Proceeding of the Standing Senate Committee on
Human Rights

Issue No. 40 - Evidence - Meeting of April 3, 2019


OTTAWA, Wednesday, April 3, 2019

The Standing Senate Committee on Human Rights met this day at 11:30 a.m. to examine and monitor issues relating to human rights and, inter alia, to review the machinery of government dealing with Canada’s international and national human rights obligations.

Senator Jane Cordy (Deputy Chair) in the chair.

[English]

The Deputy Chair: Good morning, everyone. Welcome to everybody. I would like to begin by acknowledging that we are meeting on the unceded traditional lands of Algonquin peoples.

My name is Jane Cordy from Nova Scotia, and I am one of the deputy chairs of this committee. I now invite my fellow senators to introduce themselves.

Senator Boyer: Yvonne Boyer, Ontario.

Senator Hartling: Nancy Hartling, New Brunswick.

Senator Pate: Kim Pate, Ontario.

The Deputy Chair: Today, under the committee’s general order of reference, we are studying the forced and coerced sterilization of persons in Canada, particularly related to Indigenous women. With the limited time before the end of the Forty-second Parliament, our committee is launching a preliminary investigatory study to uncover the scope of the problem and identify other people who may have been affected by forced sterilization. We expect to release a short report with recommendations for further study later this spring.

In the first hour this morning we are going to hear from Alisa Lombard, Lawyer and Partner, Semaganis Worme Lombard. She is lead counsel for a class action lawsuit on behalf of women in Saskatchewan who were coerced or forced to be sterilized.

We also have Dr. Karen Stote, Author and Assistant Professor, Women and Gender Studies Program, Wilfrid Laurier University. She is the author of An Act of Genocide: Colonialism and the Sterilization of Aboriginal Women.

Each of our witnesses has been asked to make a five-minute opening statement and then we shall have questions. Ms. Lombard, we’ll start with you.

Alisa Lombard, Lawyer and Partner, Semaganis Worme Lombard, as an individual: Thank you for inviting me to present today on behalf of my clients. I would like to acknowledge the land on which we gather and express gratitude to the Anishinaabe Nation and you, honourable senators, for welcoming us today, for paying attention to this important issue, for being open minded and for listening to the voices of the women who have survived forced sterilization, keeping in mind that some women have passed on.

I represent Indigenous women in a putative class action in Saskatchewan and other Indigenous women in other provinces alleging similar experiences. We have been contacted by dozens of women reporting they have been forcibly or coercively sterilized in publicly funded and administered hospitals. When there is a spike in public attention in the matter, more women come forward.

First, there are no words to convey the amount of pain and suffering my clients survived at having been robbed of their sacred ability to carry life, to give birth, to care for their child, to pass on their knowledge and culture, and to watch children in the number of their choice grow and become parents themselves. It is important to my clients that you, honourable senators, put their lived experience at the centre of your study.

Wealth is life, children, family and culture for my clients. The decision on whether to gain in this wealth was stolen from them and we must all remember that in our work.

Many of the women who have reached out did not know they had rights or that they had the choice. Some didn’t know that under Canadian law the doctors, nurses and government had no right to make decisions about their fertility for them. They didn’t know that they have, if equally benefiting from the law, complete bodily autonomy over any and all decisions relating to procedures affecting their reproductive capacity. It is critically important that women know what their rights are.

In the few moments I have today, I will share the stories of some women, further to their instruction and with their consent to do so. I have condensed the stories as much as possible without risking the exclusion of critical experiences and information.

Liz is an Ojibwa women from northern Ontario. She reports being pregnant with her third child at approximately 20 years old in the late 1970s when child and family services told her, in her words and I quote: “You might as well abort the baby because if you have it we are going to take it anyways.” After a late-term abortion, she was also sterilized without proper and informed consent. Her body bears the physical scars of the unwanted abortion and sterilization to this day.

Morningstar is a Dene woman who reports having been subject to the forcible termination of a late-term pregnancy at the age of 14 which also resulted, as she later discovered, in the removal of her right ovary and fallopian tube. She had a son a couple of years later, but a tubal pregnancy in the right tube at the age of 19 left her infertile. She is primarily concerned with what was done to the child they took from her and that this happened to her when she was a minor child herself. Over 40 years later, this experience continues to impact her life on a daily basis. She is a strong advocate for the specific criminalization of forced sterilization.

S.A.T. is a Cree woman who gave birth naturally to her sixth child in Saskatoon in 2001. When presented with a consent form for her sterilization, S.A.T. reports hearing her late husband exclaim, and I quote: “I am not — expletive — signing that” before he stormed out of the hospital, and as she was wheeled into the operating room over her protests. She tried to wheel herself away from the operating room, but the doctor wheeled her right back in the direction of the same operating room. She repeatedly said, “I don’t want this,” as she cried and while the nurses administered the epidural. When she was in the operating room, she kept asking the doctor if he was done yet. Finally, he said, “Yes. Cut, tied and burnt. There, nothing is getting through that.” S.A.T. is also a strong advocate for the specific criminalization of forced sterilization.

