Bill C-98
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2nd Session, 35th Parliament, 45-46 Elizabeth II, 1996-97
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The House of Commons of Canada
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BILL C- |
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An Act to amend the Canada Evidence Act
and the Criminal Code in respect of
persons with disabilities, to amend the
Canadian Human Rights Act in respect of
persons with disabilities and other
matters and to make consequential
amendments to other Acts
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| Preamble
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Whereas the Parliament of Canada affirms
the dignity and worth of all individuals and
seeks to strengthen their right to make for
themselves the kind of life they wish to have
through the removal of barriers to their full
participation in society;
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Whereas for individuals and groups that are
disadvantaged identical treatment does not
always lead to equality, and positive measures
to remove discriminatory barriers may be
necessary to help to ensure equality and to
enable members of all groups to participate
equally in the workplace and in access to
goods, services, facilities and
accommodation;
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Whereas accommodating the needs of
persons with disabilities is particularly
important to ensure that they can be full
participants in and contributors to Canadian
society;
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And Whereas the Parliament of Canada is
committed to ensuring equal access to the
criminal justice system for persons with
disabilities;
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NOW, THEREFORE, Her Majesty, by and
with the advice and consent of the Senate and
House of Commons of Canada, enacts as
follows:
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PART 1 |
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AMENDMENTS RELATED TO PERSONS WITH DISABILITIES |
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| R.S., c. C-5;
R.S., c. 27 (1st
Supp.), c. 19
(3rd Supp.);
1992, cc. 1,
47; 1993, cc.
28, 34; 1994,
c. 44; 1995, c.
28
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Canada Evidence Act |
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1. Section 6 of the Canada Evidence Act is
replaced by the following:
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| Evidence of
person with
physical
disability
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6. (1) If a witness has difficulty
communicating by reason of a physical
disability, the court may order that the witness
be permitted to give evidence by any means
that enables the evidence to be intelligible.
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| Evidence of
person with
mental
disability
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(2) If a witness with a mental disability is
determined under section 16 to have the
capacity to give evidence and has difficulty
communicating by reason of a disability, the
court may order that the witness be permitted
to give evidence by any means that enables the
evidence to be intelligible.
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| Inquiry
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(3) The court may conduct an inquiry to
determine if the means by which a witness
may be permitted to give evidence under
subsection (1) or (2) is necessary and reliable.
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| Identification
of accused
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6.1 For greater certainty, a witness may give
evidence as to the identity of an accused
whom the witness is able to identify visually
or in any other sensory manner.
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| R.S., c. C-46;
R.S., cc. 2, 11,
27, 31, 47, 51,
52 (1st
Supp.), cc. 1,
24, 27, 35
(2nd Supp.),
cc. 10, 19, 30,
34 (3rd
Supp.), cc. 1,
23, 29, 30, 31,
32, 40, 42, 50
(4th Supp.);
1989, c. 2;
1990, cc. 15,
16, 17, 44;
1991, cc. 1, 4,
28, 40, 43;
1992, cc. 1,
11, 20, 21, 22,
27, 38, 41, 47,
51; 1993, cc.
7, 25, 28, 34,
37, 40, 45, 46;
1994, cc. 12,
13, 38, 44;
1995, cc. 5,
19, 22, 27, 29,
32, 39, 42;
1996, cc. 8,
16, 19, 31, 34
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Criminal Code |
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2. The Criminal Code is amended by
adding the following after section 153:
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| Sexual
exploitation
of person with
disability
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153.1 (1) Every person who is in a position
of trust or authority towards a person with a
mental or physical disability or who is a
person with whom a person with a mental or
physical disability is in a relationship of
dependency and who, without the consent of
the person with the disability, for a sexual
purpose, invites, counsels or incites the person
with the disability to touch, directly or
indirectly, with a part of the body or with an
object, the body of any person, including the
body of the person who so invites, counsels or
incites and the body of the person with the
disability, is guilty of
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| Definition of
``consent''
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(2) Subject to subsection (3), ``consent''
means, for the purposes of this section, the
voluntary agreement of the complainant to
engage in the sexual activity in question.
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| When no
consent
obtained
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(3) No consent is obtained, for the purposes
of this section, if
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| Subsection (3)
not limiting
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(4) Nothing in subsection (3) shall be
construed as limiting the circumstances in
which no consent is obtained.
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| When belief
in consent not
a defence
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(5) It is not a defence to a charge under this
section that the accused believed that the
complainant consented to the activity that
forms the subject-matter of the charge if
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| Accused's
belief as to
consent
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(6) If an accused alleges that he or she
believed that the complainant consented to the
conduct that is the subject-matter of the
charge, a judge, if satisfied that there is
sufficient evidence and that, if believed by the
jury, the evidence would constitute a defence,
shall instruct the jury, when reviewing all the
evidence relating to the determination of the
honesty of the accused's belief, to consider the
presence or absence of reasonable grounds for
that belief.
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3. The heading ``Mixed Juries'' after
section 626 of the Act is replaced by the
following:
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| Support for
juror with
physical
disability
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627. The judge may permit a juror with a
physical disability who is otherwise qualified
to serve as a juror to have technical, personal,
interpretative or other support services.
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4. Subsection 631(4) of the Act is replaced
by the following:
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| Juror and
other persons
to be sworn
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(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 and shall
swear any other person providing technical,
personal, interpretative or other support
services to a juror with a physical disability.
