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Outgoing Letters and Public Statements

December 7, 2012

Dear Member of Parliament,

RE: The Legal Risk and Redundancy of Bill C-279

Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression), is currently before the House of Commons for study and debate. The amendment proposes to include “gender identity” and “gender expression” as prohibited grounds of discrimination in the Canadian Human Rights Act and amend the Criminal Code in regard to hate propaganda provisions.

While the intent of protecting others from hatred and discrimination is worthy, Bill C-279 is a legislatively inadequate and unnecessary proposal. The courts and human rights tribunals have already developed jurisprudence under existing human rights categories to protect people who are transsexual or transgendered.

When “sexual orientation” was read into the Canadian Charter of Rights and Freedoms by the Supreme Court of Canada and when Parliament was considering its addition to the Canadian Human Rights Act, consideration was given to a general term that would be broadly encompassing in similar fashion to the words already used in human rights legislation. Certainly, the parliamentary committee heard that the term “sexual orientation” was broad enough to include the issues of nature (born that way) or nurture (a result of environmental factors) in regard to one being heterosexual, homosexual or other sexual orientations.

To now suggest the need to specifically deal with transsexual and transgender individuals is like advocating that the term “religion” in the Canadian Human Rights Act is inadequate and therefore human rights legislation should identify specific denominations such as Baptists, Mennonites, Salvationists, and Pentecostals. Or that there would be the need to pursue “religious identity” and “religious expression” as separate identifiable grounds from “religion,” as such additional language would be comparable to what is proposed in Bill C-279.

The courts and tribunals have already developed jurisprudence under existing human rights categories to protect people who are transsexual or transgendered. This was recently confirmed in comments made by Ontario Human Rights Commission Chief Commissioner Barbara Hall at an October 3 Ottawa event and by Susheel Gupta, Acting Chairperson and Chief Executive Officer of the Canadian Human Rights Tribunal in his testimony before the Standing Committee on Justice and Human Rights on November 27.

The danger in adding unnecessary language to any statute, and particularly to human rights statutes, is that the new language is in need of interpretation. The proposal in Bill C-279 is to introduce “gender expression” and “gender identity” as undefined terms that will then be thrust before tribunals and courts for an interpretation that may or may not align with past understanding of the issue. The courts operate from a position that there must be a reason a legislature adds new words to legislation. The reason is usually assumed to be that the old language was somehow inadequate. And thus the quest begins for them to provide an adequate interpretation to the new language. This bill offers no certainty of understanding or interpretation in that it proposes adding undefined terms to the Canadian Human Rights Act and the Criminal Code. Such action has proven historically to be a dangerous gambit.

Parliamentarians are called upon to give full consideration to the potential consequences of such a vague amendment to the Canadian Human Rights Act and the Criminal Code, then to cast their vote responsibly against such amendment. The concern for sound public policy should not be misunderstood or misrepresented, just as no person – straight, gay or transgendered – is deserving of mistreatment or mischaracterization. The mistreatment intended to be addressed by the bill has been exposed as being already covered at law.

Sincerely,

Don Hutchinson
Vice-President, General Legal Counsel
The Evangelical Fellowship of Canada

Outgoing Letters

2011-present
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2005

EFC President Bruce J. Clemenger writes regular commentaries about public policy issues. The EFC magazine Faith Today often publishes articles and essays that examine such issues.

   
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