[Recorded by Electronic Apparatus]
Thursday, April 18, 1996
The Vice-Chairman (Mr. Scott): I'd like to call the meeting of the Standing Committee on Human Rights and the Status of Persons with Disabilities to order.
We are delighted today to have as our witness the Canadian Human Rights Commission, as represented by Max Yalden, chief commissioner, and John Hucker, the secretary general.
Just before we proceed, I'd like to bring to the attention of the members and others the presence of Mrs. Nin Saphon, who is from the National Assembly of Cambodia, and who is the vice-chair of the human rights commission there.
Mrs. Saphon, welcome, and we hope you find the exercise illustrative of how we do things here in Canada.
I understand we have two hours set aside for the presentation of the report and for questions, so without further introduction I would ask the commissioner to proceed.
Mr. Maxwell F. Yalden (Chief Commissioner, Canadian Human Rights Commission): Thank you, Mr. Chairman and members of the committee. I am very happy to be back before the committee to discuss our annual report on the work of our commission.
My introduction will be very brief so that we have as much time as possible to answer your questions.
Since I appeared before you about a year ago, there have been a number of developments affecting the commission's work. We've been very pleased in the first place by the adoption of the new Employment Equity Act, which we think will enhance the commission's ability to ensure equal access to employment for all Canadians. Our staff is getting ready for the day when the legislation comes into effect, and we hope the transition from the present system of a complaints-based process to an audit process will be a smooth one.
We'd like to see the law proclaimed and put into effect as soon as possible, Mr. Chairman. As I think some of the members will be aware, there is a one-year delay following the proclamation date, and we do not yet know when the act will be proclaimed. It was passed last December by Parliament. We see no need to delay. We'd like the government to get on with the process that will result in undertaking our new responsibilities as soon as possible.
We do not think, incidentally, that this will present any new or onerous burden on employers. Most of them will do exactly what they've been doing under the old act.
The other significant development on which we report in our annual report, from the point of view of the internal workings of the commission, was the reorganization of our complaints activities and the consolidation of the investigation of complaints at headquarters. Because we were able to transfer investigators' positions from regional offices, we were able to either relocate those offices to smaller and less expensive quarters, or find other organizations to share with, the result being what we had hoped - to save considerable sums of money.
While the transition created some delays in complaint processing over the summer months, we believe that those problems have now been ironed out. We now have a full complement of investigators working out of Headquarters. They are working to make up any time we lost during the summer.
Meanwhile, the staff remaining in the regional offices - three officers in the Montreal and Toronto offices and two in Halifax, Winnipeg, Edmonton and Vancouver - are adjusting well to their enhanced responsibilities in the area of public education.
We will continue to monitor the situation to ensure that we respond to complaints as quickly as possible.
I said when we tabled our report that it was a year when some things happened and some things did not. The main omission, I need hardly say, concerns the introduction of amendments to the Canadian Human Rights Act.
I realize I have sung this tune before, both in earlier annual reports and in appearances before this committee; however, I would be remiss, Mr. Chairman, if I did not reiterate our belief that the amendments to the Canadian Human Rights Act that we seek are important to the many Canadians they would affect.
One issue, of course, has caught the headlines. That is the matter of including sexual orientation as a prohibited ground. I don't think I need to go on at length about this. There's been a considerable amount written in the press and carried on the television. People are aware of what it's about.
Let me say only that an amendment of this kind is necessary, in our view, to bring the act into line with not only the decisions of the courts, including the Supreme Court of Canada, but also the legislation existing in seven of our ten provinces.
The recent Supreme Court case of Egan and Nesbit, decided a few months ago, brought all nine justices together in a unanimous statement that discrimination on the grounds of sexual orientation violates the equality rights stated in the charter. This is one more reason for getting on with an amendment without delay.
Of even greater concern to the commission is the fact that the controversy over this one issue of sexual orientation has postponed other equally important amendments to the act, such as the inclusion of a provision for reasonable accommodation of disabled persons and religious and other minorities. Another example is the removal of a blanket exemption for mandatory retirement.
Both of these have been goals of this commission for quite a long while and have been on the table for a long while. Both were referred to in earlier legislation put forward by the previous government in 1992, which died on the Order Paper at the time. Concerned Canadians have been waiting for these for a long time.
We also await the introduction of long-promised amendments that would make our human rights system more efficient and more effective. Examples are the creation of a permanent human rights tribunal and a provision to buttress the commission's independence by providing that we report directly to Parliament.
The amendment establishing a permanent tribunal is perhaps even more relevant now than it was, because the new Employment Equity Act, to which I referred a moment ago, envisages the establishment of tribunals to deal with compliance under that law.
We have no qualms about the competence of the present tribunals, but we believe the fact that they are part-time has made the process longer and more prone to delay than it should be.
I would urge that the government proceed with the full amendments package without further delay. I appreciate the fact that the government has other pressing matters on its plate. However it has been more than a decade since any changes have been made to the Act; the time for updating Canada's human rights legislation to meet the reality of the 1990's is long overdue.
Those are my introductory comments, Mr. Chairman. I'd be very happy to try to answer any questions or deal with any comments members of the committee might wish to make.
The Vice-Chairman (Mr. Scott): Thank you very much, Mr. Yalden.
I'll go first to Mr. Bernier from the Bloc.
Mr. Bernier (Mégantic - Compton - Stanstead): It is always an honour and a privilege to welcome Chief Commissioner Yalden of the Canadian Human Rights Commission. On behalf of my colleagues and of the Opposition, I would like to welcome you to our committee.
The privilege is even greater because our committee is writing a page of history. From what you said, Mr. Yalden, this is your final report as Chief Commissioner. I would not want to force you to retire, given your view of mandatory retirement, but it is true that you are reaching the end of your term of office. I would like to pay tribute to you personally and on behalf of my colleagues for the work you have done as our Human Rights Commissioner.
