Bill C-16 introduces transgender protections but keeps Harper's damaging human rights legacy

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Last week, the Liberal government introduced Bill C-16, an Act to Amend the Canadian Human Rights Act and the Criminal Code of Canada to protect transgender individuals from discrimination and hate propaganda. The bill is almost identical to Bill C-279, a private member's bill introduced in 2012 by NDP MP Randall Garrison. The two bills seek to make very simple amendments to the Canadian Human Rights Act (CHRA) and the Criminal Code of Canada (Criminal Code): to provide protection from discrimination and from hate propaganda based on gender identity or expression.

The history and fate of the previous Bill C-279, together with prior amendments to the CHRA carried out by the Harper government in 2012 under Bill C-304, provide important insight into why the reintroduction of these amendments is so important -- but also how, through Bill C-16, the Liberal government has failed to take advantage of a crucial opportunity to undo Harper's damaging impact on the scope of equality rights protections available to Canadians under the CHRA.

The Canadian Human Rights Act and hate speech legislation in Canada

The Canadian Human Rights Act promotes equal opportunity and participation for all individuals by providing protection from discriminatory practices based on a number of prohibited grounds. The CHRA applies only to matters that fall within federal jurisdiction; therefore, broadly speaking, it would apply to federal government employees and services provided by federal departments or related agencies. Many Canadians may think that CHRA rights protections would not extend to them because of its limited application; however, because the CHRA applies to inter-provincial telecommunications facilities, including Internet communications, its impact is far-reaching given the importance of electronic communication in today's society.

As I wrote in July 2012, Bill C-304 amended the CHRA, entirely repealing section 13 of the Act, commonly referred to as the "hate speech" provision. That section stated that a person or group who engages in repeated communications through telecommunications facilities that would likely expose a person to hatred or contempt based on a prohibited ground of discrimination is engaging in discriminatory practices. 

The Harper government felt that this provision limited freedom of expression -- despite a clear decision by the Supreme Court that the section supported the aim of "restricting activities antithetical to the promotion of equality and tolerance in society," which meant these limits on freedom of expression were constitutional. The Harper government also took the perspective that the hate propaganda provision of the Criminal Code provided recourse for individuals targeted by hate speech. Section 13 of the CHRA was therefore unnecessary.   

Bill C-13: Delayed amendments to the Criminal Code   

At the time Bill C-304 came into force, Criminal Code provisions on hate propaganda did not provide protection for individuals targeted on the basis of sex, age and disability (things that were protected by the hate speech provision under the CHRA).  

It wasn't until November of 2013 that the Harper government got around to introducing legislation amending the Criminal Code to criminalize the inciting of violence against an identifiable group based on sex, age, and mental and physical disability. These amendments were part of several amendments to the Criminal Code directed towards addressing cyber-bullying. Including transgender individuals as a protected group was not included as part of this  legislation.   

Bills C-279 and C-16: Amendments to include protections for transgender people

Bill C-279 was introduced as the CHRA was being amended to remove protections from hate speech and the hate propaganda provisions of the Criminal Code were being expanded to cover hate propaganda based on sex, age and disability. Similar to Bill C-16, it proposed to add gender identity as a ground for protection under the CHRA and under the hate propaganda provisions of the Criminal Code. Bill C-279 was approved by the House of Commons in March of 2013, with 18 Conservative MPs voting in favour of the bill.    

The Senate Committee on Legal and Constitutional Affairs, however, insisted on an amendment exempting places like prisons, crisis centres, and public washrooms and change rooms from the bill's provisions. As Helen Kennedy of Egale Canada Human Rights Trust noted in response to the Senate committee's amendments:

"The human rights of transgender people must be protected in all spaces including public bathrooms and locker rooms. The amendment to Bill C-279 fuels discrimination against transgender individuals by making it seem like people have something to fear by sharing a bathroom with a transgender person, which of course they don't."  

The Senate committee amendments never made it back to the House of Commons for consideration before the election.

Which brings us to today. Bill C-16 is the first time the proposed amendments to CHRA and the Criminal Code to protect transgender individuals have been introduced by way of government bill and not via a private member's bill. Undoubtedly, this protection is long overdue. But does it go far enough in undoing the damaging legacy the Harper government left on the protection of equality rights in Canada?

The Criminal Code is now the only mechanism for addressing hate speech expressed through any form of telecommunications. The burden of proof under the Criminal Code is high; an offence must be proven beyond a reasonable doubt. The CHRA provides a lower, civil standard of proof, a standard that can provide protection to people who are the target of hate speech that may be very damaging, but does not meet the standard required by the Criminal Code. As the Canadian Bar Association (CBA) noted in their submission on the repeal of the hate speech provisions in the CHRA, the provision "protects minorities from psychological harm caused by the dissemination of racial views which inevitably result in prejudice, discrimination and the potential of physical violence."

The CBA stated that in repealing the hate speech provision, Parliament "failed both Canadian and the international community." The Liberal government has failed to take advantage of a key opportunity to address this failure.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

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