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5. Paragraph 638(1)(e) of the Act is
replaced by the following:
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6. The portion of section 649 of the Act
before paragraph (a) is replaced by the
following:
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| Disclosure of
jury
proceedings
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649. Every member of a jury, and every
person providing technical, personal,
interpretative or other support services to a
juror with a physical disability , who, except
for the purposes of
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7. The Act is amended by adding the
following after section 715.1:
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| Evidence of
complainant
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715.2 (1) In any proceeding relating to an
offence under section 151, 152, 153, 153.1,
155 or 159, subsection 160(2) or (3) or section
170, 171, 172, 173, 271, 272 or 273 in which
the complainant is able to communicate
evidence but may have difficulty doing so by
reason of a mental or physical disability, a
videotape, made within a reasonable time
after the alleged offence, in which the
complainant describes the acts complained of
is admissible in evidence if the complainant
adopts the contents of the videotape while
testifying.
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| Order
prohibiting
use
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(2) The presiding judge may make an order
prohibiting the use of the videotape except as
described in subsection (1).
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| R.S., c. H-6;
R.S., c. 31 (1st
Supp.), c. 32
(2nd Supp.);
1992, c. 22;
1993, c. 28;
1994, c. 26;
1995, c. 44;
1996, cc. 11,
14
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Canadian Human Rights Act |
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| 1996, c. 14,
s. 1
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8. Section 2 of the Canadian Human
Rights Act is replaced by the following:
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| Purpose
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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
opportunity equal with other individuals to
make for themselves the lives that they are
able and wish to have and to have their needs
accommodated , 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.
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9. Section 15 of the Act is renumbered as
subsection 15(1) and is amended by adding
the following:
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| Accommoda- tion of needs
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(2) For any practice mentioned in paragraph
(1)(a) to be considered to be based on a bona
fide occupational requirement and for any
practice mentioned in paragraph (1)(g) to be
considered to have a bona fide justification, it
must be established that accommodation of
the needs of an individual or a class of
individuals affected would impose undue
hardship on the person who would have to
accommodate those needs, considering
health, safety and cost.
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| Regulations
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(3) The Governor in Council may make
regulations prescribing standards for
assessing undue hardship.
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| Publication of
proposed
regulations
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(4) Each regulation that the Governor in
Council proposes to make under subsection
(3) shall be published in the Canada Gazette
and a reasonable opportunity shall be given to
interested persons to make representations in
respect of it.
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| Consulta- tions
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(5) The Canadian Human Rights
Commission shall conduct public
consultations concerning any regulation
proposed to be made by the Governor in
Council under subsection (3) and shall file a
report of the results of the consultations with
the Minister within a reasonable time after the
publication of the proposed regulation in the
Canada Gazette.
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| Exception
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(6) A proposed regulation need not be
published more than once, whether or not it
has been amended as a result of any
representations.
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| Making of
regulations
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(7) The Governor in Council may proceed
to make regulations under subsection (3) after
six months have elapsed since the publication
of the proposed regulations in the Canada
Gazette, whether or not a report described in
subsection (5) is filed.
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| Application
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(8) This section applies in respect of a
practice regardless of whether it results in
direct discrimination or adverse effect
discrimination.
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| Universality
of service for
Canadian
Forces
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(9) Subsection (2) is subject to the principle
of universality of service under which
members of the Canadian Forces must at all
times and under any circumstances perform
any functions that they may be required to
perform.
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PART 2 |
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OTHER AMENDMENTS TO THE CANADIAN HUMAN RIGHTS ACT |
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10. Section 4 of the Canadian Human
Rights Act is replaced by the following:
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| Multiple
grounds of
discrimina- tion
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3.1 For greater certainty, a discriminatory
practice includes a practice based on one or
more prohibited grounds of discrimination or
on the effect of a combination of prohibited
grounds.
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| Orders
regarding
discrimina- tory practices
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4. A discriminatory practice, as described in
sections 5 to 14.1 , 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.
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11. Subsection 9(3) of the Act is repealed.
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12. The portion of section 10 of the
English version of the Act before paragraph
(a) is replaced by the following:
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| Discrimina- tory policy or practice
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10. It is a discriminatory practice for an
employer, employee organization or
employer organization
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13. The Act is amended by adding the
following after section 14:
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| Retaliation
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14.1 It is a discriminatory practice for a
person against whom a complaint has been
filed under Part III, or any person acting on
their behalf, to retaliate or threaten retaliation
against the individual who filed the complaint
or the alleged victim.
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| R.S., c. 32
(2nd Supp.), s.
41, Sch., item
3
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14. (1) Paragraph 15(1)(d) of the Act is
replaced by the following:
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(2) Paragraph 15(1)(f) of the Act is
replaced by the following:
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15. The Act is amended by adding the
following after section 16:
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| Collection of
information
relating to
prohibited
grounds
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16.1 It is not a discriminatory practice to
collect information relating to a prohibited
ground of discrimination if the information is
intended to be used in adopting or carrying out
a special program, plan or arrangement under
subsection 16(1).
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16. Sections 20 to 22 of the Act are
replaced by the following:
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| Certain
provisions not
discrimina- tory
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20. A provision of a pension or insurance
fund or plan that preserves rights acquired
before March 1, 1978 or that preserves
pension or other benefits accrued before that
day does not constitute the basis for a
complaint under Part III that an employer,
employee organization or employer
organization is engaging or has engaged in a
discriminatory practice.
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| Funds and
plans
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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,
employee organization or employer
organization 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.
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| Regulations
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22. The Governor in Council may, by
regulation, prescribe the provisions of any
pension or insurance fund or plan, in addition
to the provisions described in sections 20 and
21, that do not constitute the basis for a
complaint under Part III that an employer,
employee organization or employer
organization is engaging or has engaged in a
discriminatory practice.
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17. Paragraph 23(a) of the Act is replaced
by the following:
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18. Section 25 of the Act is amended by
adding the following in alphabetical order:
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