I followed your work as Human Rights Commissioner more closely but I'm also familiar with what you did as Official Languages Commissioner. Coming from a sovereigntist, this comment may take on a particular connotation, but I would like to assure you that my words are meant most sincerely.
As a citizen, I followed your work as Commissioner of Official Languages from a somewhat greater distance. Your unfailing sense of integrity has always impressed me. As Human Rights Commissioner you've always performed your work without complacency and with a great deal of realism. There is evidence on almost every page of your report. I would like to congratulate you for this as well.
I have at least four issues to raise: the status of the disabled, sexual orientation, human rights internationally, and particularly the rights of Canadians in difficult situations abroad.
Your report refers to the handicapped several times and highlights our committee's report to the House of Commons in December on the national strategy.
One of our main recommendations - made by Mr. Allmand, if I recall correctly - was to name either a minister or at least a Secretary of State as a coordinator for all recommendations regarding the handicapped.
Could you provide us with details about the priorities for Parliament in your view with respect to the disabled?
Mr. Yalden: We support legislation similar to the Americans with Disabilities Act, which has been passed in the United States. So we favour a broad piece of legislation covering all aspects relating to the disabled, including accessibility, services and access to the proceedings of a committee such as this one for the visually impaired.
I recently wrote to the House of Commons to point out that the proceedings of a number of committees were not available on cassettes or in braille. We would favour legislation that would cover everything. What we have at the moment is not bad, but it is scattered around among a number of departments and is in the hands of various officials. No minister is really in charge.
I agree with the committee that a minister or a Secretary of State responsible for issues relating to the disabled would be very useful. In this way, the handicapped would have an advocate in Cabinet and with the general public. That is important for symbolic reasons and particularly for operational reasons.
As to priorities in terms of substance, I think progress must be made on all fronts at once. Priority should not be given to one type of disability or to one kind of measure designed to meet the needs of the disabled. We must focus on accessibility.
I spoke earlier about the need to accommodate the disabled and about the importance of amending the Human Rights Act to emphasize the responsibility of employers and suppliers with respect to services for the disabled. This means that all federal government and private sector services should be available to the disabled as they are for all other Canadians.
Access to employment is also very important. It includes the ability to go through the main entrance to get into a building to work, but it also includes other social issues. As regards income tax, for example, should we be penalizing the disabled when they work? This has always been the case, because once disabled persons start working, they lose certain benefits.
The fact is that for disabled individuals life is difficult enough without that. They have a very hard time getting to work every day, without having to pay penalties because they are working. My answer may be rather long, but I think the honourable member understands what I am getting at.
Mr. Bernier: Yes, very well.
The issue of the property tax credit was raised in the House recently. I think the minister will be here next week to answer committee members' questions on this.
Since no specific reference is made to this in your report, I would like to know whether you received any complaints in the last year about the property tax credit, and if so, how many there were.
Mr. Yalden: Not that I know of.
Mr. Bernier: There were no specific complaints from the disabled?
Mr. Yalden: On this specific point. Over the years, there have been many representations made by organisations representing the disabled, but we have never had any complaints.
Mr. Bernier: I will come back on the second round to ask you some questions about sexual orientation.
The Vice-Chair (Mr. Scott): Thank you very much, Mr. Bernier.
Before we proceed, I should say this. Originally I said we had two hours. I understand that in fact we have only until 12:30, so could everyone consider that? The first round would generally be ten minutes, and the second five.
Mr. Strahl (Fraser Valley East): Thank you.
You mentioned that one of the things that has received most of the headlines has been the sexual orientation issue. It's been a headline for the report and also a headline for you personally. I think you tore a strip off the government and decried their inaction.
I have a couple of questions on the sexual orientation issue.
One of my colleagues, Ian McClelland, wrote a paper and circulated it to everybody, saying that rather than include more categories of people in the descriptive terms, maybe we should eliminate all of them. Maybe we should just say discrimination is not allowed, rather than add sexual orientation or any other category. He thought that would be a good way to go. What would you say to Ian if he were here?
Mr. Yalden: I read the comments made by Ian McClelland, and they're very interesting. In a way I suppose I might say I have no strong objection to that kind of thing. You could have a straight statement that there should be no discrimination against anybody, period.
Were he here and had he asked me that question, I guess I would say that being perhaps true, you'd be going against more than 50 years of history and a very weighty set of international precedents in the conventions to which Canada is a signatory at the United Nations and in legislation of other countries we would consider ourselves to be on a par with and friends of.
To take the most basic document of all, the United Nations Charter of 1945 says that there should be universal respect of and observation of human rights and fundamental freedom for all without distinction as to race, sex, language, or religion. The Universal Declaration of Human Rights of 1948 refers to race, colour, sex, language, religion, political or other option, national or social origin, and so on. Of course Canada is a signatory of both of those.
The declaration was adopted and repeated at the World Conference on Human Rights held in Vienna three years ago, where perhaps 150 countries were on side with this kind of declaration.
The declaration of the Council of Europe, which, as members know, encompasses all the European countries, has the same thing; the Organization for Security and Co-operation in Europe, the OSCE, has the same thing; the Organization of African Unity has the same thing; the Organization of American States has the same thing; and so on. The latest charter of a national sort that I've seen is the newly adopted constitution of the new South Africa; it includes it also.
So there is a tremendous body of opinion, if you will, and jurisprudence that goes in favour not only of saying there should be no discrimination in general but also of stating various specific grounds upon which you should not be discriminated against. Those grounds vary, of course.
Mr. Strahl: I won't speak for Ian, but I think part of the argument would be that the United Nations Charter started out with race, language, religion, and whatever else it was - there were four categories - and by 1950 it was ten categories, and we have twenty categories.
Are we going in the wrong direction? Is there an infinite number of categories? Maybe his point is that we've matured past that.