Another woman reports a social worker holding her newborn baby as the new mother was pressured into having a tubal ligation. The woman reports the social worker inching closer and closer to the door of the hospital room when she said she didn’t want to undergo the procedure. Eventually she capitulated.

D.D.S. is a 30-year-old Nakota woman who was scheduled to have a cesarean section to deliver her third child last December, a little under four months ago, at a hospital in Moose Jaw, Saskatchewan. Her regular doctor was unavailable and referred her to his colleague to do the C-section. She met with that doctor for the first time two weeks prior to her operation in an emergency room where she had gone to be examined as a result of a fall she had that day. She reports having a difficult time understanding the doctor due to his heavy foreign accent. She wanted more children and does not recall any conversation about a tubal ligation at this time on November 29, 2018. She had not inquired about and did not want a tubal ligation. To be clear, she wanted more children.

On December 13, 2018, and immediately before the administration of her epidural, the attending doctor interrupted her discussion with the anesthesiologist in an abrupt and aggressive manner. Such manner was described by D.D.S., as well as her partner who was present, as demanding that she sign a consent form for the operation. D.D.S. noticed that a tubal ligation was also listed on the consent form at that time, which the doctor had not mentioned. He remained in her private space the entire time waiting for her to sign. She believed she had no choice but to sign. She knew nothing of the risks, nothing of the consequences, and nothing of the other birth control options available to her, because the doctor had never disclosed them. She needed a tubal ligation, he said, as she was prepared to deliver the baby and have her spine punctured to administer medication.

D.D.S. believes this was the first time a tubal ligation had been raised with her. She wished to have more children, but was nonetheless sterilized immediately upon her newborn baby entering the world. She was and remains devastated and immediately began investigating reversal options from her hospital bed before she was discharged. Her partner reports the doctor was very aggressive during the C-section. A review of her medical records, created by a number of different medical professionals, repeatedly refer to her race, the number of children she had, the number of pregnancies she’d had, referring to miscarriages that were characterized as abortions, her employment and her marital status.

This happened less than four months ago. Her beautiful daughter has yet to cut teeth and D.D.S. has yet to physically heal from her treatment.

Honourable senators, D.D.S. was sterilized without proper and informed consent after the United Nations Committee Against Torture issued its recommendations to Canada and over a year after a statement of claim was filed in this matter. D.D.S.’s forced sterilization was foreseeable and was preventable. D.D.S.’s unwanted sterilization falls squarely at the feet of those who were in a position to make a change and had notice of this heinous practice and yet chose not to do anything.

When you examine the forced and coerced sterilization of Indigenous women, honourable senators, remember these women and their lived experiences. We respectfully ask that you put them at the centre of your understandings, your analysis and your proposed solutions. Thank you.

The Deputy Chair: Thank you very much, Ms. Lombard. I want to tell people that you are the mother of a seven-week-old baby and you’re very courageous and strong to come here and present to our committee today. Thank you for that.

Karen Stote, Author and Assistant Professor, Women and Gender Studies Program, Wilfrid Laurier University, as an individual: Thank you for having me today and for your attention to this issue. I come here with about 10 years of history of researching and thinking about the coerced sterilization of Indigenous women in Canada. I am encouraged to see that Indigenous experiences are slowly being acknowledged, including by this committee, so thank you.

Though I need to qualify, I’m cautiously optimistic and this caution is based on my reading of history and the records of previous governments who have had opportunities to act, but instead have sought to minimize allegations and avoid accountability, rather than approach the issue with the openness and honesty it requires.

The coerced sterilization of Indigenous women has taken place since the 1930s, under what is often referred to as eugenic legislation. But it also took place outside of this legislation, including in federally operated Indian hospitals across Canada. The documents I examined reveal that over 1,000 Indigenous women were sterilized over a 10-year period up until the early 1970s. Although these documents are only partial, they show there was a loosening of guidelines on when sterilizations could be performed, that consent forms were inadequate, and that interpreters were not always used. They also show a climate of racism and paternalism leading to the view that sterilization was for some women’s own good.

This trend has continued since the 1970s under the banner of family planning. As Alisa has stated, dozens of women have come forward, alleging forms of coercion and systemic racism, resulting in their sterilization without full prior and informed consent as recently as 2018.

Other individuals have experienced coerced sterilization in Canada, but Indigenous experiences need to be understood within their own unique context and unique actions are needed to address this issue. This could include things like the implementation of immediate and tangible policies that outline how services are to be provided and clear consequences for when these are not followed, as well as culturally grounded supports for Indigenous women who are navigating decision making in Western institutions. I have submitted all my recommendations in my written brief.

