Bill C-98

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First Reading

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	SUMMARY
	This enactment amends the Canada Evidence Act, the Criminal Code and the Canadian Human Rights Act in order to confirm and strengthen the equality rights of persons with disabilities. The Canadian Human Rights Act is further amended to provide additional protections and to make the administration of the Act more efficient.
	The Canada Evidence Act is amended to allow for assistance for witnesses with communication disabilities and for witnesses to be able to use any sensory means to identify an accused.
	The enactment amends the Criminal Code to create an offence with respect to the sexual exploitation of persons with disabilities in a situation of dependency. It also amends existing provisions to allow certain witnesses with disabilities to use videotaped evidence and to allow more persons with disabilities to serve on juries.
	The amendments to the Canadian Human Rights Act will work to prevent discrimination against persons with disabilities within the federal sphere. A key amendment adds a provision that requires employers and service providers to accommodate the needs of people who are protected under the Act, except when that would cause undue hardship. Other amendments include the provision of monetary penalties for hate messages, the submission directly to Parliament of the annual report of the Canadian Human Rights Commission, the creation of the Canadian Human Rights Tribunal and increased awards for compensation for pain and suffering.
	EXPLANATORY NOTES
	Canada Evidence Act
	Clause 1: Section 6.1 is new. Section 6 reads as follows:
	6. A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible.
	Criminal Code
	Clause 2: New.
	Clause 3: Section 627 is new. The heading after section 626 reads as follows:
	Mixed Juries
	Clause 4: Subsection 631(4) reads as follows:
	(4) The clerk of the court shall swear each member of the jury in the order in which the names of the jurors were drawn.
	Clause 5: The relevant portion of subsection 638(1) reads as follows:
	638. (1) A prosecutor or an accused is entitled to any number of challenges on the ground that
	...
	(e) a juror is physically unable to perform properly the duties of a juror; or
	Clause 6: The relevant portion of section 649 reads as follows:
	649. Every member of a jury who, except for the purposes of
	Clause 7: New.
	Canadian Human Rights Act
	Clause 8: Section 2 reads as follows:
	2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an equal opportunity to make for themselves the lives that they are able and wish to have, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.
	Clause 9: New.
	Canadian Human Rights Act
	Clause 10: Section 3.1 is new. Section 4 reads as follows:
	4. A discriminatory practice, as described in sections 5 to 14, may be the subject of a complaint under Part III and anyone found to be engaging or to have engaged in a discriminatory practice may be made subject to an order as provided in sections 53 and 54.
	Clause 11: Subsection 9(3) reads as follows:
	(3) For the purposes of this section and sections 10 and 60, ``employee organization'' includes a trade union or other organization of employees or local thereof, the purposes of which include the negotiation, on behalf of employees, of the terms and conditions of employment with employers.
	Clause 12: The relevant portion of section 10 reads as follows:
	10. It is a discriminatory practice for an employer, employee organization or organization of employers
	Clause 13: New.
	Clause 14: (1) and (2) The relevant portion of section 15 reads as follows:
	15. It is not a discriminatory practice if
	...
	(d) the terms and conditions of any pension fund or plan established by an employer provide for the compulsory vesting or locking-in of pension contributions at a fixed or determinable age in accordance with sections 17 and 18 of the Pension Benefits Standards Act, 1985;
	...
	(f) an employer grants a female employee special leave or benefits in connection with pregnancy or child-birth or grants employees special leave or benefits to assist them in the care of their children; or
	Clause 15: New.
	Clause 16: Sections 20 to 22 read as follows:
	20. A provision of a pension or insurance fund or plan that preserves rights acquired prior to March 1, 1978 or that preserves pension or other benefits accrued prior to that time does not constitute the basis for a complaint under Part III that an employer is engaging or has engaged in a discriminatory practice.
	21. The establishment of separate pension funds or plans for different groups of employees does not constitute the basis for a complaint under Part III that an employer is engaging or has engaged in a discriminatory practice if the employees are not grouped in those funds or plans according to a prohibited ground of discrimination.
	22. The Governor in Council may, by regulation, prescribe the provisions of any pension or insurance fund or plan, in addition to those provisions described in sections 20 and 21, that do not constitute the basis for a complaint under Part III that an employer is engaging or has engaged in a discriminatory practice.