As you know, it is going to cause a huge kerfuffle in Parliament in the next couple of or three weeks. A big stink bomb is going to hit here, and it's going to be over the inclusion of specific words.
Mr. Yalden: I hope there won't be a stink bomb, Mr. Chairman. I can't guarantee these things.
I appreciate what the hon. member has said, and what his colleague Mr. McClelland would say as well.
Generally speaking, these grounds are not proliferating. There are about ten or a dozen, depending on the jurisdiction. In this country some provinces have a touch more than others. The federal act has ten, plus the courts having ``read in'' the eleventh, which is sexual orientation. Some provinces may have a dozen, some may have half a dozen, but it's never much more than that.
I appreciate his point. I've tried to give an answer in terms of history, international practice, and the practice of friendly countries. That's my answer.
Mr. Strahl: As you say, he made an interesting point. I'd never heard that before, and I just wanted your reaction to it.
If the government moves ahead and includes sexual orientation in the Human Rights Act, there will be a hue and cry. You know that of course. I don't know whether it will be a stink bomb or not, but there will be a hue and cry, at least from some circles.
The Charter of Rights guarantees that there will be no discrimination based on a variety of factors - although there are exceptions, such as that the government can discriminate in order to fulfil its employment equity targets and so on. You're allowed a certain degree of discrimination in those categories.
Will there be any change? As I understand it, basically that's what now allows certain religious institutions, say a private Christian school or a private Muslim school, to say ``I want somebody who agrees with my philosophy to have the right to teach here''. It allows discrimination in order to provide for that. It is discriminatory: you're not going to allow a Christian to teach in a Muslim school, and vice versa.
What would you say to those people who are concerned that by including sexual orientation in the Canadian Human Rights Act, you will be forcing people who say that they think homosexuality is wrong to accept those teachers in their schools? Is it going to make any difference, or will things just remain as they are, so that where religion bumps up against the Human Rights Act you will be allowed your religious beliefs and hire the person you want? What would you say to them?
Mr. Yalden: I'll give a couple of points by way of background, Mr. Chairman.
I'm not sure the way the law is being described by Mr. Strahl is quite exact. I'm not sure the law says you can discriminate provided you have justification. In some readings of the law it would be said that it is not discrimination if you have a bona fide reason for not hiring someone. It's true that the courts have held, for example, that in a religious school you can require that a person teaching be of that religion. That is the jurisprudence. But that's only a background comment. I don't disagree with what the hon. member is saying.
I don't think the proposal to put the words ``sexual orientation'' in the Canadian Human Rights Act would affect that line of jurisprudence at all. Now, I'm not a member of the Supreme Court of Canada. You might like to wait until some of these issues get to the Supreme Court of Canada.
There is a case in Alberta involving a man named Vriend, who is a homosexual and was fired from his job in a school. There has been legal argument in the lower courts and in the Alberta Court of Appeal, and the latter has said it's possible for the Alberta Human Rights Act to remain on the statute book and not be declared unconstitutional even though it doesn't have the words ``sexual orientation'' in it. But thus far, all that argument has been around the inclusiveness or exclusiveness of the act. They've never got to the substance of the matter of Mr. Vriend, and they won't until the Supreme Court of Canada has dealt with the appeal on this question about the status of the act.
It could be that if and when they get to the actual substance of the question...whether a Roman Catholic school or a school representing another religious belief could or could not bar a practising homosexual, I don't think has been decided by the courts. You will have to see what the courts say.
I'm saying that I don't think it would be changed by the amendment to the Canadian Human Rights Act envisaged by putting those two words into the act. Putting those two words into the act would essentially confirm that it is a discriminatory practice or a forbidden type of discrimination to differentiate on grounds of sexual orientation.
As a general rule, if you had a job in the federal public service, as I read it, if that was in the act you could not be kicked out on grounds of your sexual orientation. I'm sure the hon. member knows this, although it was perhaps a little while before he came down here to Ottawa. I was certainly here. There was a time when you were kicked out of the Canadian public service because you were a homosexual. This as a general rule would cease. It has ceased anyway because society has caught up with these things.
The Vice-Chairman (Mr. Scott): Mr. Strahl, could I turn now to the Liberals? We'll be coming back for five-minute rounds.
Mr. MacLellan (Cape Breton - The Sydneys): I too want to say very sincerely that I've appreciated your presentations and your contributions to various committees in the service of your country. You've done an outstanding job not only in human rights, but in official languages and in the service of your country abroad. If you are going to be leaving government service entirely, sir, you're going to be very much missed. I, for one, want to thank you very much for all you've done.
I have so many questions I want to ask because it may be the last opportunity unless I drop over to your house for a weekend or something. I want to probably concentrate on aboriginal issues. You mentioned when you were talking on Morningside last month that you felt the treatment of our aboriginals is our biggest racism issue. Does that accurately reflect your feelings?
Mr. Yalden: First of all, Mr. Chairman, let me thank the honourable member for those very kind comments. I hope I won't fade entirely from the scene. I hope we'll see more of one another, and that, I may say, goes for all members of this committee.
The answer to the substantive question is a very definite yes. I have said and our commission has said repeatedly that we believe the most serious - sometimes I'm tempted to say the only serious but I won't say that - human rights problem in this country by a long cut is that of the aboriginal people.
This is not to say that Canadians are racist. This is not to say that you or I or our parents or grandparents are guilty of something. This is a simple fact.
For any measure you look at, including suicides, unemployment, lack of education, lack of proper housing standards and lack of clean water, you name it and they're at the bottom. This can't be an accident. This is an historical fact and this is something that Canada must put right.
Abroad, Canada has an excellent reputation in the matter of human rights. It's excellent. The one cloud on the horizon, the one blot on our record, is that of the aboriginal people. Experts in human rights anywhere in the world will tell you that. What has gone wrong? Why do we have a class of persons, native people, who don't share in the rights and privileges that other Canadians have?