For now I want to highlight that for Indigenous peoples systemic change is also needed to the relations that continue to fundamentally shape every interaction Indigenous women have with Canadian institutions. It’s important to remember that the coerced sterilization of Indigenous women is connected to colonialism and is one of the many forms of violence experienced by Indigenous women in Canada. The practice is consistent with how other medical services have sometimes been offered to Indigenous peoples as attempts to control their bodies while criminalizing Indigenous health and reproductive practices. For Indigenous women to be able to freely choose Western medical options, fully supported Indigenous options created by and under the control of Indigenous peoples need to be viable alternatives.

Coerced sterilization destroys the connection between Indigenous women and their peoples, while reducing the number of those to whom the federal government has obligations. It terminates the legal line of descendants able to claim Indigenous or treaty rights and title to lands. Within this context, coerced sterilization is not only a human rights violation but also an act of genocide. So I’m left wanting to ask questions such as: Is there an internal paper trail, including cabinet documents, that would either substantiate or refute this charge? What’s the full extent to which government knew or knows about the coerced sterilization of Indigenous women? Who performed all of these operations and who approved them? Where are the documents and where is the data? Where are those who are criminally responsible, either directly or indirectly? Why has the government failed to act on this information up until now?

Victims of coerced sterilization deserve an open fund to be made available to assist them in dealing with this violation and its continued impact in their lives, but I want to highlight that gathering the experiences of these women, as important as they are, will not establish answers to these broader questions. With all due respect, I want to reiterate that until government responds with the transparency and humility required to fully investigate this issue, and until conditions of colonialism are ended and Aboriginal peoples are returned lands, resources and the freedom to meet their own needs in their own ways without stipulations, we will be falling short.

My hope is that Indigenous women aren’t asked to share their experiences of violence yet again without getting this systemic change in return.

Thank you very much for listening.

The Deputy Chair: Thank you very much to both of you for your presentations, which were excellent.

Senator Boyer: I find it absolutely shocking that we are still having sterilizations performed without consent in Canada, particularly when we have had the United Nations being very vocal about it. It has been in the House of Commons and in the news for many months now, many years now, and I find it particularly shocking that we have heard about another young woman who has been sterilized against her will.

Thank you both for all of the work you do in this area and thank you for coming today with some recommendations and some ideas on how we can move forward.

Ms. Lombard, I have a question for you. You have advocated for the criminalization of forced and coerced sterilization as a way forward. Why do you believe this will solve a systemic issue such as this, particularly given Indigenous peoples’ mistrust of the system? Do you have other legislative recommendations that you think may be applicable to assist in this area?

Ms. Lombard: Thank you for your question. Our advocacy for specific criminalization of forced sterilization really comes from our clients. After their experiences, they have consistently asked why is it that nobody is punished? Why is it that I live this way and this person walks free and there are no repercussions whatsoever?

First, in terms of the bigger picture, the reason for which we are advocating for criminalization is because that’s what the women want. Second, I do believe sincerely that it will have the immediate effect of deterring the practice at the very least.

So, yes, the Criminal Code does contain particular provisions that deal with aggravated assault and assault, et cetera. The trouble is we have not been able to identify a single instance where a doctor, a nurse or someone involved in these practices has been charged, never mind convicted. Clearly, those provisions don’t seem to be specific enough.

In international law, this is one of the foremost recommendations and I do believe the United Nations Committee Against Torture recommended that Canada consider the specific criminalization of forced sterilization precisely to prevent the practice from occurring.

Will it eradicate the practice? No, I don’t think it will. I don’t think that it will solve the issue. I think it is a tool among many that we must consider to solve this systemic problem. Of course, systemic problems require systemic responses and we have used specific criminalization, my clients use specific criminalization as a component of that systemic change.

Senator Boyer: We recently heard in the news that the RCMP did a search of their records for anybody who had registered any complaints about being coerced or sterilized against their will and they didn’t find any. Does that surprise you and why?

Ms. Lombard: It doesn’t surprise me because complaints would have been made to local police forces. I can confirm that one of my clients did make a complaint to a local police force months ago. So clearly, there is a disconnect between the RCMP and any type of local police force.

The status of that complaint I don’t know, but I can confirm that the complaint was made in writing and was filed before summer I believe.

Senator Wells: Thank you both for coming here. I have to say that I’m shocked that this still occurs. I’m shocked that it has occurred, but I’m shocked that it still occurs. I thank you for the work you are doing on this.

Also, I want to thank you, Senator Boyer, for the important work you have done on this.

I have a few questions, because I profess I don’t know a lot about this topic.

You have mentioned, Ms. Lombard, proper and informed consent. It suggests that there was something said, but it wasn’t proper and informed. Can you tell me what proper and informed consent should look like or is?

Ms. Lombard: From my perspective, and I believe the law’s perspective, proper and informed consent contains four pillars. The first is capacity. The person involved in this transaction, if you will, must have the capacity to consent. There can’t be too many stressors. This person cannot be under the effects of medication, for example. Childbirth, post-administration of an epidural and active labour — even a few weeks leading into active labour — we might say that things aren’t the way that they usually are.

