives the Canadian Human Rights Tribunal a judicial role. It may rule on a question that concerns the consistency of a provision of a federal act of regulations with the Canadian Human Rights Act. This judicial role thus justifies requiring that the persons who are called upon to chair the Canadian Human Rights Tribunal have the necessary qualifications. In our view, it is essential that these people be highly qualified.

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Now I'm going to talk about place of residence. Members of the Tribunal are required to reside in the National Capital Region. We very much wonder about the appropriateness of this obligation for persons who are called upon to work on the Tribunal. First of all, the means of communication currently at our disposal enable people to live in different places. Second, qualified people may turn down a position on the ground that they will have to relocate their families to the National Capital. As a result, the regions will not be properly represented, although I believe this is one of this bill's objectives.

Thirdly, and lastly, there is the issue of the experts who are called upon to support the members of the Tribunal. There is no problem in using experts to gather better information, but it should not be forgotten that these will be the Tribunal's experts. These experts should restrict themselves to the known facts. In cases where expert opinions went beyond the known facts, the parties involved would absolutely have to be informed of that fact.

In this case, expert opinion should not be an underhanded way of obtaining information that cannot be part of the case itself. It must not be separate. So if we continue to use experts, their field of action or expertise must be limited to the known facts. If it goes beyond that limit, a mechanism for disclosing evidence should be provided for.

I've completed by presentation. I now give the floor to Ms. Caron. Thank you.

Ms. Madeleine Caron (Lawyer, Barreau du Québec): Good morning.

As Ms. Brosseau said, I'm going to talk about the lack of strict demarcation or sufficient barriers between the Human Rights Tribunal and the executive, that is to say the Minister of Justice.

The new section 48.3 provides that the Minister of Justice may order that corrective or disciplinary measures may be imposed on members of the Tribunal. We believe that this puts too much pressure between the executive and the Tribunal, which should be more independent of the Minister of Justice.

We also believe that the bill does not draw a clear enough line between the Human Rights Commission, which is an administrative and investigative organization, and the new Tribunal, which has a judicial function.

Allow me to cite a few examples. The new section 49.1 permits the Commission to ask the Chairperson of the Tribunal to appoint a member to hear the complaint. We feel this is not an appropriate procedure. The Commission should simply institute the action, after which the Tribunal would act in accordance with the appropriate rules of procedure.

Another example is subsection 40(4) of the act, which enables the Commission to join complaints when, in its view, several complaints have the same object.

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We agree that complaints can be joined, but, instead of proceeding at its own discretion, we believe the Commission should proceed by application to the Tribunal, which would then decide whether it is appropriate to join the various complaints.

The Commission also appears to be given too much discretion with respect to the Tribunal under section 53(2)(a), which concerns remedial measures which the Tribunal may order. After the hearing, the Tribunal may obviously issue remedial orders and so on, but this paragraph is not properly worded. I'll read you the exact text, which states that the Tribunal may issue an order:

(a) that the person cease the discriminatory practice and take measures, in consultation with the Commission on the general purposes of the measures, to redress...

We believe that the proper wording would be that the Tribunal be able to issue orders, but in accordance with the evidence heard at the hearing, not "in consultation with the Commission on the general purposes of the measures".

The other point concerns public protection. The purpose of this bill, of course, is essentially to remedy discriminatory acts. Consequently, the public is very much interested in the implementation of this act. The first thing I would like to emphasize is the matter of retaliation.

Section 14 of the act would be amended so that retaliation in response to a discrimination complaint would be considered as a discriminatory act in itself, which is a good thing.

As you know, in a business or an office, for example, when a woman complains of sexual harassment and files a complaint, a demotion or even dismissal may follow, and it is good that we can prevent these acts of retaliation.

However, the act does not provide for any specific measures, emergency measures in these cases, which exist in the Quebec Human Rights Act. When a person suffers retaliation after filing a discrimination complaint, the Tribunal must be able to consider the case even before the inquiry is conducted into the main discriminatory act. We believe that these emergency measures should be added.