I think that in recent years, not just under the present government but under the previous government, the authorities, both federal and provincial, have come to realize that something has to be done. Something has to be done in addition to spending money, by the way. We've certainly thrown a lot of money at this problem and $4 billion or $5 billion per year is not an insignificant sum.
Canadians have certainly been uneasy about this problem for a long time but there seems to me to be a difference in so far as the public authorities addressing themselves to dealing with the problem in terms of self-government, in terms of land claims, in terms of social services and so on.
There are some moves that give one to be maybe just a little optimistic - if you can ever be optimistic in this business of mine - such as the agreement with the Nisga'a, the establishment of Nunavut and the move towards a self-government there in what seems to me to be a very responsible way, and the discussions that are going on with the Assembly of Manitoba Chiefs. Some of the more specific things are Davis Inlet or possibly the move of the Inuit that took place in the 1950s. There is movement on all these fronts and I think that's a very good thing.
The only additional comment one can make is this: we're starting from so far back that it's enormously complicated and is an enormously difficult problem for which no one, least of all I, has a solution. We all will have to work together and work very hard if we're going to develop something that will be satisfactory to the native peoples, that will be acceptable to the majority of Canadians, that will respect the charter, the Criminal Code and the right of the natives to govern themselves, and that will do all these things at once. We have our work cut out for us.
Mr. MacLellan: Mr. Chair, Mr. Yalden said something very significant in that he said it's got to be more than just throwing money at the problem. I think Indian Affairs is one of the few departments that actually receives an increase this year, and I think they did last year. The question is, in this era of reducing government expenditures, is there more money available? You've already mentioned that isn't the major concern. Are we really concentrating in the wrong directions? Should we be not dealing with the Department of Indian Affairs, for instance, as some people have said? Should we merely reapply some of the funding that is being put in certain areas to other initiatives?
Mr. Yalden: Well, Mr. Chairman, our commission said six years ago that we thought the Department of Indian Affairs should be abolished, and we haven't seen any reason to change our minds. We didn't mean by that some sort of cavalier gesture - that you delete the minister and his automobile allowance from the estimates. We meant that we should phase this out and phase in another kind of operation that would represent a point of liaison with the native leadership. I believe that is essentially the position adopted by Mr. Irwin these days, and I believe that is what he's up to in Manitoba. If this is a model for future discussion and negotiation with the native leaders, it's moving in the right direction.
I don't see that any of this should cost more money; I hope it won't. We're already in for a very sizeable amount of money in the budgets of the Department of Indian Affairs and Northern Development and the departments of health and others at the federal level, plus provincial programs, plus general transfers to native people as Canadians. I wouldn't look forward to it costing more. I would hope that by rearranging these things it would be ex aequo or maybe even save some money.
The Vice-Chairman (Mr. Scott): Thank you very much, Mr. MacLellan. In the interests of having some questions with the commissioner, I'd refer to Mr. Allmand.
Mr. Allmand (Notre-Dame-de-Grâce): Thank you, Mr. Chairman.
I want to start by seconding the remarks that Mr. MacLellan made with respect to Mr. Yalden. I've served on the official languages committee and this committee and other committees whereMr. Yalden has always given outstanding service, and I appreciate that.
Mr. Yalden, I want to start by making it clear that your report is not just your report; it's the report of the entire commission, and I presume that the eight commissioners unanimously approved of the report. Is that correct?
Mr. Yalden: Yes, sir. We're six at the moment, but they were shown the report in draft form and they were offered the possibility of comment on it. It represents our unanimous view, yes.
Mr. Allmand: The second thing is in response to the issue raised by Mr. Strahl. We should make it absolutely clear that the federal Human Rights Act only applies to areas of federal jurisdiction, and consequently would not apply to issues arising in the school systems of the country.
Mr. Yalden: That is also correct, Mr. Chairman. Unless it were a school on an Indian reservation -
Mr. Allmand: Or in the armed forces.
Mr. Yalden: - or on a national defence base.
Mr. Allmand: Yes.
I'm a strong supporter, and have been for years, of including an amendment with respect to sexual orientation in the Human Rights Act. I want to raise with you some of the objections that are raised by colleagues who oppose it, and obtain your reaction. I've given my reaction, but I want to have on the record your reaction.
Many of them say that putting in a simple amendment to include sexual orientation in the act will lead to other things, such as the granting of family benefits and the recognition of homosexual marriages. I personally think those are other issues that must be dealt with separately, but cannot see them flowing from the simple inclusion of those words in the act.
How do you respond to that? By the way, these people say that they would be totally opposed to any kind of discrimination against homosexuals or lesbians, but they do not want to see family benefits, or their unions recognized as marriages in Canada, and they're afraid that such an amendment would... What's your response to that?
Mr. Yalden: I'd like to try to make a general response first of all, and that is that what we are talking about is discrimination - only discrimination. We do not have any secret agenda. We are not in the business of deciding who's married and who isn't married, who's a spouse or who isn't a spouse. We're talking about discrimination in employment and in the provision of services at the federal level, period.
On the matter of discrimination, as far as I know, we are at one with the major churches. For example, the latest version of the Roman Catholic catechism says, and I quote, ``Every sign of unjust discrimination in their regard'' - that is, homosexuals - ``should be avoided.'' That was approved by the Holy Father not very many months ago. We agree with that, and that's what we are talking about. We are not promoting any particular lifestyle; we are not, as I said earlier, talking about who's married and who isn't married, and that should be absolutely clear on the record.