	Clause 17: The relevant portion of section 23 reads as follows:
	23. The Governor in Council may make regulations respecting the terms and conditions to be included in or applicable to any contract, licence or grant made or granted by Her Majesty in right of Canada providing for
	(a) the prohibition of discriminatory practices described in sections 5 to 14; and
	Clause 18: New.
	Clause 19: (1) The relevant portion of subsection 27(1) reads as follows:
	27. (1) In addition to its duties under Part III with respect to complaints regarding discriminatory practices, the Commission is generally responsible for the administration of this Part and Parts I and III and
	...
	(h) shall, so far as is practical and consistent with the application of Part III, endeavour by persuasion, publicity or any other means that it considers appropriate to discourage and reduce discriminatory practices referred to in sections 5 to 14.
	(2) Subsection 27(3) reads as follows:
	(3) A guideline issued under subsection (2) is, until it is subsequently revoked or modified, binding on the Commission, any Human Rights Tribunal appointed pursuant to subsection 49(1) and any Review Tribunal constituted pursuant to subsection 56(1) with respect to the resolution of any complaint under Part III regarding a case falling within the description contained in the guideline.
	Clause 20: The relevant portion of subsection 37(1) reads as follows:
	37. (1) The Commission may make by-laws for the conduct of its affairs and, without limiting the generality of the foregoing, may make by-laws
	...
	(e) prescribing the rates of remuneration to be paid to part-time members, members of a Human Rights Tribunal and any person engaged pursuant to subsection 32(2); and
	(f) prescribing reasonable rates of travel and living expenses to be paid to members of the Commission, members of a Human Rights Tribunal and any person engaged pursuant to subsection 32(2).
	Clause 21: Section 39 reads as follows:
	39. For the purposes of this Part, a ``discriminatory practice'' means any practice that is a discriminatory practice within the meaning of sections 5 to 14.
	Clause 22: (1) Subsection 40(4) reads as follows:
	(4) Where complaints are filed jointly or separately by more than one individual or group alleging that a particular person is engaging or has engaged in a discriminatory practice or a series of similar discriminatory practices and the Commission is satisfied that the complaints involve substantially the same issues of fact and law, it may deal with those complaints together under this Part and may request the President of the Human Rights Tribunal Panel to appoint a single Human Rights Tribunal pursuant to section 49 to inquire into those complaints.
	(2) The relevant portion of subsection 40(5) reads as follows:
	(5) No complaint in relation to a discriminatory practice may be dealt with by the Commission under this Part unless the act or omission that constitutes the practice
	...
	(b) occurred in Canada and was a discriminatory practice within the meaning of section 8, 10, 12 or 13 in respect of which no particular individual is identifiable as the victim; or
	Clause 23: The relevant portion of subsection 44(3) reads as follows:
	(3) On receipt of a report referred to in subsection (1), the Commission
	(a) may request the President of the Human Rights Tribunal Panel to appoint a Human Rights Tribunal in accordance with section 49 to inquire into the complaint to which the report relates if the Commission is satisfied
	Clause 24: The relevant portion of subsection 45(2) reads as follows:
	(2) When, at any stage after the filing of a complaint and before the commencement of a hearing before a Human Rights Tribunal in respect thereof, the Commission receives written notice from a minister of the Crown that the practice to which the complaint relates was based on considerations relating to the security of Canada, the Commission may
	Clause 25: New.
	Clause 26: The heading before section 48.1 and sections 48.1 to 53 read as follows:
	Human Rights Tribunal Panel
	48.1 There is hereby established a panel to be known as the Human Rights Tribunal Panel consisting of a President and such other members as may be appointed by the Governor in Council.
	48.2 The President of the Human Rights Tribunal Panel shall be appointed to hold office during good behaviour for a term of three years and each of the other members of the Panel shall be appointed to be a member of the Panel during good behaviour for a term not exceeding five years, but may be removed by the Governor in Council for cause.
	48.3 In the event of the absence or incapacity of the President of the Human Rights Tribunal Panel, or if there is no President, the Governor in Council may authorize a member of the Panel to act as President and a member so authorized, while so acting, has all the powers and may perform all the duties of the President.
