Department of Justice

BACKGROUNDER

Canada Evidence Act and Criminal Code amendments to accommodate persons with disabilities

INTRODUCTION

In 1996, the Federal Task Force on Disabilities Issues, chaired by Andy Scott, M.P., held 15 forums from coast to coast to determine the federal role in the area of disability. One of the Task Force's recommendations was that "the Government of Canada should introduce amendments to the Criminal Code and the Canada Evidence Act to improve access to the criminal justice system for persons with disabilities."

Improvements to these laws formed part of the Justice agenda in 1994, when the Minister of Justice announced during the debate in reply to the Speech from the Throne that he would "introduce changes in the criminal justice system that would help persons with disabilities to participate fully on an equal basis."

The Redbook also stated that government efforts in the area of social policy would focus on the equality of all Canadians. The proposed amendments are evidence that the government is following through on these commitments.

PROPOSALS - CANADA EVIDENCE ACT

Two proposed amendments to the Canada Evidence Act aim to remove barriers to the participation of persons with disabilities in the justice system. The first provides for communication assistance for persons who have special communication needs. This might involve the services of a sign language or oral interpreter, apparatus such as a Bliss board or assistive listening devices (for example, an infrared device), or real-time captioning. The second proposed amendment permits auditory and tactile methods of identifying the accused to be admitted in court.

PROPOSALS - CRIMINAL CODE

Several amendments to the Criminal Code are proposed to improve access for persons with disabilities. These amendments respond to long-standing efforts by the disability community to achieve fuller access to and greater protection from the criminal justice system.

Videotaped evidence

The Code would be amended to allow persons with physical or mental disabilities to provide testimony through videotape. This would help those who have difficulty communicating. A judge would be able to restrict the release of the videotaped evidence.

Jury service

Amendments to a number of sections of the Code would encourage persons with disabilities to serve as jurors. They will ensure that a physical disability will not exclude a person from jury service if, with assistance, the person is capable of serving, and that persons providing support to a juror with a disability may not disclose jury deliberations. The amendments would also require any interpreter or other support person to be sworn.

Sexual exploitation

Another amendment to the Criminal Code would establish as an offence the sexual exploitation of persons with disabilities who are in a situation of dependency with respect to the offender. The offence would be a hybrid offence, punishable upon summary conviction for a term of imprisonment not exceeding eighteen months or upon indictment for a term not exceeding five years. The new provision would also provide that dependent adults could, nevertheless, consent to sexual activity when they so choose.

This provision, complemented by current Criminal Code provisions on sexual assault, helps to ensure comprehensive protection for the disability community against physical and sexual violence.

REASONS

More than four million Canadians -- 16 percent of the population -- have a disability. Under the Canadian Charter of Rights and Freedoms, persons with disabilities are guaranteed the right to equality before and under the law and to the equal protection and benefit of the law without discrimination.

The reality is, however, that the law has not always recognized the special needs or circumstances of people with disabilities. The proposed amendments help to ensure access to the criminal justice system for people with disabilities and recognize the right of persons with disabilities to participate more completely in Canadian society.

Department of Justice
April, 1997

Canadian Human Rights Act Amendments

The Government of Canada is committed to human rights legislation that ensures all Canadians enjoy the same protection from discrimination and the same opportunity to participate meaningfully in Canada's economic and social life.

The Canadian Human Rights Act (CHRA) governs employment and the provision of goods and services by the federal government and federally regulated businesses. These organizations employ about 11 per cent of the work force. The vast majority of small businesses, schools, and religious or cultural organizations fall under provincial or territorial laws and are not affected by the proposals.

1. DUTY OF ACCOMMODATION

Proposal: To prevent discrimination, a legal obligation or "duty" to accommodate the needs of people who are protected under the CHRA would be added to the Act.

Reason:

The amendment would ensure that people with different types of needs do not encounter unfair barriers and have, within reasonable limits, the same opportunities as other Canadians to find employment and take advantage of services. It would require employers and providers of services to make accommodation for the needs of people who are protected under the Act, except where this would cause undue hardship. This could include, for example, ensuring that a workplace is wheelchair-accessible.

2. HATE PROPAGANDA

Proposal: The CHRA already prohibits hate propaganda. Under the proposals, people protected by the Act who are the specific subject of telephone messages that promote hate would be eligible for compensation from the offender. The Canadian Human Rights Tribunal would also have the power to impose a financial penalty on the operators of hate messages.

Reason

Studies have shown that the incidence of hate crime is rising around the world. Today's technology allows hotlines carrying hate messages to be created with relative ease.

The government has committed itself to ensuring that such crimes will not be tolerated in Canada, and it believes that stronger measures are needed to deter organizations and individuals from establishing such lines. By allowing victims to apply for compensation and subjecting offenders to an immediate financial penalty, the law would impose stiffer measures on purveyors of hate while recognizing the needs of victims. It will not infringe on the general right of all Canadians to freedom of expression.

3. MULTIPLE GROUNDS

Proposal: The Act would recognize that individuals may suffer discrimination on a number of grounds at the same time.

Reason:

Experience has shown that individuals can suffer discrimination on a number of grounds. For example, a woman may experience discrimination in finding a job not only because she is a woman but also because of her race or disability.

The proposal would ensure that all incidents of discrimination are taken into account by a tribunal and that each ground of discrimination does not have to be considered separately. This reflects a more holistic and comprehensive approach to the resolution of human rights complaints.

Administrative and Other Changes

1. REPORTING RELATIONSHIPS

Proposal: The Canadian Human Rights Commission would report directly to Parliament.

Reason:

At present, the Commission reports through the Minister of Justice to Parliament. However, organizations that have a review or oversight responsibility comparable to that conferred by the CHRA must be seen to be independent and impartial. Other bodies similar to the Commission, such as the Auditor General, the Commissioner of Official Languages and the Information and Privacy Commissioners, report directly to Parliament. The amendment would bring the reporting relationship of the Commission into line with other, similar organizations.

2. PERMANENT TRIBUNAL

Proposal: A small, permanent human rights tribunal would be created to replace the existing system of ad hoc tribunals and review tribunals.

Reason:

At present, tribunal members are selected on a case-by-case basis from the Human Rights Tribunal Panel, which at present has about 50 members. Members of the panel hear cases on a part-time basis only. Concerns have been raised about this process on a number of fronts: differences in the level of experience of Panel members; the need for a more coherent body of decisions; the adequacy of ad hoc tribunals in dealing with the frequently complex issues of law that are involved in some complaints; and the time it takes to hear all the evidence in a case and obtain a decision.

A permanent tribunal with a core of full-time members would resolve these issues. It would provide greater efficiency in hearing cases and would create a consistent body of decisions and a solid base of expertise, because its members would hear more cases. It would also help to speed up the complaints process by reducing the number of levels of review and by ensuring that tribunal members are more readily available to deal with cases.

3. AWARDS

Proposal: The current maximum limit of $5,000 on compensation for pain and suffering or for willful or reckless discrimination would be raised to $20,000.

Reason:

At present, some provincial human rights laws have no limits on how much money can be awarded to a complainant, while others have limits ranging from $2,000 to $10,000. Raising the limit in the CHRA would ensure that the tribunal has the discretion it needs to award a fair amount to a complainant based on the circumstances of the case. For example, this would ensure that adequate compensation would be available in serious cases such as sexual or racial harassment.

Other Amendments

The legislative proposals include a number of other amendments that would make the CHRA more consistent with case law and with provincial and territorial human rights law and would eliminate some anomalies in the CHRA.