The second component is that there must be full disclosure of the risks, consequences and other birth control options. That constitutes the doctor’s obligation to disclose that information, and I do not believe — though I would have to check to be absolutely certain — that obligation can necessarily be discharged to or delegated to another entity, person or professional.

Third, the patient has to be afforded the proper time, in the appropriate environment and atmosphere, to consider the information that’s been imparted to them. They have to be able to think about it, ask questions, come to it again later and have a conversation.

Fourth, proper and informed consent means that there is no coercion. That means there is no preference of one particular birth control option, for example, over another. There is simply a presentation of such options.

This does not mean that there are not particular choices that may or may not be medically advisable, but proper and informed consent, further to our law, means that if a person is facing the risk of, for example, death in the case of having another child, if they choose to have another child, that is their risk to face. Is it a risk that everyone would take? Of course not, but some might and it’s theirs to take.

So proper and informed consent involves those four pillars.

Senator Wells: Could you educate me a little more? Is this procedure — when there is not proper and informed consent — is this often done complementary to childbirth?

Ms. Lombard: In most cases.

Senator Wells: It would appear to me that it would almost be impossible for there to be sober second thought or grave consideration during and after childbirth. It’s often a time, I imagine, when there is not that kind of reflection; you have other things on your plate.

Ms. Lombard: Thank you, Senator Wells. That’s one of our primary points.

Senator Wells: I have another question. When this procedure is proposed, assuming it is, what’s typically told that doesn’t reach the level of proper and informed? What’s typically said? “We are just going to do this,” or is nothing said?

Ms. Lombard: There are variances in the circumstances. Close to 100 women have contacted us, so the events don’t always happen in the same way. Given the five examples I shared, in some instances, there was no disclosure of risks, consequences and options, and no consent form is signed. It was, “This is going to happen to you whether you like it or not.” In other circumstances it’s a matter of “You have to do this. It’s what’s best for you;” or, “The doctor doesn’t want you to leave before you do it.” “You have had enough children. Don’t you think you should consider this?” “We think it’s a good idea for you to do this.”

In other situations, “It’s reversible, so if you change your mind later, we can have another discussion about it, and then perhaps if your circumstances have changed, we can talk about reversing it.” That’s one thing I’ve heard, as though it’s a negotiation, which it is not.

Senator Wells: That’s really interesting. Is this practice generally occurring among lower socioeconomic people — First Nations, rural people, and people with mental health issues? Are there categories that we could identify after the fact, that would go, “Yes, this is clearly for a ‘targeted population,’” for want of a better term?

Ms. Lombard: In terms of who has contacted us, it is primarily Indigenous women, largely First Nations women and some Metis women. A review of the records and historical practices surrounding this issue would reveal that the practice was and perhaps remains prevalent in Inuit communities in the North.

I would say that the vast majority of the people who are impacted by this practice would be Indigenous peoples.

Senator Wells: Thank you.

Finally, would the legal or legislative mitigations be federal or provincial?

Ms. Lombard: That’s an interesting question. I think a complement of both would be required.

The Deputy Chair: I’ll put you on the second round, Senator Wells.

Senator Wells: I know we can make changes through laws, but we can also make changes by shining a light, like we are doing now.

Senator Pate: Thank you, Senator Boyer, for bringing forward this important study. I share Senator Wells’ commendation. And thank you, both of you, for all the work you are doing.

I have a multi-part question for both of you, although some of it will be more particularly for one than the other.

In terms of the numbers, you just said you have about 100 women who have come forward so far in the class action. Picking up on Senator Wells’ question, do either of you have any idea of the scope we are looking at? In addition to Indigenous women, are there other women coming forward? Through media attention on this issue, we are hearing more about women in prison, other racialized women and poor women. Do you have an idea of the scope of the issue?

Also, we know there is legislation, as you mentioned, in B.C. and Alberta. Were there other provinces that had legislation that specifically authorized this kind of eugenics? If so, when were they ended?

Picking up again on Senator Wells’ question, what are some of the specific recommendations you would have for provincial and territorial legislation? Part of it is health care, and part is a federal responsibility in terms of criminal law.

Ms. Stote: I’ll leave Alisa Lombard to speak about more recent cases. A lot of my work is historical and deals with archival documents. I’ll leave her to speak to the specific populations that are coming forward today or whether there are any indications there.

To go to your second question about authorizing what is often referred to as eugenic sterilization, Alberta and B.C. had legislation in effect. There were changes made to the Medical Act in Ontario that allowed doctors, physicians to perform sterilizations without being held liable. Before 1969, sterilizations could not be performed for non-therapeutic reasons — for birth control, to prevent reproduction. I’m not aware of other provinces that legislated, one way or another, eugenic sterilization.