The other point concerning public protection is the discretion that the Human Rights Commission enjoys in this area under the act. Section 51 provides that, when the Commission appears, it shall "adopt such position as, in its opinion, is in the public interest having regard to the nature of the complaint". We believe that the public interest is so important in an act such as this that the public order criteria should not be left to the good judgment of the Commission. Instead there should be objective criteria.

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Lastly, we would like to make a few remarks on criminal penalties. First, the expression used in section 53(2) is "person found guilty of a discriminatory act". As you know, human rights statutes are not criminal statutes, as the Supreme Court has often said. They are acts whose purpose is to prevent discrimination and to correct acts of discrimination. They are not criminal statutes and, consequently, the expression "found guilty" should be avoided.

Furthermore, sections 54(1)(c) and 54(1.1) prescribe monetary penalties in cases that are already provided for in the Criminal Code, such as hate literature. We believe that these provisions should be deleted because a person could otherwise be punished twice, which is not consistent with the general principles of law.

[English]

The Vice-Chairman (Mr. John Maloney): Thank you. We turn now to opening questions.

[Translation]

Ms. Dalphond-Guiral.

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): Thank you for being here this morning. I have two questions for you.

The first concerns the new section 153.1, which creates a new offence. The witnesses we have heard were surprised that the maximum penalty provided for this offence was five years, contrary to what appears in the previous sections, which prescribe a penalty of up to 10 years.

My question is this: could someone, for example, who is a victim of an act of this kind invoke section 271, which concerns sexual offences in the broad sense and which provides for a maximum sentence of 10 years? Of course, the sections preceding 153 concern children. It seems to me that a person with a disability eventually becomes an adult and has adult responsibilities. Could that person not use section 271, which provides for a sentence of up to 10 years?

Ms. Carole Brosseau: I don't quite understand your question. In the case before us, the problem is that there are already Criminal Code provisions in the case of minors. The issue in section 153.1 concerns adults. The offence or the punishment will be less harsh in the case with a person with a disability. The purpose was to set a lower evidentiary standard in the case of these people, essentially because it is not easy for them to appear in Court. Their credibility is often questioned. So it was to facilitate matters for these people.

However, where we have... it's the consequences for the adult. The offence or the consequences will be lesser. Obviously, challenges could eventually be brought against the discriminatory nature of this provision. We wonder how this would be argued. That will depend on the facts in issue. So it is possible that this provision will eventually be challenged, and we are pointing this out to you right away.

The purpose was to make it easier for persons with disabilities to appear in Court and to create a kind of presumption, but that will not necessarily be the effect.

Ms. Madeleine Dalphond-Guiral: My second question is for Ms. Caron. You spoke about concerns raised over the training of members of the Human Rights Tribunal. We have a Human Rights Tribunal in Quebec. I would like you to tell us the difference between the present Quebec Human Rights Tribunal and the Tribunal proposed in Bill S-5. Is that a clear question? I should say that it is simpler for me as well.

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Ms. Madeleine Caron: I understand your question. In Quebec, the legislature chose to create a Human Rights Tribunal that was completely judicial, that is to say that the judges are Quebec Court judges assigned to human rights hearings. There's one full- time judge and two part-time judges, but they are Quebec Court judges who are appointed for life. If you're talking about judicial independence, there is a higher degree of judicial independence in this case. That's my first remark.

Second, I would point out, and this doesn't necessarily follow from the fact that judges are permanent appointment, that the line of demarcation is much greater between the Quebec Commission and the Human Rights Tribunal than in what is being proposed in this bill.

There have been problems in the past. I believe the situation is somewhat improved by this bill as regards the status of the Tribunal. The Tribunal nevertheless has a certain degree of permanence compared to what previously existed, but some have at times noted a certain complicity, albeit only apparent, between the Commission and the Tribunal. I believe we should avoid this kind of thing in order to protect the public and so that justice is actually done.

