Bill C-389, which would give trans Canadians explicit protection under the law, has made it through the House of Commons, but it’s going to be a long fight in the Senate. With government law-and-order bills dominating the committee schedule, it could be some time before the bill gets proper study – provided we don’t have an election first.
“We are now facing before the committee the arrival, fairly soon, of a slew of government bills that have worked their way through the hopper and are coming to us, and government bills take priority over private member’s bills,” says Liberal Senator Joan Fraser, who chairs the Senate legal and constitutional affairs committee.
While C-389 could possibly be sent to another committee, such as human rights or social affairs, the fact that it makes an amendment to the Criminal Code means it will almost certainly head to legal and constitutional affairs.
“It would go into the queue,” Fraser says.
Given the government’s tough-on-crime agenda, with its myriad justice bills working their way through the Order Paper, that could put C-389 at a distinct disadvantage.
“Sometimes the way it works in the process is there’s a little bit of a gap between disposing of all the government bills already referred to the committee and getting the next one, and we try to fit consideration of private members’ bills and special studies in there,” Fraser says.
Currently there is already one private member’s bill before the committee that has not yet had a single hearing, and C-389 would conceivably follow it, depending on what happens in the Chamber.
At present, the bill is awaiting second reading debate, but until a sponsor for the bill is chosen, it will sit there. As yet, NDP MP Bill Siksay, the bill’s author, has not found a sponsor – something that has earned him some background criticism from senators and MPs from all parties.
When Siksay does find a sponsor for the bill, almost certainly someone from the Liberal side, a critic will also be appointed from the government side.
“It will probably not be me, and that will be intentional because they know I want to move an amendment to the bill,” says lesbian Conservative Senator Nancy Ruth.
Nancy Ruth, who chairs the Senate human rights committee, plans to add in the category of “sex” as a grounds for discrimination in Section 318 (4) of the Criminal Code, to go along with gender identity and gender expression in the bill, which will close a gap in the protection of women from hate crimes.
The amendment, however, is not yet a certainty. It may yet be ruled beyond the scope of the bill, and Bloc MP Nicole Demers and Liberal MP Borys Wrzesnewskyj each have a private member’s bill on the Order Paper to add “sex” to Section 318 (4). Nancy Ruth is hopeful that Demers’ bill will make it to the Senate by the time Siksay’s bill reaches committee study, meaning the amendment would be unnecessary.
Liberal Senator James Cowan, the opposition leader in the Senate, does caution that amendments may tie the bill up in the quest for perfection when it at least addresses specific problems.
“I would be leery of seeing how we could improve this, because if we made an amendment that passed, it would then go back to the House of Commons,” Cowan says.
The second reading debate has also raised concerns that the government may be planning to defeat the bill outright, much as it did with Bill C-311, an NDP climate change bill, which was voted down at second reading. Nancy Ruth dismisses those fears.
“It’s a free vote; it was a free vote in the Commons, and it’ll be a free vote in the Senate,” Nancy Ruth says. “There will be some Liberals who vote for it and some who vote against it and same for the Conservatives. We don’t know what the numbers will be.”
She adds that if her amendment is passed, the bill may find even more support because Conservative senators would find it more difficult to vote against it and be considered anti-women.
“It would be very easy to say the Liberals will be liberal and the Conservatives will be conservative,” Fraser says. “But there are some staunch civil libertarians on the Conservative side, and there are some pretty conservative Liberals.”
In fact, Conservative Senator Linda Frum sits on the board of Egale Canada, and Conservative Senator Noel Kinsella, who is currently the speaker of the Senate, was responsible for getting the sexual orientation provisions of the Human Rights Act through the Senate.
Senator Cowan adds that his discussions prompt him to believe there is broad support for the bill among Liberal senators.
“The assumption that the Conservatives will kill it is simply from people who do not understand the process at all, or the function of a free vote,” Nancy Ruth says.
But some Liberal senators are cautioning that the government has not been kind to any private member’s bill in the Senate to date.
“Certainly the Senate has the right to amend bills that come from the House of Commons and has the right to defeat bills that come from the House of Commons, but what it doesn’t have the right to do is refuse to properly consider a bill that comes from the House of Commons,” Cowan says. “That’s what happened in C-311 – they delayed it and then they killed it before it could go to committee.”
Conservative leader in the Senate, Marjorie LeBreton, committed to not repeating the C-311 tactic on CBC Radio in January.
“I fully intend to adhere to the tradition of sending all bills to committee,” LeBreton told CBC’s The House. “There’s a legitimate role for the Senate in studying bills because, as you know, Senate committees do have a good reputation of properly hearing witnesses and listening to all sides of the arguments.”
When the bill does reach committee, Senator Fraser says that, unlike the Commons justice committee, where the bill passed in 10 minutes without hearing from witnesses, they will almost certainly give it further study.
“I would certainly like to hear from some transgendered people, and in all fairness, you have to hear also from opponents of the bill,” Fraser says. “But I think if the purpose of a committee study is to expose you to facts of opinions of which you were not aware, or of which you never really thought about, then in this case it would be particularly important to hear from transgendered people why they think a bill of this nature would be important.”
Senators have been receiving letters and emails on C-389 already, which Fraser believes will prompt the Senate to take a much closer look at the bill.
“Some of the mail is heartfelt on both sides, and I’ve had some very moving letters from transgendered people, and then some also moving – not hateful, necessarily – letters from people who oppose the bill,” Fraser says, adding that she feels many of the opposing letters are based on “pretty significant misinformation.”
Senator Cowan says that most of the letters he received before the bill passed the Commons were in opposition.
“When you read the emails, they were so bizarre you’d think, You’ve got to be crazy,” Cowan says. “But I would say 95 percent of the emails I’ve received since the bill passed have been favourable, and they’ve been more reasoned, more rational.”
Progressive Conservative Senator Elaine McCoy has also added her support to the bill when responding to these letters.
“While I am saddened we need this legislation in the first place, I intend to support Bill C-389 and hope that we will soon come to a place where all citizens are free to exercise their individual rights and freedoms without discrimination or violence,” McCoy says.
But the bill still has a long process ahead of it.
“Sometimes people get overly excited once a bill passes the House of Commons, and they think that’s it, the deal is done,” Cowan says. “Well, it isn’t done.
“The Senate is a different place, and there isn’t the ability to push things through the way you can in the House of Commons, so we’re not done with this yet, but I would hope that people would see it for what it is, and it’s a good way to deal with a part of discrimination which exists in our society.”
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