In 1969, when there were changes made to the Criminal Code that decriminalized contraceptives, that increased the likelihood that sterilizations would be performed for non-therapeutic and birth control reasons.

Part of the work I have done is to demonstrate that the federal government shares a primary responsibility here for creating a context through legal means and setting the parameters in which medical practitioners were allowed to act in performing sterilizations as an option of family planning, whether birth control, abortion or sterilization. There is a primary responsibility, I think, that lies on the federal government for creating the context that freed up medical practitioners to be able to perform sterilizations more freely within their practice.

Does that answer your question?

Senator Pate: Yes. In terms of where they were happening, certainly I’m familiar from previous work with issues within psychiatric hospitals, as well as prisons, but I’m just curious as to the places and range of population. We’re talking about women.

Ms. Stote: In terms of the historical documents that I have looked at, it was sometimes but not solely people who were institutionalized. It was people who came into contact with social workers, with doctors, because of other issues. They may have been in southern hospitals giving birth. They encountered a racism and paternalism there that resulted in them being sterilized without their consent.

I have no documented evidence to refer to — not that it didn’t happen, but I have nothing to refer to about prisons and populations in prisons.

Senator Pate: Any idea of the scope of the issue? How many women were impacted?

Ms. Stote: I can only speak to the documents I have looked at historically. It involves women from the North of Canada or women being treated in federally operated Indian hospitals, and also women who were sent to provincial hospitals or provincial health providers because the federal government did not want those sterilizations performed in federally-operated Indian hospitals.

The scope of the documents that I have looked at indicate, depending how you crunch the numbers, approximately 1,150 sterilizations of Indigenous women. There are another 50 or so cases where the sex of the person sterilized is not noted. Those are the documents that I have looked at.

Ms. Lombard: The first question was with respect to the scope. All we have are numbers and geographic locations of women who have contacted us. I can share that information. The number totals approximately 100. These are our concrete numbers: Alberta, 10; British Columbia, five; Manitoba, 12; Northwest Territories, five; Ontario, four; Quebec, two; Saskatchewan, 64; and Oklahoma, United States, two. That is the only idea I can have of the scope, looking at the lived experiences of the women who have reported.

Insofar as specific recommendations, we have made a long list of them to the Inter-American Commission on Human Rights in February 2018. Those that would touch upon any kind of federal-provincial cooperation, if you will, or adjustments to the legislative scheme would include the regulation of health professionals — doctors, nurses, et cetera — to ensure that licensing is contingent, at least in part, on a particular degree or measure of cultural competence and respect for bodily autonomy. Of course, for sterilization, that should be subject to a specific criminalization.

In Saskatchewan we uncovered that there is a race identifier on the face of Saskatchewan health cards — an embossed “R” which indicates that the cardholder is a registered Indian. This practice, as far as we can tell, has been happening since the late 1950s. No one can say why. However, I can say with absolute certainty that, today, registered Indians are required to disclose their status and their status card number on an application for a health card in Saskatchewan. When they receive their health card, next to “Beneficiary/Family Number,” there is an embossed “R” which means registered Indian.

Now, does everyone know what that means? Probably not, but the information is still there and it is still subject to mandatory disclosure. We say that is problematic.

Insofar as other kinds of legislation, I think we can point to a framework. The framework here that falls most closely on all fours is assisted dying. That is because, although on the face of it, it may seem extremely different, it is not in its effect. A person who is considering assisted dying cannot reverse that decision. A person who’s considering permanent sterilization also, in most cases, cannot reverse that decision. In one case, we have the end of a life; in the other case, we have the end of the ability to make a life. In our view, those two consequences require the same amount of diligence insofar as the consent framework is concerned. We would point to that example as a framework.

Insofar as other very specific recommendations, I would be happy to share them in writing. They’re about two pages long and I feel that perhaps we don’t have time for that.

The Deputy Chair: Thank you very much for that.

Senator Hartling: Thank you for being here today. This is very informative. I first learned about this issue from Senator Boyer last spring. Like Senator Wells, I am shocked to hear that is happening and continuing to happen.

Ms. Lombard, thank you for giving us the lived experience. It is always important to hear the voices of the women. Looking ahead, or just knowing what you know from talking to them, what are some of the long-term trauma effects, especially with their spiritual connection to life-giving? Do you have a sense of some of the things they’re going through, living right now, to cope with this trauma that happened to them against their wills?

Ms. Lombard: Thank you for your question. That’s a very deep question. I don’t think any response could really do it justice. Every woman would probably have a different response.

In terms of what they’re living with today, I don’t know if anyone knows a woman who has reproductive challenges? It’s very hard on families; it’s very hard on women and on their mental health, on their notion of family, when a particular culture holds that ability very near and dear — frankly, many cultures do, because that’s the essence of why we are all here. We all went through that process somehow, to be here. It’s quintessential to all of our existences. There’s a lot of difficulty — mental health issues, for sure; depression, anxiety, et cetera.