	48.4 A President of the Human Rights Tribunal Panel as well as any member of the Panel whose term has expired is eligible for re-appointment in the same or any other capacity.
	48.5 The President of the Human Rights Tribunal Panel shall be paid remuneration and expenses for the performance of duties as President at the same rate as is prescribed by by-law of the Commission for a member of a Tribunal acting in the capacity of a Chairman thereof.
	Human Rights Tribunal
	49. (1) The Commission may, at any stage after the filing of a complaint, request the President of the Human Rights Tribunal Panel to appoint a Human Rights Tribunal, in this Part referred to as a ``Tribunal'', to inquire into the complaint if the Commission is satisfied that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted.
	(1.1) On receipt of a request under subsection (1), the President of the Human Rights Tribunal Panel shall appoint a Tribunal to inquire into the complaint to which the request relates.
	(2) A Tribunal may not be composed of more than three members.
	(3) No member, officer or employee of the Commission, and no individual who has acted as investigator or conciliator in respect of the complaint in relation to which a Tribunal is appointed, is eligible to be appointed to the Tribunal.
	(4) A member of a Tribunal is entitled to be paid such remuneration and expenses for the performance of duties as a member of the Tribunal as may be prescribed by by-law of the Commission.
	(5) Subject to subsection (5.1), in selecting any individual or individuals to be appointed as a Tribunal, the President of the Human Rights Tribunal Panel shall select from among the members of the Human Rights Tribunal Panel.
	(5.1) The President of the Human Rights Tribunal Panel may sit as a Tribunal or as a member of a Tribunal.
	(6) Subject to subsection (7), where a Tribunal consists of more than one member, the President of the Human Rights Tribunal Panel shall designate one of the members to be the Chairman of the Tribunal.
	(7) Where the President of the Human Rights Tribunal Panel is a member of a Tribunal consisting of more than one member, the President shall be Chairman of the Tribunal.
	50. (1) A Tribunal shall, after due notice to the Commission, the complainant, the person against whom the complaint was made and, at the discretion of the Tribunal, any other interested party, inquire into the complaint in respect of which it was appointed and shall give all parties to whom notice has been given a full and ample opportunity, in person or through counsel, to appear before the Tribunal, present evidence and make representations to it.
	(2) In relation to a hearing under this Part, a Tribunal may
	(a) in the same manner and to the same extent as a superior court of record, summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce such documents and things as the Tribunal deems requisite to the full hearing and consideration of the complaint;
	(b) administer oaths; and
	(c) receive and accept such evidence and other information, whether on oath or by affidavit or otherwise, as the Tribunal sees fit, whether or not that evidence or information is or would be admissible in a court of law.
	(3) Notwithstanding paragraph (2)(c), a tribunal may not admit or accept as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence.
	(4) Notwithstanding paragraph (2)(a), a conciliator appointed to settle a complaint is not a competent or compellable witness at a hearing of a Tribunal appointed to inquire into the complaint.
	(5) Any person summoned to attend a hearing pursuant to this section is entitled in the discretion of the Tribunal to receive the like fees and allowances for so doing as if summoned to attend before the Federal Court.
	51. The Commission, in appearing before a Tribunal, presenting evidence and making representations to it, shall adopt such position as, in its opinion, is in the public interest having regard to the nature of the complaint being inquired into.
	52. A hearing of a Tribunal shall be public, but a Tribunal may exclude members of the public during the whole or any part of a hearing if it considers that exclusion to be in the public interest.
	53. (1) If, at the conclusion of its inquiry, a Tribunal finds that the complaint to which the inquiry relates is not substantiated, it shall dismiss the complaint.
	(2) If, at the conclusion of its inquiry, a Tribunal finds that the complaint to which the inquiry relates is substantiated, it may, subject to subsection (4) and section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in that order any of the following terms that it considers appropriate:
	(a) that the person cease the discriminatory practice and, in order to prevent the same or a similar practice from occurring in the future, take measures, including
	(i) adoption of a special program, plan or arrangement referred to in subsection 16(1), or
	(ii) the making of an application for approval and the implementing of a plan pursuant to section 17,
	in consultation with the Commission on the general purposes of those measures;
	(b) that the person make available to the victim of the discriminatory practice, on the first reasonable occasion, such rights, opportunities or privileges as, in the opinion of the Tribunal, are being or were denied the victim as a result of the practice;
	(c) that the person compensate the victim, as the Tribunal may consider proper, for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice; and
	(d) that the person compensate the victim, as the Tribunal may consider proper, for any or all additional cost of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice.