These are two major differences that should be emphasized and that are consistent with our representations here.

Ms. Madeleine Dalphond-Guiral: Thank you.

[English]

The Vice-Chairman (Mr. John Maloney): Thank you, Madam.

Mr. Lee.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Thank you.

I want to respond to the suggestion that we don't have a strong-enough Chinese wall between the tribunal and the government.

I think it's fair to say that the view of this committee and our colleagues in Parliament over the past few years has been that in government, whether it's overseen by Parliament or government per se, we are reluctant to give up the ability of government to require accountability discipline, especially for misconduct on the part of members of quasi-judicial tribunals and boards.

The mechanism we have here is the only way we have ever found to do it. We simply can't abandon our responsibilities as elected representatives overseeing government, and create legislation that would would spin off a quasi-judicial agency, board, or tribunal. We would be unable to call it to account and to dismiss and discipline for the more egregious types of misconduct.

I wanted to ask you if you understood that principle from the point of view of Parliament, and if you agreed with it. If you don't agree with it, what other mechanism would you allow or provide for governance to ensure that government always had the ability to cause the agency or board to account properly, and to ensure that its members were reachable?

[Translation]

Ms. Madeleine Caron: Of course, the Barreau's position is not that the members of a tribunal should have immunity from all disciplinary sanctions and that they can act any way they wish, but that's a matter for the Minister of Justice himself. There could be a mechanism that is more independent of the executive or of Parliament.

[English]

Mr. Derek Lee: Who or what?

It's not just for this particular tribunal. There are many out there. We haven't created one. Maybe you're suggesting there should be a mechanism in government to deal with these disciplinary matters.

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A recent example that has come to us is the National Parole Board, which is quasi-judicial. We've had to enact provisions that allow for stricter accountability and discipline of its members by a procedure put in place by statute.

So you don't have a specific proposal for us, but you do understand the problem. Is that right?

[Translation]

Ms. Carole Brosseau: In the bill, you are instituting government control over a judicial process, and that bothers us.

The question you ask is much more complex and is the subject of a debate that has recently received considerable media coverage, particularly in Quebec. And that is essentially the issue of the action and role of our judges and how we're going to discipline them. It is this entire issue that concerns us.

I believe this is a debate that should be conducted independently of the bill and of us. It will have to be conducted. Control over the judiciary must be carried out within certain limits.

I'll give you a concrete example of what's going on in Quebec with regard to the Judicial Council. If the conduct of a court case disturbs the Minister or someone else, a complaint is filed with the Judicial Council and an attempt is made to determine whether or not the complaint is valid.

Where we are concerned is with respect to the resulting sanctions. There is either a simple suspension or a reprimand, which is not even as harsh as a suspension, or else that person is demoted. I believe this debate is now under way and should continue, but there are round tables where stakeholders should debate the issue more broadly.

There are precedents, in the United States among other countries, regarding the control exercised over judges and over the Code of Ethics. Will Canada decide to introduce a comparable system? I believe that's where we are now. It's a debate that is very present and very current, but it will have to be extended to all stakeholders.

[English]

Mr. Derek Lee: Yes.

[Translation]

Ms. Carole Brosseau: I can also tell you that it is very embarrassing to witness the Minister's control. Regardless of the objective, we say that there has to be an independent and self- governing judiciary which is not subject to political control.

[English]

Mr. Derek Lee: Okay. It's simply my view that we can't give it up until we have another mechanism. You're saying please find one that will suit, similar to the one we use for the judiciary. Each of the provinces has this mechanism, and federally we have a mechanism to deal with the judicial problem.

Now let me turn to the penalty for the Criminal Code section. You have suggested that the penalties in the Criminal Code amendment are out of synchronisation. In which way are they out of sync? Are the penalties proposed for proposed section 153.1 too low or too high? I think it was Madam Brosseau who raised that.