Insofar as cultural connections, there are a lot of feelings of inadequacy, feeling as though they can’t fulfill their role as a woman. That’s something I often hear. “I don’t feel like a woman anymore.” How to qualify that is an impossible and gargantuan task. That’s about as far as I can go.

Senator Hartling: Yes, that’s a lot. Are there supports for those women as well? Do you see that there are places to get help or to talk about it?

Ms. Lombard: Inadequate supports. I believe there are trust issues. We have to keep in mind that they would have to go to the very same health institutions that perpetrated this harm upon them. The trust is problematic in seeking out those health services.

Some women who have experienced this have never gone to see a doctor again, sometimes over decades. We all know what that can mean in the way of prevention and women’s health issues.

Senator Hartling: Thank you.

Thank you for being here, Dr. Stote. I know your parents; it’s so neat to have that connection from New Brunswick.

Your book sounds interesting. I would like to have an opportunity to read it. I am curious: What led you do that research? You also said you’re curiously optimistic. What’s the next step for you and the hope that you have for us in going forward?

Ms. Stote: Thank you for the question. In terms of what led me to the research, it was Indigenous peoples and my engagement with Indigenous peoples. This is something that the Indigenous peoples whom I know and with whom I have interacted say has been happening in their communities for a very long time. This is not something that started in the 1970s. This has been going on for a very long time. There was nothing in Canada, no history to read on the topic, so that’s where the work came from.

I’m sorry, the second part of your question, where do we think it should go?

Senator Hartling: Yes.

Ms. Stote: This is why I’m cautiously optimistic, in that I spend a lot of time reading the words of senators, of MPs, of elected officials and of government officials. Your past generations of government officials have been aware of this issue and they’ve consistently responded in a way that has sought to minimize responsibility and avoid liability for the issue. That is part of why I’m cautiously optimistic. I’m very hopeful that there are good people in this room who are going to do good things and push the changes that are required. However, there is caution because there is a long history that has come before all of you in this room of governments trying to avoid accountability and liability, and trying to minimize these issues.

The other day, I was going through some of my archival documents and saw the words of one particular elected official saying that we looked into these allegations of coercion and there’s nothing to them. This is part of where my caution is coming from.

I want to reiterate there that Indigenous peoples have the same caution about not only interacting with Western medicine, because Western medicine has been used as a tool of colonialism throughout history, but also engaging with governments, the criminal justice system and the child welfare system and trying to understand the harms of sterilization. The harms experienced by Indigenous peoples because of coerced sterilization don’t exist in isolation from the harms perpetuated against Indigenous peoples through all other aspects of society. How you quantify or even qualify those harms is very difficult. This is why I want to stress that coerced sterilization and what to do about it can’t be considered in isolation from its larger context. Systemic change is needed.

We need to be interacting with Indigenous peoples as nations. Indigenous peoples have a right to reconstitute their ways of health and healing, as well. It’s not just about having more culturally competent care within Western institutions, in my opinion, though that is important. It’s also about providing Indigenous peoples with opportunities to reconstitute their own ways of health and healing.

I teach classes on reproductive justice and issues of informed consent. Can you consent freely and in an informed fashion when you’re living under oppressive conditions? What does informed consent look like for Indigenous peoples while living under conditions of colonialism? That is the central question that needs to be not forgotten as we work through these issues. Thank you.

Senator Hartling: Thank you very much.

The Deputy Chair: Before we go to our second round, like Senator Wells and Senator Hartling, before I spoke with Senator Boyer, I was under the misconception that coerced sterilization didn’t happen after the 1960s and 1970s because I wasn’t hearing about it.

When we hear you speaking this morning about oppressed conditions, proper and informed consent, and being asked to sign a consent form when you’re in labour — and, as anybody who has ever been in labour knows, you would sign anything that was put in your face or you would tear the arm off the person who put the form in your face — that certainly wouldn’t be informed consent.

You said women have told their stories so many times and yet we’re not having any result from that. We look at the RCMP investigation which took place. The women who have told their stories are finding out, well, there’s no paper trail; there’s no sign that complaints have been registered; or they’ve looked into allegations and there’s nothing to them.

How did this cone of silence come about so that these stories aren’t out there? How do we convince these women, who have told and retold their stories — and it must be heart-wrenching every time you tell it — to continue to tell our committee, for example, their stories in the hope and with cautious optimism, Dr. Stote, to use your terminology, that, in fact, things will change because they have to.

Ms. Stote: Is this a question?

The Deputy Chair: How was it hidden for so many years? Three of us sitting at the table thought that this was something that had happened — for me it was in the 1960s and the 1970s — but that it just didn’t happen anymore.