	(3) In addition to any order that the Tribunal may make pursuant to subsection (2), if the Tribunal finds that
	(a) a person is engaging or has engaged in a discriminatory practice wilfully or recklessly, or
	(b) the victim of the discriminatory practice has suffered in respect of feelings or self-respect as a result of the practice,
	the Tribunal may order the person to pay such compensation to the vic tim, not exceeding five thousand dollars, as the Tribunal may deter mine.
	(4) If, at the conclusion of its inquiry into a complaint regarding discrimination based on a disability, the Tribunal finds that the complaint is substantiated but that the premises or facilities of the person found to be engaging or to have engaged in the discriminatory practice require adaptation to meet the needs of a person arising from such a disability, the Tribunal shall
	(a) make such order pursuant to this section for that adaptation as it considers appropriate and as it is satisfied will not occasion costs or business inconvenience constituting undue hardship, or
	(b) if the Tribunal considers that no such order can be made, make such recommendations as it considers appropriate,
	and, in the event of such finding, the Tribunal shall not make an order unless required by this subsection.
	Clause 27: Subsection 54(1.1) is new. Subsection 54(1) reads as follows:
	54. (1) Where a Tribunal finds that a complaint related to a discriminatory practice described in section 13 is substantiated, it may make only an order referred to in paragraph 53(2)(a).
	Clause 28: Sections 55 to 57 read as follows:
	55. Where a Tribunal that made a decision or order was composed of fewer than three members, the Commission, the complainant before the Tribunal or the person against whom the complaint was made may appeal the decision or order by serving a notice, in a manner and form prescribed by order of the Governor in Council, within thirty days after the decision or order appealed was pronounced, on all persons who received notice from the Tribunal under subsection 50(1).
	56. (1) Where an appeal is made pursuant to section 55, the President of the Human Rights Tribunal Panel shall select three members from the Human Rights Tribunal Panel, other than the member or members of the Tribunal whose decision or order is being appealed from, to constitute a Review Tribunal to hear the appeal.
	(2) Subject to this section, a Review Tribunal shall be constituted in the same manner as, and shall have all the powers of, a Tribunal appointed pursuant to section 49, and subsection 49(4) applies in respect of members of a Review Tribunal.
	(3) An appeal lies to a Review Tribunal against a decision or order of a Tribunal on any question of law or fact or mixed law and fact.
	(4) A Review Tribunal shall hear an appeal on the basis of the record of the Tribunal whose decision or order is appealed and of submissions of interested parties but the Review Tribunal may, if in its opinion it is essential in the interests of justice to do so, admit additional evidence or testimony.
	(5) A Review Tribunal may dispose of an appeal under section 55 by dismissing it, or by allowing it and rendering the decision or making the order that, in its opinion, the Tribunal appealed against should have rendered or made.
	57. Any order of a Tribunal under subsection 53(2) or (3) or any order of a Review Tribunal under subsection 56(5) may, for the purpose of enforcement, be made an order of the Federal Court by following the usual practice and procedure or, in lieu thereof, by the Commission filing in the Registry of the Court a copy of the order certified to be a true copy, and thereupon that order becomes an order of the Court.
	Clause 29: Subsection 58(1) reads as follows:
	58. (1) Where any investigator or Tribunal requires the disclosure of any information and a minister of the Crown or any other person interested objects to its disclosure, the Commission may apply to the Federal Court for a determination of the matter.
	Clause 30: (1) and (2) The relevant portion of subsection 60(1) reads as follows:
	60. (1) Every person is guilty of an offence who
	(a) fails to comply with the terms of any settlement of a complaint approved and certified under section 48;
	(b) obstructs a Tribunal in carrying out its functions under this Part; or
	(3) Subsection 60(2) reads as follows:
	(2) A person who is guilty of an offence under subsection (1) is liable on summary conviction
	(a) if the accused is an employer, an employer association or an employee organization, to a fine not exceeding fifty thousand dollars; or
	(b) in any other case, to a fine not exceeding five thousand dollars.