There was discussion earlier about the maximum penalty for another offence being ten years and this one being five years. I'm not too sure whether that was the....

[Translation]

Ms. Carole Brosseau: The five-year sentence in question is for an adult. The purpose is to create a new offence. This five-year sentence concerns disabled persons who are adults.

[English]

Mr. Derek Lee: Excuse me, just let me put the question another way. Are you satisfied with the penalty provisions here, and if not, why not?

[Translation]

Ms. Carole Brosseau: I won't answer that question in the way you want me to because the issue is not whether we are satisfied with these sentences, but that we are not satisfied with the fact that these people are subject to a different, and especially more lenient system.

You may get the impression we want to help these disabled persons and take them under our wing by creating a new offence, but this offence is not at all consistent with the general scheme. And, in general, the Barreau du Québec always objects to special cases.

Look at the Criminal Code. I can tell you that I carry it around regularly and that it is gotten a lot heavier in the past five years.

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We have a generous and workable general system, and we should preserve it. If we want to create a special offence, perhaps we should create it in specific circumstances, but it shouldn't conflict with the general scheme.

[English]

The Vice-Chairman (Mr. John Maloney): We'll have to cut you off at this time.

Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair.

I want to thank the witnesses for being here as well. Your input is greatly appreciated.

Perhaps I could pick up where Mr. Lee left off, with the comment on whether this bill does not, in essence, create a specific designated offence. It certainly appears to me that it goes further in terms of a category of sexual assault in this instance that would not exist otherwise. I would characterize this as arising from the fact that there is now a sanction or a provision for an invitation that would not exist otherwise. If an invitation is made to a person suffering from a disability, that physical or mental designation is what creates the offence. The word “invite” has been substituted for the word “induce” in this piece of legislation.

My question is whether there is a concern about consent to the invitation. I hate to use the words “splitting hairs”, but how is consent going to come into play as a defence to the invitation? Do you understand my question?

[Translation]

Ms. Carole Brosseau: We haven't viewed or addressed this clause from that standpoint. It was just with regard to the consequences or risk. So I couldn't really answer the question in the present circumstances. There's no problem with creating a new offence. It's a political choice, and others will be created.

The purpose is to provide assistance to disabled persons in sexual assault cases. We have talked a lot with Crown counsel who handle a lot of these cases. This provision is clearly being introduced to help disabled persons who are not very credible before the courts, precisely because of their disabilities. It's very difficult for Crown counsel to prove, in Court, a sexual assault against a disabled person.

But what is our concern here? It's the consequences. A new offence is being created for adults. This is a new class of sexual assault for which the penalties are less harsh because of the person's condition. But what's involved is nevertheless a sexual assault. I don't see why the clause is proposing a lesser sentence than the 10-year sentence imposed under the general scheme since, based on the evidence or the penalties, this is another offence in my opinion.

[English]

Mr. Peter MacKay: Okay. I guess what I'm referring to more so is the practical application of this. From a crown prosecutor's perspective, I can foresee that a defence lawyer is going to.... And this perhaps is getting into too much of a specific example, where the word “invite” is now inserted into the Criminal Code, or it would be via this legislation.

In a specific scenario under section 153.1 and this change, the scenario could unfold where in a workplace an employer or a person in trust, to use the more general description, wrongly interprets some exchange, unsaid, or even a conversation, and in response makes an improper advance or invitation. This is not involving any form of physical sexual assault, but this creates a criminal offence that says the person in a position of trust invites sexual conduct.

[Translation]

Ms. Carole Brosseau: But that's it.

[English]

Mr. Peter MacKay: I want your legal opinion on how consent to this invitation might play itself out in a courtroom.

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[Translation]

Ms. Carole Brosseau: I don't really know how to answer that. I reread section 153.1 while you were asking the question and it states "without any consent", "sans son consentement".