Now, the matter of benefits. What we're saying about benefits is that if the benefit is given not only to people who are married in the sense of having gone through a ceremony in a church or having a piece of paper from the civil authorities, but also to those who live in a common-law relationship, if a benefit is given to two heterosexual people in a common-law relationship, then it is discrimination on grounds of sexual orientation not to give that benefit to people of the same sex who live in the same kind of long-term, stable relationship - which can be defined. It is defined in the Income Tax Act, for example, that they have to live together for one year. That in itself, you might say, is discriminatory vis-à-vis married people who get the benefits the moment they get married, but I don't think that's our concern this morning.
What we're saying is that if those benefits - be it a dental benefit, or bereavement leave, or whatever it is - are given to persons living in a common-law type heterosexual relationship, then two persons of the same sex in a similar relationship could get the benefit as well. That does not go to the matter of who's married or who isn't married - at all.
Mr. Allmand: The other argument that is raised -
The Vice-Chairman (Mr. Scott): Mr. Allmand, make it very brief.
Mr. Allmand: Okay, very brief; this is a supplementary.
The other argument is that when we compare this move at the federal level with the many provinces that have already done it, these opponents of the amendment say you cannot compare what will be done at the federal level with the provinces because of the areas and jurisdictions, for example, whereas, as I pointed out, non-discrimination on sexual orientation in the provinces would include education. At the federal level it includes transportation and many other things. What they say is you're covering a different area of life, as opposed to the areas of life covered under provincial jurisdiction.
To me that is correct, but it's very clear - the areas of jurisdiction are clear: they're transportation, banking, etc., etc. How would you respond to that sort of a proposition?
Mr. Yalden: I don't see much merit in that argument. It's true, if you will, that there are different areas of jurisdiction. One is provincial, one is federal. But there is provincial transportation. After all, our commission looks after railways, because they cross provincial boundaries. Oddly enough, we also look after OC Transpo because it crosses a provincial boundary - it goes into Quebec. But we don't look after the TTC in Toronto; we don't look after the Montreal subway. But OC Transpo is the same thing as the TTC. So the law covers at the provincial level the same kind of thing it covers at the federal level - employment and services.
Provinces deal with different types of questions. For example, they deal a lot with housing. We don't, unless it's - again - on a military base, or something of that sort. So their legislation, in provinces which have included sexual orientation - which, by the way, is all provinces except Alberta, Newfoundland and Prince Edward Island, as far as I'm aware - would mean, in the matter of housing, that you could not refuse to rent an apartment, for example, to someone because they're a homosexual, or sell them a house, or whatever. You could not refuse to give them a hotel room or sell them something in Eaton's, or whatever. Those are the kinds of things the provinces deal with. In our case you couldn't refuse them banking service; you couldn't not give a person a job in Air Canada or Canadian Airlines or of course in the government or the armed forces.
Some of these things are not hypothetical, by the way. It wasn't so long ago that you would have had a hard time getting into the armed forces if you were a homosexual, and if you were in and were discovered to be one, you'd be kicked out. This was until four or five years ago.
Mr. Allmand: Thank you very much.
The Vice-Chairman (Mr. Scott): Thanks, Mr. Allmand.
I return now to Mr. Bernier of the Bloc, five minutes.
Mr. Bernier: I will skip my questions about sexual orientation, because Mr. Allmand has already asked them. I understood your answers very well.
I said earlier that I wanted to speak to you about human rights internationally. You do not deal with this issue in your report, and I know that you could tell me that this is not part of your responsibilities.
I already gave two examples about the matter of human rights and trade, a subject of interest to the committee as well. We know that for several years now, there has been a trend throughout the world to ignore human rights in a number of countries in favour of international trade. The trend could even be described as a skid.
We are familiar with these issues, and I'm not going to go through them one by one. But the other day in Toronto, which is where you're from, Mr. Yalden, we saw the young Mr. Kielburger shaking up the political class in Canada, and maybe in other countries as well. At the age of 13, he is already known throughout the world, and he may be our next Human Rights Commissioner.
This young boy brought us all back to reality by talking about child labour in Asia particularly. I went to hear his speech in Ottawa. He said that Canada should not boycott those countries, but rather show concern for human rights internationally, perhaps through international trade. He suggested that Canada identify the origin of products and goods and the people who manufacture them.
I would like to hear what you think about this problem, even if it doesn't come under your jurisdiction. Human rights are concerns to Canadians generally, but human rights in other countries should also be of concern to us. I would therefore suggest that our committee focus more on this issue, as Ms Finestone mentioned as well.
My second point is about Canadians in difficult situations abroad. I will take the well-known case of Mr. Quân, who was born in Vietnam and is currently in prison there.
On the basis of your experience and knowledge in the field, Mr. Yalden, I would like to hear what you have to say about these two international human rights issues.
The Vice-Chairman (Mr. Scott): Before we proceed, out of deference to the respect the committee holds for the commissioner and his knowledge of these issues, I understand why we would want to discuss these things with him, but I also feel I have some obligation to allow him the opportunity of removing himself from the hook, if he chooses to do that, without appearing to remove himself from the hook.
As Mr. Bernier has stated, it isn't really within the purview of our work that this might be addressed, so I want to make sure that everyone realizes that before you entertain this question.
Mr. Yalden: Mr. Chairman, I've come to these committees for a long time, and I make it a rule never to avoid a question asked me by a member of Parliament.
As the honourable member mentioned, the matter does not come under our responsibilities. However, more and more human rights commissions from other countries are coming to visit, particularly since the end of the Cold War. So the issue of human rights in other countries has been the focus of considerable interest. A number of human rights commissions have been established. Since you mentioned the young Kielburger, I would say that even in India, a human rights commission was set up 18 months or two years ago. It is quite an effective commission chaired by a former chief justice of their Supreme Court.
If our Human Rights Commission could play a role internationally, it would be to cooperate with other similar commissions or with developing countries to help them establish more independent, effective commissions, sometimes in extremely difficult circumstances.
I need hardly say that the human rights problems in India are infinitely more complicated and difficult than ours are, in all regards.