Ms. Lombard: To be very frank, if I may, interactions between Indigenous people and non-Indigenous people in Canada are not super frequent. There’s a lot of underreporting because there’s no trust. Various processes, including the Truth and Reconciliation Commission and the testimony before the missing and murdered women’s inquiry, has repeated this over and over again. The reason for that is because when women do come forward, they’re not believed. They are dismissed. They are told that people who are more important than them know more about what’s good for them than they do. That’s why they don’t come forward.

They come forward to people like me, or like Dr. Stote, because there’s a degree of trust, because we listen and because we try our hardest to do something about it. They come forward to people like Senator Yvonne Boyer for the same reason. There’s a level of trust because we’re trying. We’re trying to fix it. We’re listening to them and we believe them. It’s important to believe them.

When women share one of their most atrocious experiences, one of the hardest things they’ve ever been through, something which can tarnish the beautiful experience of having a child, which I went through seven weeks ago, that can obliterate that experience. You don’t share it lightly. You don’t share it over tea and you don’t knock on the RCMP’s door and say, “Do you think there’s something wrong with this?” That is especially the case if you have to see that doctor in six weeks to see if you’re okay.

We’re talking about a significant power imbalance. That power imbalance requires checks and balances, some deterrence and accountability for those people in positions of authority and in positions to abuse that authority.

The Deputy Chair: We’ll start second round now.

Senator Boyer: Dr. Stote laid out the historical impacts and framework on why this is happening. Ms. Lombard, why is it still happening? What can be done immediately to assist? Do you think the passage of Bill C-262, UNDRIP, with free, prior and informed consent, would assist these women in making people a little more aware that consent does mean free, prior and informed?

Ms. Lombard: I will answer the questions by layer. Why is it still happening? I think it’s still happening because nothing has been done to prevent it, to be very clear. We know that it’s still happening. We know that it happened less than four months ago. There’s no question about that.

A wise person once told me if we want things to stay the same, then we just have to do nothing. Here we are suggesting we should do something.

The passage of Bill C-262 is movement and that’s wonderful. The issue here and the disconnect — again, to be frank — is that we have the law, civilly anyway, to protect these women. The problem is that it’s not equally accessible by Indigenous women. So women in this set of circumstances, for whatever reason — those who have experienced this practice — cannot access this framework of proper and informed consent. Their experience at the hands of the health care system and other Canadian institutions, if I may be so broad, is not the same as the experience of others. That is because of a variety of things that we know, but let’s call it what it is. It is because of racism.

When we talk about who is this happening to, namely, is it happening to Metis women, or to non-status women, or to women here and there, and we start talking about the details, I have to be frank. The women who have come forward to us are brown. It is happening to darker-skinned Indigenous women, or women who are audibly Indigenous, women whom people are able to identify as Indigenous.

Racism does not much care about legal status, does it? I think we have to be honest about that. This is the problem, if we’re going to find any kind of meaningful solution.

My hope is the passage of that bill may assist in a better understanding. However, Canadian law still stands for the clear proposition that proper and informed consent means the four pillars what I described earlier. For whatever reason, professionals and other people operating in Canadian institutions that are publicly funded and administered, operate with impunity when they do not respect those pillars. So why is that?

Senator Boyer: Thank you. I just have one more quick thing to say, and that is thank you to the brave women who have come forward and who are watching here today. Thank you both.

The Deputy Chair: That was a great final comment from you and it’s true.

Senator Pate: You may have answered this, Ms. Lombard, and in no way am I doing anything but trying to explore the scope of this.

How many of the individuals whom you’re working with or, Dr. Stote, whom you’ve talked to — part of the capacity issue is youth, mental health, intellectual disability, and, as well, how many have also been sexually abused? No doubt, because of the type of work I have done, sometimes it appears that sterilizations have also — there’s been coercion that has come from family members, especially in situations of sexual abuse. Do you have any information about that and the scope of that as part of this issue? This is not to take away from the responsibility of medical professionals in all of those cases to fully explore the circumstances.

Ms. Stote: I can only speak historically from the work that I do. In particular, in the 1970s, once Canada changed the laws and implemented a family planning program, there is a consistent continuation of targeting young, Indigenous women who are often single, unmarried mothers. Following that 1969 change to the law and the implementation of family planning policy, that translated its way down to a provincial level. If you read family planning reports from the 1970s, which is part of what I’m working with right now, there is a consistent focus on young people, rural populations, Northern populations; but in particular young, single, unmarried mothers. “Sexually promiscuous,” those are the words used in the documents. It ends up being Indigenous women who are targeted. I’m not saying completely, but based on the documents I am looking at, that is definitely a focus, historically, that’s been shaping this practice.

Ms. Lombard: In terms of contemporary times, I think we have to examine the categories you identified and look at the disproportionate representation of Indigenous women in those categories to understand how this operates. I should also mention that I was contacted by an individual who was calling on behalf of a person who was incarcerated. That has happened.