In that case, section 153.1 restates the terms of the general scheme. And that's the whole difference. That's why we are saying it's less harsh because we're really talking about a sexual assault, without consent. As I said, we haven't forgotten that view.

You're taking me into an area where I feel uncomfortable because, as I explained, disclosure of the Barreau's position must be authorized. For the moment, this is only speculation. As the Barreau's representative, I feel a little uncomfortable giving you an answer on this aspect, and I would refer you back to what we said on this clause.

[English]

Mr. Peter MacKay: I am looking further into the description or the definition of “consent” at subsection 153.1(2), where it says:

Subject to subsection (3), “consent” means, for the purposes of this section, the voluntary agreement of the complainant to engage in the sexual activity in question.

So we're talking more about the actual physical act of engaging. I'm just a little uncomfortable with the insertion of the word “invite”.

[Translation]

Ms. Carole Brosseau: It's the evidence that brings out these elements. It's unfortunate that I can't answer you because this is a question of fact. These are often cases involving questions of fact.

The problem for disabled persons, not physically disabled persons in particular, but rather mentally disabled persons, is that they have very little credibility before the courts. It was in this spirit that this new offence was created.

[English]

Mr. Peter MacKay: I have a very brief question.

The Vice-Chairman (Mr. John Maloney): It's just past your time, Mr. MacKay.

Mr. Peter MacKay: Okay, thank you, Mr. Chair.

The person who, in a courtroom, would be permitted either by virtue of assisting a juror or a witness or a participant in a trial.... Would you favour a court-appointed interpreter, or would you prefer that it was left open so that the individual with the disability was permitted to bring an interpreter or an assistant or an aid with them?

[Translation]

Ms. Carole Brosseau: In all cases or only jury cases? I believe that, in some cases, you would want assistance. Assistance is already provided in the courts. I can tell you about the Quebec courts, where certain aids are brought in. Various means are also used, depending on the person's disability, and testimony is not necessarily given in Court. There may be recorded testimony.

So the legal system has already introduced means and made adjustments for the testimony of disabled persons in cases where they are the victim. It is indeed in that spirit that you say: it's when they themselves are victims.

But what we're looking for in the bill goes beyond all that. We're not just talking about the disabled person who is the victim, but also about the disabled person who could take part in the judicial process generally speaking. So there is no problem in having this person helped so that he or she can participate to a greater extent.

On the contrary, the more participants there are, the more open the courts will be and the more credibility our judicial system will have. But the purpose of the bill is really to increase the presence of disabled persons in Court as much as possible.

So there must be an adjustment to disabled persons. This has been talked about for a long time as regards accessibility, for example, for people in wheelchairs. This is a problem.

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When we talked about jurors, we were mainly talking about physical disabilities. A mentally disabled person could have difficulty in certain circumstances. We're talking about the ability to serve as a juror, but there are different disabilities, different situations and different adjustments. The objective here is broader participation.

We wonder whether the judicial system will really be ready to open its doors to disabled persons and to make it easier for them to participate.

[English]

Mr. Peter MacKay: I agree with all the—

The Vice-Chaiman: (Mr. John Maloney): Excuse me. You're way over your time.

Monsieur DeVillers.

[Translation]

Mr. Paul DeVillers (Simcoe North, Lib.): In the second paragraph on page 4 of your brief, where you discuss clause 9 amending section 15, you say:

As far as subsection (2) is concerned, however, the concept of undue hardship has already been carefully worked out in the case law and we are afraid that it will be limited by this subsection.

Can you explain the Barreau du Québec's concerns on this point?

Ms. Madeleine Caron: In this clause, undue hardship is limited to cost, health and safety. However, in its decisions, the Supreme Court is much more flexible and considers other criteria such as the size of the business or the effects on the employees of a small business. These are only two examples. The case law does not limit the criteria and enables the members of the Tribunal to rule in accordance with the circumstances of the case.