I would also like to speak about the link between trade and human rights. I don't think we should be creating a conflict between the two, because that is a false position. Canada is promoting efforts to establish a world free trade system, within the World Trade Organization. I think all the political parties agree that a free trade system throughout the world is a good thing for all countries, whether they are developed or developing nations. So we must work toward that.
Personally, I don't think boycotts achieve the objectives of those who, no doubt very sincerely, advocate their use. Except the case of South Africa, which was unanimously boycotted by all countries, since the war, there has never been a case where a boycott produced any change whatsoever.
Canada opposed the boycott of Cuba, for example. Canada has objected to the actions of our American friends against Cuba. I don't think they can really achieve the objective the Americans are seeking. However, I don't think that Canada should sit back and say nothing out of fear of losing its clients. We have certain standards, and we should ensure that the leaders of other countries understand our position regarding extreme measures against dissidents, child labour under unacceptable conditions, child prostitution, and so on.
I have nothing against the idea of identifying the products we import, but I would just say that in the case of a number of these countries, including India, only a very small percentage of products made by child labour are exported. This is not a way of solving the problem.
One way of solving the problem of child labour in India would be to help Indians require children in their own legislation, to attend school until the age of 14 or 15. If the children stay in school, they are not working, particularly at 8, 9 or 10 years of age. That is a solution, but it is very difficult to implement, because there are millions of children in India. There are not enough schools or teachers.
If we want to be logical, we must help the Indians broaden and improve their school networks so that children can stay in school. All that could be done while maintaining our trade links with India.
There have been some serious incidents and the Indian officials are well aware of them. We discussed with the Human Rights Commission about possible exchanges between the Royal Mounted Police and their counterparts to help train paramilitary personnel, who are sometimes the cause of some fairly serious human rights violation in India. We can and we must work with other countries along these lines. A trade board is simply not enough.
I would just add one comment by way of conclusion. We sold our wheat to the Soviets during the worst moments. I was working in Moscow between 1958 et 1960 at the time of the Cold War. Canada was selling its wheat and there was no question of a boycott. Our farmers were producing wheat and we needed trade outlets. We were not doing them a favour. So trade boycott is much to simplistic a solution.
The Vice-Chairman (Mr. Scott): Thank you, Mr. Bernier.
We have to move on, but I would take this opportunity to advise the committee that Mr. Yalden will be reappearing when we deal with estimates. You might also get together with Mr. McClelland and make a party of it.
Mr. Strahl: We're all waiting for the invitation now. Look what you've started.
In British Columbia the Nisga'a deal is a headline item. It probably will be in the upcoming provincial campaign as well.
The Nisga'a agreement, in principle, has for some people raised a human rights issue or a discriminatory issue. In the Nisga'a territories that have been assigned to them, it sounds like fairly extensive powers are going to be given to them on everything from administrative of justice to taxation levels and many other different issues. However, as I understand it, reading through the agreement, non-Nisga'as living within that area will not be able to vote for the government in that area. In other words, they will be subject to taxation and to the laws within that territory, but they will not be able to vote for the government that will be administering the taxation and the laws. Is that a concern? Is that a discriminatory practice?
Mr. Yalden: Mr. Chairman, if it is exactly as the honourable member describes it, I think it could be a source of some concern. It depends. For example, in the Territory of Nunavut, I understand that everybody votes, and I think that's probably preferable.
The honourable member mentions persons living there and paying taxes. That presumably would be at a future time when there would be some sort of native administration or government and he or I were living in that territory and were paying our taxes. I suppose if you're paying your taxes, you'd like to vote. That's pretty fundamental in this country.
Mr. Strahl: Or to hold office.
Mr. Yalden: I think these things have to be discussed.
I should say in all honesty and in all humility to the members of the committee that we're not, in this commission of ours, empowered to make specific recommendations on exactly how the authorities work out a deal with the native people. What we've said is that for too long we have lived in a situation of virtual colonialism with these people and that it has to stop.
Now the exact regime that this should obtain within a territory that enjoys a degree of self-government is, I think, being worked out. Many people are worried, for example, that the charter wouldn't apply. We've always said it should apply. As far as I'm concerned, I think probably the Criminal Code should apply, though there might be some perhaps special measures in respect to sentencing. You might use some community-based sentencing provisions as against incarceration. We know there are too many native people in prison, so the present system is no good. That's one thing we can be sure of, but what we should do is less clear.
I think this business of who would have the vote and under what circumstances has to be worked out in greater detail before I can make any useful pronouncement on it. There are situations in which different types of people get to vote for different things. For example, we're all familiar in this country with separate school boards as against public school boards. Certain types of people get to vote for one and certain types of people get to vote for the other, yet we all pay taxes. Maybe that's not the best system in the world - I'm not saying it is - but it is something we're familiar with.
There may be ways of dealing with that with native people, and particularly native people who live in the cities. This is a huge problem that we have yet to address. So I personally wouldn't want to make some categorical statement about the Nisga'a deal in respect to a specific point like that. I think it needs to be -
Mr. Strahl: If I could send you a copy of the agreement, or if I took out this section that has raised a red flag for me and sent it to you, would you comment on it?
Mr. Yalden: I'll try to do so, Mr. Chairman, certainly.
Mr. Strahl: Okay, I'll do that.
Mr. Yalden: We have some people around our office who know more about these things than I do. I'll get their advice and I'll be happy to write you.
Mr. Strahl: I need somebody who knows more than I do, too, so maybe that's a good place to -
Mr. Yalden: Well, you and I will correspond, but in fact it'll be two other people who know more about these matters than we do.
Mr. Strahl: I'm not going to discuss it at our weekend get-together with Mr. McClelland and all the rest of them. We'll talk about something -
Mr. Allmand: Non-citizens in Canada pay taxes and don't vote, some of them for twenty or thirty years.
