November 26, 2010
OP-ED Bill C-389
The bill would add the term “gender expression” to both the Canadian Human Rights Act and the Criminal Code. I do not believe that people commonly use this term. To my knowledge, no other country in the world has made “gender expression” a prohibited ground for discrimination or has included the term in the definition of “identifiable group” in its hate crimes provisions as a completely separate concept from “gender identity”.
C-389 would add “gender identity” and “gender expression” to the non-exhaustive Criminal Code list of aggravating circumstances requiring a judge to impose a harsher sentence. This would mean that a judge could impose a longer than normal sentence on someone who commits a crime motivated by hate or prejudice against persons belonging to these two groups. I don’t believe this would result in fair treatment under the law. Instead it would imply that prejudice against one ‘group’ (which has not yet been clearly defined) is somehow more offensive.
Also, as mentioned above the bill would add “gender identity” and “gender expression” to the list of prohibited grounds of discrimination in the Canadian Human Rights Act. This act already prohibits discrimination on grounds such as race, gender and disability in federal government employment and services.
I think it is important to note that the Canadian Human Rights Tribunal has already studied a number of complaints filed by transsexuals, and it found that these complaints were justified based on the ground of sex which means that transsexuals are already protected by provisions in federal human rights legislation, the tribunal followed the approach of human rights tribunals in British Columbia, Quebec and other provinces, which determined that discriminating against transsexuals is prohibited based on the current ground of sex. This interpretation was confirmed by the tribunals.
Given the above, I seriously question whether adding “gender identity” and “gender expression” to the Canadian Human Rights Act is really necessary.
Nor am I convinced that these grounds need to be included in the Criminal Code sentencing provision in subparagraph 718.2(a)(i), which currently lists various aggravating factors, such as evidence proving that: the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor.
Keep in mind that that list is not exhaustive. Judges already have the power to impose heavier sentences for hate crimes against transgender people when justified under the circumstances.
I also would hesitate to enshrine in legislation any further levels of infringement on Canadians' right to free speech.
As is often the case, a proposed change that may appear simple on the surface can, upon further study, turn out to be quite complicated and may produce unintended legal consequences. Until I am absolutely convinced that there is a real and dangerous gap in the Criminal Code and the Human Rights Act, I will not support C-389.
Leon Benoit, MP