Mr. Paul DeVillers: So do you feel the terms of this bill are too restrictive?

Ms. Madeleine Caron: Yes.

Mr. Paul DeVillers: Okay. Thank you very much.

[English]

The Vice-Chairman (Mr. John Maloney): Mr. Forseth.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): Groups come before us and they may have lots of general comments and wish-lists for changes. If you were forced to place them in order of priority, and say you get only one or two picks, which would be your highest one or two priorities if you were going to have amendments to the bill? What would be your absolute highest priority and perhaps your second priority of amendments according to your wish-list?

[Translation]

Ms. Carole Brosseau: All these points in our brief are priorities. But beyond that, if we're talking about the Tribunal, we might emphasize the qualifications of the people who are going to act and the line of demarcation, that is to say the very specific roles that will be attributed to members of the Tribunal.

The main purpose of the bill is precisely to create a Canadian Human Rights Tribunal. If it is created, the people who chair its proceedings must be very qualified, for the reasons we have already mentioned and that Ms. Caron explained at length. There must also be a demarcation.

These are the two main points that we would fix as priorities. Is that all right, for you, as far as protection goes?

Ms. Madeleine Caron: Of course, I don't get the gist of your question. Do you have a limited amount of time to consider the bill? Do you have to limit yourself to two or three points? I don't know what your objective is. So I think all the aspects of the brief should be considered.

[English]

The Vice-Chairman (Mr. John Maloney): Madam Finestone.

[Translation]

Mrs. Sheila Finestone (Mont-Royal, Lib.): I would like to point out that that answer is very interesting and well-deserved.

I have two questions, the first of which concerns clause 16.1.

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[English]

It says in the English version:

It is not a discriminatory practice to collect information relating to a prohibited ground of discrimination if the information is intended to be used in adopting or carrying out a special program, plan or arrangement under subsection (1).

[Translation]

This clause concerns information relating to a prohibited ground of discrimination.

I have a concern about the protection of privacy. I know that Quebec definitely has statutes that protect privacy more effectively than the federal statutes do.

Perhaps you spoke about them in your brief, which I unfortunately did not have the opportunity to read as I had to attend two meetings before this one. Do you feel some concern over this clause?

Suppose someone wants to set up affirmative action programs for disabled persons and to check a host of information: who are our clients, how can we proceed, what are the equality constraints, what is their nature, etc.? Doesn't clause 16.1 threaten the protection of this information?

Ms. Madeleine Caron: I don't really understand your question.

Mrs. Sheila Finestone: Clause 16.1.

Ms. Madeleine Caron: It's threatened, yes.

Mrs. Sheila Finestone: The problem is my Franglais, Madam. Perhaps I could speak in English if you prefer.

Ms. Madeleine Caron: No, no. The Barreau has not reviewed the issue. However, it is an issue that generally arises in the implementation of equal access programs. The person first has to agree to be considered as a disabled person. No one can be forced to undergo a medical examination, etc.

Mrs. Sheila Finestone: No, no.

Ms. Madeleine Caron: But it is understood that, in the general way of thinking, this information must be used solely for the purposes for which it is gathered. I agree with you that it would violate privacy to disclose this information.

[English]

Mrs. Sheila Finestone: I believe it's section 10 of the Quebec charter—it's certainly section 15 of the Canadian charter—where certainly we are entitled to collect information in order to ensure that employment equity, which in a sense is different from affirmative action, can be applied.

I wanted to make sure you didn't have a concern about that, because in Quebec you have a different set of laws. The fire walls around the information: there is no concern on your part?

If you didn't address it, then I'll leave it and go to my second question, if you prefer.

This relates to proposed section 48.1. You refer to the question of a certain amount of confusion. I believe my colleague, Mr. Lee, may have been dealing with the same question when I came in, but I'm not certain.