Mr. Yalden: That's correct. There have been a lot of things. At one time, non-citizens who lived in Canada but were British did vote. There are as many rules and exceptions to these rules -
Mr. Strahl: And of course for many years Indians lived in Canada and were not allowed to vote. Certainly that was wrong -
Mr. Yalden: Until 1960, yes.
Mr. Strahl: Exactly. So there were certainly some things to be ashamed of there, but I'm just concerned. What I wouldn't want to see happen is for something else to come in its stead and on which we may look back and say it was a poor development, too. But perhaps you can't comment further until I send that off.
Mr. Yalden: Okay, I'll be glad to have that.
The Vice-Chairman (Mr. Scott): Thank you, Mr. Strahl. Mrs. Barnes.
Mrs. Barnes (London West): How much time do I have this first round, Mr. Chairperson?
The Vice-Chairman (Mr. Scott): You have five minutes for this round.
Mrs. Barnes: Not enough.
Well, I'll start very quickly by saying that I personally thank you for your work. I think your reports speak very well of the dedication you've brought to your job. I also want to say briefly that two years ago I was at an international forum at which we talked about human rights and the vehicles that we use as countries to hold the mirror to ourselves. I was very proud as a Canadian to have this vehicle, this commission at the federal level, mirrored with our provincial things. I think that's extremely important, and sometimes I don't think we value enough the fora that we do have in which to watch ourselves.
I want to say that many of the topics that you have in this report concern me - employment equity, pay equity, the situation of women's rights being human rights, and so many things I'd like to question you about.
Unfortunately, because of a phrase I heard earlier today, a characterization, I do want to centre on one issue, and that is discrimination based on sexual orientation. I want to talk about efforts made to educate the Canadian public, and perhaps the role the commission can have in helping to get the message out that what this particular position is about is a basic human right of non-discrimination, nothing more and nothing less.
I know you're on the Internet. I wonder if you could be even more proactive in getting the message out. In my riding I get asked many, many times by extremely well-meaning individuals who think what could happen here is that somehow we would allow sex with minors or sexual abuse of children... Will you please answer very clearly whether non-discrimination based on sexual orientation would in any way affect the criminal laws of Canada.
Mr. Yalden: Mr. Chairman, the answer to that is absolutely not, no. I don't know how many times I've been asked that question. I appreciate the hon. member putting it on the record. She knows the answer, but it's useful to repeat that answer. It's a categorical no.
We're talking about services. We're talking about employment. We're talking about benefits, sure. But I think hon. members will know many institutions offer these benefits to same-sex couples and they certainly don't approve of any particular lifestyle. If the committee members would like to have a list of some of these companies in the private sector that give benefits, then we would be very happy to provide it.
They include, for example, the Sun newspaper chain. I don't think anyone would want to suggest the Sun newspaper chain is in favour of a particular lifestyle. I judge from an editorial I read about myself in The Calgary Sun that they certainly are not, but they give those benefits.
So the two things are different. We're talking about non-discrimination. If the objection to that is somehow religious, I say the churches... I quoted you the Roman Catholic catechism. The Anglican Church takes the same view. The United Church takes the same view. Outside the Christian communion, the Canadian Jewish Congress takes the view that the act should be amended to include sexual orientation. So the religious argument, in my view - at least I'm prepared to leave it to the duly constituted authorities - doesn't seem to hold up.
I presume the moral argument relates to this matter of lifestyles, surely not to the matter of discrimination. Surely we all agree you should not be discriminating against people because of their sexual orientation, and that's all we're talking about. The Criminal Code and certain sexual practices that fall under the Criminal Code are in no way affected.
Mrs. Barnes: In your view, what is the current law in Canada, in light of the Egan and Nesbit case?
Mr. Yalden: I'm sorry?
Mrs. Barnes: What is the law on non-discrimination in Canada today in light of the Egan and Nesbit decision in May?
Mr. Yalden: The nine justices were unanimous in saying it is inconsistent and unacceptable under the charter equality rights to discriminate against someone on grounds of their sexual orientation. Members around the table will of course know that this was a very complicated case, the substance of which had to do with whether it was unconstitutional to forbid a spousal benefit, an old age security benefit, to men living in a long-term, stable, common-law-like relationship. The court split five-four and said no, it was not unconstitutional; that particular type of program had targeted a certain group, namely married persons, where, generally speaking, the wife or the female member of the common-law couple was younger than the husband and would be in a difficult situation in a five-year-gap bridging period; that was the purpose of the legislation and it was not unconstitutional not to give it to everybody else, including same-sex couples. But in the course of doing that, all nine of them said it was not acceptable under the charter to discriminate against people on grounds of sexual orientation, and as far as I'm concerned, that's the law of the land.
Mrs. Barnes: I agree. Why then, playing devil's advocate, should we include it in a statute? In your view, why bother getting into this if it is already the law of Canada?
Mr. Yalden: The answer is very simple: Canadians are entitled to know the law by reading their laws. They ought not to have to be experts in legal proceedings who give their evenings and maybe their weekends over to reading jurisprudence and therefore know that the Supreme Court of Canada has said such and such, or that the Court of Appeal in Ontario said such and such in the case of Haig and Birch, or that the Alberta Court of Appeal said something else in another case.
It ought to be in the Canadian Human Rights Act, and only Parliament can put it in the Canadian Human Rights Act.
Mrs. Barnes: You mentioned that a majority of our provinces in Canada already have human rights legislation that affect the jurisdiction within those provinces. Is there anything we are doing today - well, we're not even doing it yet - that would be incremental in obligations and rights over and above what these provinces have? Or is it like talking about apples and oranges?
Mr. Yalden: One is at the federal level and the other is at the provincial level. As I said, we deal with interprovincial transport, for example, and they deal with transport within the province.
Mrs. Barnes: I'll clarify. Would this include marriage or adoption?
