The Power of Perspectives

The Canadian Bar Association

Kim Covert

Bill C-16: Once more unto the breach

May 18 2016 18 May 2016


Justice Minister Jody Wilson-Raybould introduced Bill C-16 on Tuesday, a piece of proposed legislation that will, if passed, amend the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination and amend the Criminal Code to “extend the protection against hate propaganda set out in that Act to any section of the public that is distinguished by gender identity or expression and to clearly set out that evidence that an offence was motivated by bias, prejudice or hate based on gender identity or expression constitutes an aggravating circumstance that a court must take into consideration when it imposes a sentence.”

It’s not the first time that this kind of legislation has been tabled in Parliament – in fact, it’s the seventh, over the course of a decade – but it’s the first time that a sitting government has done so, which increases the likelihood that something will actually be accomplished this go-round.

Prime Minister Justin Trudeau made his government’s intentions clear in the Justice Minister’s mandate letter last fall, setting as one of her priorities to “introduce government legislation to add gender identity as a prohibited ground for discrimination under the Canadian Human Rights Act, and to the list of distinguishing characteristics of ‘identifiable group’ protected by the hate speech provisions of the Criminal Code.

The CBA has for years been promoting the inclusion of gender identity and expression as prohibited grounds of discrimination. In 2010 CBA Council passed a resolution urging provincial, federal and territorial governments to “expressly protect transgender individuals from hate crimes and discrimination.” The association made numerous appeals to the previous government with regard to Bill C-279, a private member’s bill introduced by NDP MP Randall Garrison that attempted to do the same thing as Bill C-16. It became known as the “bathroom bill” when Canada had its own North Carolina moment – a Senate committee added amendments that would restrict the use of public washrooms and changing rooms.

SOGIC and the Equality Committee wrote in a letter sent to a number of MPs:

Opposition to Bill C-279 appears to rest primarily on a misapprehension of existing human rights law and criminal provisions. Assertions that legal protections for transgender persons would allow male sexual predators to invade women’s washrooms and change rooms wilfully ignores the fact that nothing in the proposed legislation would detract from existing criminal prohibitions against voyeurism and sexual assault. Prevalent discriminatory mischaracterizations of the proposed legislation provide further compelling evidence for why it should be passed.

On Tuesday SOGIC Co-Chair Nicole Nussbaum (pictured above) and Equality Committee Chair Mark Berlin joined activists from across the country in the gallery when Bill C-16 passed its first reading in the House. Garrison, urged the government to “guarantee” that the bill would pass the Senate this time.

 In a 2013 letter to then-Senate leader Marjory LeBreton, then-CBA President Robert Brun wrote:

“… emerging data indicate that human rights violations and acts of violence ranging from verbal abuse to physical and sexual assault are perpetrated daily against transgender people.

Although gender identity is currently read in to existing human rights legislation, there remains a perception of uncertainty in the law, leading to a greater chance of violation as well as unnecessary and costly litigation. Implicit protections provide a poor legal foundation for censure and condemnation of hate-motivated violence, public education and prevention of human rights abuses.

The CBA applauds the government for tabling Bill C-16, which when passed, will make those implicit protections explicit.



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