You say in your text—in the English version, anyway—that:

A certain amount of confusion between the respective roles of the Tribunal and the Commission testifies to a lack of clear demarcation between the functions of these two organizations.

You go on to refer to judicial independence, and you define the three essential ingredients—security of tenure, financial security, and institutional independence.

Then you move on to say:

The Barreau du Québec feels that this is a blatant example of the lack of strict demarcation between the role of the Canadian Human Rights Tribunal and that of the Commission. This is an example of administrative complicity

—I find the words very strong, and, quite frankly, not in the sense that any one of the bills of this government have ever been drawn up—

and the Barreau du Québec requests that this provision be amended so that the Commission will not be able to choose its judges.

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If you look at proposed section 48.1, the tribunal, or proposed section 48.3, the chairman and the vice-chairpersons and at least two other members of the tribunal must be members of the bar of a province or the Chambre des notaires du Québec. The chairperson or vice-chairperson must have been members of the bar or the Chambre des notaires du Québec for at least ten years.

I can't see where this is a blatant example of strict demarcation. I can't see where in any way, shape or form it's administrative complicity. The more I read this, the more, first of all, offended I was by the language, quite frankly, and beyond what I would have expected from the Barreau; and secondly, I'd like an explanation of where you see that there isn't enough of someone who has legal training. What do they have if they've been in the Barreau du Québec for ten years? Should they have been fired because they didn't have enough legal training? I don't understand the whole texture or

[Translation]

or what was behind those remarks.

Ms. Madeleine Caron: As regards the demarcation issue, I don't remember whether you were here when we talked about that earlier.

Mrs. Sheila Finestone: No, I wasn't here.

Ms. Madeleine Caron: In the wording of the clauses, clause 49, for example, it is stated that the Commission may ask the Tribunal to name a member. This is the kind of expression that suggests the two are working together, perhaps even that they might be in league together.

Mrs. Sheila Finestone: Excuse me, Madam. It states:

49. (1) At any stage after the filing of a complaint, the Commission may request the Chairperson of the Tribunal...

However, the Chairperson is appointed. The Chairperson is a lawyer with 10 years' experience. So it can't be said that this is a complete muddle and the Commission can do what it wants. There is an absolute distinction between the role of each of these institutions and no one can play some sort of trick. It seems to me you have misread something.

Ms. Madeleine Caron: My colleague Ms. Brosseau will discuss the issue around selecting a jurist or a lawyer. I don't believe it's because the Chairperson of the Tribunal is a lawyer.

Mrs. Sheila Finestone: Doesn't he become a judge of a tribunal?

Ms. Madeleine Caron: It's not because he's a jurist and the Chairperson of the Tribunal that, from an administrative and jurisdictional standpoint, the act permits an exchange of advice, as it were, between the Commission and the Tribunal.

We suggest that the Commission, an administrative organization that conducts inquiries, be able, at the end of its inquiry and if it deems appropriate on the basis of the evidence it has gathered, to put the case before the Tribunal. At that time, the Commission, like any other litigant before a court, must institute its action, on which the Tribunal will rule one way or the other.

Mrs. Sheila Finestone: Yes, that's correct.

Ms. Madeleine Caron: These irregularities appear in certain provisions such as subsection 49(2), subsection 40(4)...

Mrs. Sheila Finestone: I'm sorry, Madam...

Ms. Madeleine Caron: ...or paragraph 53(2)(a). Perhaps it's only a matter of wording, but there should not be so much informal communication between the Commission and the Tribunal. All that should be done in accordance with procedures which are generally recognized before the courts, that is to say that the Commission should file a complaint and the Tribunal should decide whether the complaints will be joined. The Tribunal decides whether the complaints should be joined.

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Under the authority conferred on it by the act, the Tribunal decides whether it has jurisdiction to hear the complaint and, after hearing the case, issues its orders in accordance with the evidence gathered.