Mr. Yalden: The frequently discussed amendment of adding the two words ``sexual orientation'' to the Canadian Human Rights Act would have nothing to do with marriage.
The Vice-Chairman (Mr. Scott): What about children?
Mrs. Barnes: Or adoption?
Mr. Yalden: No, it wouldn't have anything to do with adoption.
By the way, even in countries where there is recognition of what are sometimes called registered partnerships, which is a form of relationship between two people of the same sex, there is no country that allows adoption within that type of relationship.
The Vice-Chairman (Mr. Scott): Mr. Bernier, if you have a one-sentence question...
Mr. Bernier: I asked you...
Mr. Yalden: I didn't answer the question about Canadians abroad? Did I?
Mr. Bernier: Exactly.
Mr. Yalden: Of course, we have the greatest sympathy for any Canadian in a difficult situation or imprisoned under unacceptable conditions. Quite clearly, we have no jurisdiction over this type of matter. If I were travelling in a particular country and I knew for a fact that a Canadian was in such a situation, I would raise the matter with the authorities or with the commission, if the country had one.
Representations of this type should normally come from public authorities, that is from the Department of Foreign Affairs or from the Prime Minister during visits to the countries in question. As a matter of fact, this practice has been going on for a very long time. Even when I was in Moscow 35 years ago, representations were made by the embassy, by visiting ministers and even by prime ministers.
The Vice-Chairman (Mr. Scott): Mr. Strahl, one sentence.
Mr. Strahl: To follow up on the comment you made that Canadians shouldn't have to stay up late or on weekends to read court procedures in order to know what the laws of the land are, it seems to me a little contradictory to what you said earlier, which was if religion bumps up against the sexual orientation issue, we'll just have to wait and see what the courts decide - wait until it goes to the Supreme Court. Is there clarification needed for those who are concerned that they may be forced to accept a person they didn't want for religious reasons in their school or their parish, or whatever? Should we have clarification of that, or will we have to wait for the courts?
Mr. Yalden: It seems to me that the answer to both is yes, as it were. We know that the law as far as our commission is concerned rests on on two bases: one is the statutes - and in particular the Canadian Human Rights Act - and two is the jurisprudence of the superior courts, the Federal Court of Appeal and eventually if necessary the Supreme Court.
When we, for example, take complaints on a certain ground or a certain type of disability, let's say, if the courts come along and say sorry, you can't do that, we stop doing it. The law hasn't changed, but the courts have ruled that we cannot take a complaint like that.
A good example would be people over the age of 65. We had complaints in our commission from many people over the age of 65 who have been forced to retire. I underline over 65. The Supreme Court came along in a couple of cases - one out of Alberta involving Olive Dickason, a professor, and one out of Ontario involving another professor, McKinney - and said it is not unconstitutional to make people retire at 65. We then had to go to these people who complained to us and say sorry, there's nothing we can do for you.
We're bound by court decisions as a commission and so is every administrative body in the land. It doesn't matter. You don't escape that, whether it is provincial, federal or anyone else.
That leaves us with a question of the law and what would be added if you changed the law and put these two words in. In my view, in the narrow sense legally speaking, nothing would be added, because we're already taking cases based on sexual orientation because the courts - and in particular the Ontario Court of Appeal in a decision that was not appealed by the Attorney General and therefore is the law - said that we must do so because otherwise our act would be unconstitutional. So we're doing it.
That brings us back once again full circle: why do you have to have an amendment to the act if you're already doing it? The answer is the one I tried to give. It seems to me that Parliament must legislate in an important area like this one; it must be in the law and be seen to be in the law so that Canadians can know what the law is. But there are in fact many things that are not there in statutes but are legally binding because of decisions taken by the higher courts.
Mr. MacLellan: Mr. Yalden mentioned the problems of aboriginals living in the large cities. There is a sentence in the report I'd like him to elaborate on if he would. It's on page 23, where you say at the end of the second paragraph:
Mr. Yalden: I don't want to scoop the royal commission who are dealing with these matters in some detail, I don't doubt, nor do I want to put my foot in it, but what we meant I think was a kind of common sense observation. It may be a rather obvious one that within let's say the city of Toronto it's not possible to have in addition to the metropolitan government and the Toronto government and the Scarborough government, etc., an aboriginal government that would look after everything. Obviously, some things are going to be common services that are dealt with by the municipality. But it doesn't seem to me beyond imagining that there might be, for example, native schools, some kind of Toronto native school board, let's say, that was responsible to a degree for the curriculum of those schools, perhaps under general provincial supervision, as are ordinary schools. Perhaps it could be less so, perhaps if it had more autonomy...
There are other local sorts of arrangements that could come under an aboriginal authority even within a city. That's what we were referring to. But we couldn't see how you'd have a totally separate government as you might do in some kind of a more isolated situation.
The Vice-Chairman (Mr. Scott): I thank you, Mr. Yalden. I thank you, Mr. MacLellan.Mr. Yalden said he didn't want to scoop the royal commission. Clearly the member from Nova Scotia wanted to scoop the member from New Brunswick, because that was my question.
I should say that I'm sure the chair would want me to pass along her regards in concert with other members who've spoken of your considerable service. My own comments will speak more specifically to official languages.
We in the province of New Brunswick always look forward to the Commissioner of Official Languages' report, as it seems to smile on the only officially bilingual province in Canada. I thought I'd throw that in.
With that, I thank all and the commissioner. We look forward to... I'm told you don't reappear, you appear again.
Mr. Yalden: No, I certainly don't. I hope you're not giving him any theological sense that I reappear. I'm here, and Mr. Strahl reminded me that the rumours of my demise are premature. I'll be here until the end of the year, I hope, and I look forward to meeting again with the committee.
The Vice-Chairman (Mr. Scott): Thank you very much. I thank you all.
Mr. Yalden: Thank you.
The Vice-Chairman (Mr. Scott): The meeting is adjourned.
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