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C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code - Bill to Amend—Third Reading


Hon. Serge Joyal: Honourable senators, before I have the opportunity to express to you and share with you my reflection in relation to Bill C-16, there's one thing I want to remind honourable senators of, and especially those among us who have been in this chamber for a certain period of time. It is 12 years ago, almost to the day, that we were debating the Civil Marriage Act. I remember that debate very well. I sponsored the bill, and the critic was former Senator St. Germain from British Columbia. As a matter of fact, the debate was quite long. Those of you who were in the chamber in those days will remember that we sat until July 20, so be patient, we still have a month to go.

In fact, the debate on Bill C-16 started almost to the day. I say that because I was reflecting on my notes and I thought that before I express my conclusion in relation to Bill C-16 there is something I want to say. I think this is linked with the debates we generally have in the chamber, which is a chamber whereby there are conflicting views to be expressed if we want to have a real debate on the merits and on the substance of an issue.

That's why, in a democratic kind of Parliament, there is an opposition and a government side, or there are pros or cons. The cons have to be as forceful in their arguments as those who support the measures. And what I like about our democratic form of organization is that when I enter this chamber I know that I can rely on the fact that there are people who are going to be supporting a strong, robust debate because the opposition is there.

I want to commend Senator Plett and other senators who have been part of this debate because on an issue that is so emotive and so personal because when we start talking about sex, be it heterosexual, lesbian, gay or transgender, everybody has a reaction because we all have a sexual life and sexual experience. When there is legislation — and I say this without a play on words — lifting the veil on this issue, well, you can see that there is friction. And I think that's normal, but it has to be done with respect towards others.

That's why I want to refer to the point made by Senator Plett in his remarks, when we heard witnesses at the Standing Senate Committee on Legal and Constitutional Affairs, Ms. Theryn Meyer and Professor Gad Saad, and I might have asked a question with a tone that seems to be on the basis of a reprimand, I want to assure you, and to assure Ms. Meyer and Professor Gadd that my intention was in no way to not respect their different opinions. I want to put that on the record so they can rely on this in the future to make sure we're clear on both sides.

I will remind honourable senators that the witness Meyer concluded her brief with the following:

If you truly care about trans and gender non-conforming people and our lives and livelihood, you will vote against Bill C-16.

In other words, the witness was asking me to vote against Bill C-16. Of course, I could not but realize that Bill C-16 essentially amends two statutes, which we all know; it amends the Canadian Human Rights Act and the Criminal Code. But of course what is not mentioned in the act is that when they amend the Criminal Code they don't in fact give the substance of the Criminal Code section being amended. And the section of the Criminal Code that is being amended is 318, titled "Advocating genocide."

My first reaction, when I was confronted with a witness who was telling me to vote against Bill C-16, was to ask this question: Are you asking me to vote against advocating genocide for transgender people? It is a very serious decision to take. You might have different opinions on the basis of the protection under the Canadian Human Rights Act. As Senator Martin has just said, you might think it is redundant or you might think it is already covered. Well, I think we can have a debate on this. It seems to be okay, but when you ask someone to vote against Bill C-16, the second part of Bill C-16 is advocating genocide, well, then, I pause and say, morally, before I do that I have to think that's very serious.

In my debate with the witnesses, if I ever appear to question the sincerity or the right position in which that witness tried to help us in reflecting on the bill, again I apologize for that, Senator Plett, and I have no problem saying it in front of all this chamber even though we were only 12 or 13 senators around the table.

That being said, honourable senators, I would like to have an exchange with you this afternoon on my thoughts about Bill C-16. Bill C-16 has a lot of impact on Canadian society. Bill C-16 goes much beyond the mere small percentage of Canadians who happen to be transgender, because it is a debate that calls upon the very principle on which our Canadian society evolves. It is a broader debate than just limited to the rights and protection of transgender people.

As you all know, Canada's character is that of a secular and pluralistic society and it is increasingly a multi-perspective country. We evolve, we multiply the identity, and we all try to make sure that the rights of one are not impinging on the rights of others. When we were a simple society, defined on the basis of Judeo-Christian values, a patriarchal society, it was very stable. We had the impression that's the way the world order would prevail for centuries.

Well, we're now in a kind of society that is defined by different approaches, and those elements of the definition of Canadian society are enshrined in section 1 of the Charter of Rights, where the Charter talks about a democratic society. What are the essential elements of our democratic society? The Supreme Court of Canada has defined the essence of what Canada is, and I quote from a 1986 decision of the Supreme Court called Oakes. Here is how the Supreme Court defined section 1 on that democratic society:

. . . respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity. . . .

I underline "cultural and group identity."

. . . and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter.

That's what we talk about when I say this debate is much bigger than the group of Canadians who are targeted or a group of people that we want to address in this bill. This bill puts on the whole of Canada the fundamental, foundational values on which this country evolved.


In my humble opinion, it's my personal conviction that if we are to maintain the social cohesion and the unity of this country, it is because we will always have that in mind. When we approach an issue as difficult or as sensitive and emotional as the condition or status of transgender people, we have to keep that in mind.

The second element I want to share with you, honourable senators, is a question that has been very well stated by a professor of the University of Ottawa, Jena McGill, in an article published last year in the Alberta Law Review, entitled, "`Now It's My Rights Versus Yours': Equality In Tension with Religious Freedoms." In other words, do I have to abandon my rights to have yours respected? That's the essential tension that exists in a society whereby section 15, the equality clause, guarantees the same level of dignity and opportunity to any group of Canadians, whatever their gender, their sex, their religion, their race, their background, all those distinctions that could pit one person against the other.