Mrs. Sheila Finestone: Madam, that is what is stated in subsection 52(2). Don't you think that's exactly what it does?

Ms. Madeleine Caron: And the clause on evidence states that, after hearing the case, the member who heard it may order an end to the act and, in consultation with the Commission, take...

With respect to their general objectives, we believe their wording is inadequate and should be replaced by, for example, "in accordance with the evidence heard". Following the hearing, the Court does not have to consult the Commission to determine what orders it will issue. It has heard a case, heard evidence and it need only issue its orders in accordance with that evidence.

[English]

The Vice-Chairman (Mr. John Maloney): Madam Finestone, I think we're going to have to cut it off there. Thank you.

Is there another quick question from the opposition? Mr. John McKay, do you have a quick question and a quick answer?

Mr. John McKay (Scarborough East, Lib.): There's no such thing as a quick question.

I want to go back to your comments on the second page of your introduction:

Although we understand the principle underlying section 153.1 of the Criminal Code, we are puzzled by the creation of a new offence with a less severe punishment than is imposed by the current general scheme. Moreover, the effect of such a provision should be opposite to what Parliament intended to achieve and could work to the disadvantage of people with mental or physical disabilities.

Can you explain that? Can you elaborate on that point? One example might well be that a disabled person could well be charged with this offence.

[Translation]

Ms. Carole Brosseau: I don't know whether you were here when I said this earlier, but, in the interpretation of this clause, a new offence is ultimately being created for disabled persons; that's somewhat the purpose here.

However, that's not what we are questioning here, but rather the consequence and the wording of the clause. In the way in which the clause is drafted, it is very similar to the general scheme, which is that of an offence or a sexual assault. In these cases, the expression is "without consent" or "sans son consentement". For an adult, the consequence of the creation of this new offence is that it is very similar to the general scheme of sex offences against an adult. We wonder why the consequence for these persons would be less severe. We find this somewhat unjust. Why should this person, because of this offence, be liable to a sentence of five years, when a term of 10 years is provided for under the general scheme?

[English]

Mr. John McKay: So is the issue the offence itself then? Is it the creation of the offence itself, or the issue of the penalty?

[Translation]

Ms. Carole Brosseau: The creation of the offence itself, no. It's the objective behind its creation.

[English]

Mr. John McKay: So you agree with the objective?

[Translation]

Ms. Carole Brosseau: Yes, we understand the spirit. As I said, it's so difficult for disabled persons to achieve a certain credibility that there is a desire to give them more leeway and more opportunity.

[English]

Mr. John McKay: But how does this enhance credibility in a case of—

[Translation]

Ms. Carole Brosseau: You know that, in criminal evidence, there is always an issue of witness credibility that arises. People with mental disabilities are often at a disadvantage because this is more difficult for them.

[English]

Mr. John McKay: But this is not a reverse onus offence or an issue of consent. This is not an issue of credibility, this is an issue of the creation of a new offence.

[Translation]

Ms. Carole Brosseau: Precisely, but in the offence that is created, the problem is not the type of offence. We simply wonder why you have a general scheme which is more generous than the special scheme. We also put the question to you.

We are making a suggestion to you, and I would like it to be quite clear that we are not making it for or against anyone.

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We are not defending any clearly-defined position. We simply want it to be viable. We are putting questions to you that we are asking ourselves. We're asking you to tell us whether you are going to take sides as a committee. We also want to know whether you are going to answer that that's valid or not valid. We are raising all these problems in order to improve the act as much as possible. Afterwards, you can do whatever you want with our suggestions. Our objective is to improve it.

We're not trying to justify this offence. We're not a political group. We are simply telling you that, from a reading of the provision on this new offence, we understand it as being different from that of the general scheme for an adult with a disability. Do you understand me?

[English]

The Vice-Chairman (Mr. John Maloney): Madame Caron, we appreciate your being here this morning and assisting us with this legislation. Thank you very much.

The meeting is adjourned.