	(4) Subsection 60(3) reads as follows:
	(3) A prosecution for an offence under this section may be brought against an employer association or employee organization and in the name of that association or organization and for the purpose of the prosecution that association or organization shall be deemed to be a person and any act or thing done or omitted by an officer or agent of that association or organization within the scope of that officer's or agent's authority to act on behalf of the association or organization shall be deemed to be an act or thing done or omitted by the association or organization.
	(5) Subsection 60(5) reads as follows:
	(5) For the purposes of this section, ``employer association'' means any organization of employers the purposes of which include the negotiation, on behalf of employers, of the terms and conditions of employment of employees.
	Clause 31: Section 61.1 is new. Section 61 reads as follows:
	61. (1) The Commission shall, within three months after December 31 in each year, transmit to the Minister of Justice a report on the activities of the Commission under this Part and Part II for that year including references to and comments on any matter referred to in paragraph 27(1)(e) or (g) that it considers appropriate.
	(2) The Commission may, at any time, transmit to the Minister of Justice a special report referring to and commenting on any matter within the scope of its powers, duties and functions where, in its opinion, the matter is of such urgency or importance that a report thereon should not be deferred until the time provided for transmission of its next annual report under subsection (1).
	(3) The Minister shall cause any report transmitted to the Minister pursuant to this section to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the day the Minister receives it.
	Employment Equity Act
	Clause 36: (1) The definition ``Panel'' in section 3 reads as follows:
	``Panel'' means the Human Rights Tribunal Panel established under section 48.1 of the Canadian Human Rights Act;
	(2) New.
	Clause 37: Subsections 27(1) and (2) read as follows:
	27. (1) An employer to whom a direction is issued pursuant to subsection 25(2) or (3) or 26(1) may make a request to the President of the Panel for a review of the direction
	(a) in the case of a direction issued pursuant to subsection 25(2) or (3), within sixty days after the day on which it is issued; and
	(b) in the case of a direction issued pursuant to subsection 26(1), within thirty days after the day on which it is issued.
	(2) Where the Commission is of the opinion that an employer has failed to comply with a direction issued by the Commission, the Commission may apply to the President of the Panel for an order confirming the direction.
	Clause 38: (1) Subsections 28(1) to (7) read as follows:
	28. (1) Where an employer makes a request under subsection 27(1) or the Commission makes an application under subsection 27(2), the President of the Panel shall establish an Employment Equity Review Tribunal to consider the request or application.
	(2) The President of the Panel shall appoint a Tribunal consisting of one member of the Panel, but the President of the Panel may appoint a Tribunal of three members if the President considers that the complexity or precedential significance of the request or application requires a Tribunal of three members.
	(3) The President of the Panel shall, in appointing members of the Tribunal, take into consideration their knowledge and experience in employment equity matters.
	(4) Where a Tribunal consists of more than one member, the President of the Panel shall designate one of the members to preside over the hearings of the Tribunal.
	(5) The members of a Tribunal shall be paid such remuneration as may be fixed by the Governor in Council.
	(6) Members are entitled to be paid travel and living expenses incurred in carrying out duties as members of the Tribunal while absent from their places of residence, but the expenses must not exceed the maximum limits authorized by Treasury Board directive for employees of the Government of Canada.
	(7) The President of the Panel may engage and, subject to the approval of the Treasury Board, fix the remuneration of persons having technical or special knowledge to assist or advise a Tribunal in any matter.
	(2) Subsection 28(9) reads as follows:
	(9) The President of the Panel may make rules governing the practice and procedure of Tribunals.
	Clause 39: Subsections 38(2) and (3) read as follows:
	(2) Where the Minister receives a written application, the Minister shall send a copy of the application to the President of the Panel.
	(3) Where an employer who is issued a notice of assessment of a monetary penalty fails to exercise one of the options set out in subsection (1) within the period referred to in that subsection, the Minister shall send a copy of the notice of assessment to the President of the Panel.
	Clause 40: The relevant portion of subsection 39(1) reads as follows:
	39. (1) On receipt of a copy of a written application or a copy of a notice of assessment, the President of the Panel shall establish a Tribunal consisting of one member selected from the Panel to review the assessment and shall