Because, of course, we hold different religious beliefs. Each one of us has his or her beliefs. In other words, we see the world according to a certain number of values, and we draw from those values a certain way of behaving, of acting, of putting emphasis on one way of doing things or not.

We are all motivated by our reading of the world, and when that fundamental issue is raised, as Senator Plett has very well put it, is it freedom of religion or freedom of expression against equality? When you have that kind of conflict, what are the principles that apply to resolve it?

That's why I think that this bill is important because — no doubt about it; I have absolutely no hesitation — it is going to end up in court. Last year, at this period of the year, when we were debating Bill C-14, medical assistance in dying, many of you certainly remember — I'm looking at our colleagues Senator Ogilvie and Senator Seidman, who were part of the special joint committee — that I told you that the ink will not be dry and it will be already in court. We learned in the paper this morning that a case has been launched in a Quebec court, and there was one in British Columbia. The Quebec government will soon refer to the Court of Appeal of Quebec a challenge of what is a "reasonable expectation of death." In other words, those issues are there. The reconciliation of my rights versus yours is something that is there and is dependent on those issues.

How does the court approach that kind of balancing of your rights versus mine? This is the key issue, and the Supreme Court of Canada has developed a very well-articulated system of questions.

The first one that the Supreme Court says — and it is the golden rule — is that there is no hierarchy of rights. All the rights that are in the Charter, from section 2 to section 15, including the linguistic rights — I'm looking at my colleagues Senator Tardif or Senator Cormier or Senator Gagné. I will not forget sections 16 and 23, linguistic rights, but let's think about the chunk of the Charter from sections 2 to 15. The court says that in all of those rights, there's no hierarchy. In other words, freedom of religion is not superior to the equality rights of section 15.

Of course, there are conflicts sometimes, and we have lived it with the Civil Marriage Act. I remember again, with an emotional memory of former Senator St. Germain, that the argument 12 years ago was, "You are going to force a municipal commissioner to marry people against their personal religious convictions, and you would impinge on the freedom of religion of subsection 2(a) of the Charter."

May I request five minutes?

The Hon. the Speaker pro tempore: Honourable senators?

Hon. Senators: Agreed.

Senator Joyal: Thank you, honourable senators. I get carried away. That's the first principle. There is no hierarchy of rights.

The second principle that the Supreme Court has well established is that no Charter right is absolute. In other words, freedom of expression is no more absolute than freedom of religion. As a matter of fact, freedom of expression has been limited if there is a cost to vulnerable members of society. It has been limited on the issue of pornography, for instance, or hate speech.

Freedom of expression, of course, is essential to democracy. As I say, we speak; that's why we debate. We all understand how important it is, but there is no absolute right. That's the second principle that the Supreme Court has come to very clearly, and I will mention some decisions of the court later on.

The third one, which is as much a principle, is that when we have to balance the rights, yours and mine, the court will have regard to the full context of the situation.

So when I was listening to, "You will compel me to address that person by ze, zir or a neutral pronoun," if it's done in the context of no intent to harm the person, no intent to vilify the person, no intent to raise detestation of the person, no intent to compel that person to prove his or her worth because of her gender expression, the context has to be taken into account. The fourth principle the court has put forward is that in the exercise of balancing the rights, the court has to determine the extent of the severity of the harm done or the limit put to the rights. Let's state the example of the municipal commissioner who is called to marry a couple who present themselves in a town hall or a city hall to get married. It is a decision of the Supreme Court that is very recent, 2012. It is not an old case. The court has balanced the rights and said that when you are confronted with two conflicting rights, the court will measure the impact. Does the exercise of the freedom impinge the core of the rights of one person versus a peripheral limit to the other right? In other words, the court will balance who is in a better position to maintain his or her right. If the municipal civil servant refuses to marry, well, then you state in front of everybody that those people have the right to marry, but they will not be able to exercise it.

On the other hand, the municipal civil servant who will be compelled to marry will not have to change his or her views in terms of his religious conviction, and it will be a minimal limit to his or her freedom of expression. That's what the court concluded in the Saskatchewan case that I just referred to. In other words, there is the core impact versus the peripheral impact.

I come back to the point raised during the debate we had. There are people who think, in their very strong intellectual conviction, that gay status can be cured. As you know, to be gay, before 1973, according to the psychiatric association, was to be sick. It was a mental disease. The medical and psychiatric science of the day all said you could be cured. The doctors would try to look into your past. Maybe you had a bad relationship with your parents. Your father was absent; your mother was dominating. All of the interpretations stemmed from this.


May I please finish?

The Hon. the Speaker pro tempore: Are senators ready for the question?

Senator Joyal: May I request one more minute?

The Hon. the Speaker pro tempore: One minute.

Senator Joyal: I am left with the impression of a dancer left with one leg in the air and the curtain falls. I'm grateful for your patience, honourable senators.

I think scientists can debate. The passage of this bill will not prevent those who hold the conviction — be they psychologists, doctors or any kind of profession — that gender identity is a social construction from continuing to research, debate, publish, animate and whatnot, as much as those who hold the view that you can be cured from being gay can continue to research and whatnot. That doesn't prevent it. It's when you wilfully stigmatize the person in front of you so that the person is outed and on the Internet they run after you and you become the object of vilification — that's where the balance between my rights and your rights stems. I think the court knows the answer very well.

Thank you.