In terms of mental health issues, it’s hard to say. The damages that arise from something like this give rise to mental health issues. Whether they predated the forced sterilization or not is anyone’s guess. It’s hard to say. Even if they did, it doesn’t matter. Proper and informed consent and the obligation of the physician are not displaced by some kind of temporary or permanent physical condition or mental state.

In terms of socio-economic status and the like, yes, that’s usually an issue, but it isn’t always. Some of the women who have contacted us have been very, if I may say, responsible mothers who take care of their children and do the best that they can, despite sometimes having gone to residential schools, or despite being Sixties Scoop survivors. They are doing their best to provide for their children in a different way for them.

I don’t think we can silo. I can say that the overarching chorus is that the women who contact us are visibly or audibly Indigenous. There is no doubt about that.

Senator Pate: Any information about histories of abuse?

Ms. Lombard: No, not always. Of course, I would guess probably, but that’s just an educated guess.

Senator Pate: Thank you.

The Deputy Chair: Thank you very much, Ms. Lombard and Dr. Stote. You have been very open in your comments today. You have given us a lot of information and a lot of things to think about. You have been a terrific panel to start our study. Thank you so much for being here today.

In our second panel today on the forced and coerced sterilization of women in Canada, we are going to hear from witnesses from two organizations about Canada’s international obligations.

We have Jackie Hansen, a campaigner for Amnesty International Canada, and Sandeep Prasad, Executive Director, Action Canada for Sexual Health and Rights.

Each of the organizations has been asked to make a five-minute opening statement and then we will have questions.

Jackie Hansen, Gender Rights Campaigner, Amnesty International: Thank you very much, senators, for this opportunity to appear before you today on unceded Algonquin territory.

As a global human rights watchdog, Amnesty International wants to make sure every person everywhere has their human rights respected, protected and upheld. Amnesty International has documented cases of both forced and coerced sterilization in a number of countries, and we are deeply concerned that women in Canada are being subjected to torture in the form of sterilization without consent. To situate this in an international context, I want to share with you the story of Michelle from the state of Veracruz in Mexico.

Michelle is a 26-year-old mother of two who found out she was HIV-positive when she was pregnant. The gynecologist told her she would need surgery to prevent her from having any more children. The doctor said, “What are you waiting for? You have HIV and you are about to bring a sick child into the world. Why would you want to get pregnant again?” She said she wanted a non-permanent method of contraception, but the doctor pressured her and her mother on the issue of sterilization.

When she went to the hospital to deliver her baby, she was treated terribly because of her HIV status. Staff wrote “HIV” in a big sign over her bed and, when she suffered from a hemorrhage, she was forced to clean up her blood herself.

She woke up from a C-section to find out that she had been sterilized without her consent. She told Amnesty International: “It caused me a great deal of suffering, and it is a scar I will carry all my life. It wasn’t my decision. They did it to me by force.”

Discrimination was at the heart of the treatment that Michelle received. It denied her the right to the same reproductive health services to which all women are entitled under international human rights standards. According to these standards, contraceptives must be available and affordable, and women must have the right to freely choose or reject family planning services, including sterilization.

Mexico is not the only country where we have documented cases of forced or coerced sterilization. We have documented cases in Chile, China and Peru, among other countries. Specifically in Peru, about 200,000 women, most of them Indigenous, low income, campesinos and Quechua speakers were sterilized in a family planning program in the 1990s.

In 2014, the Inter-American Commission on Human Rights found that Bolivia violated the right to be free from torture and ill-treatment in the case of a Peruvian refugee who was sterilized in a public hospital after a C-section. The court also agreed to hear the case of a woman living with HIV in Chile who was forcibly sterilized. The European Court of Human Rights found that forced sterilization of Roma women in Slovakia violates the prohibition of torture and inhuman or degrading treatment or punishment.

The reason I’m sharing with you these international examples is to illustrate the striking similarities with the cases that Alisa Lombard outlined in her testimony just an hour ago.

All of the cases that Amnesty International has documented have been women from marginalized groups who have experienced multiple forms of discrimination. This gets to the central point that government action to address sterilization without consent must recognize that multiple and intersecting forms of discrimination may place some groups of women at a heightened risk of being sterilized without their consent.

In December, the UN Committee Against Torture affirmed that forced and coerced sterilization of women in Canada is a form of torture, and called on Canada to ensure that all allegations of forced or coerced sterilization are impartially investigated, that the persons responsible are held accountable, and that adequate redress is provided to the victims.

When the word “torture” is invoked, many people automatically have this Hollywood idea of a political prisoner being subjected to electric shocks. I found, in the work that we are doing on these issues in Canada, that I am having to talk through the definition of “torture,” because there are often preconceived notions. Torture can take many forms and it is very gendered. So I will reiterate why forced and coerced sterilization is torture.

According to Article 1 of the Convention against Torture, “torture” includes any act that is intentionally inflicted and results in physical and/or mental pain or suffering serious enough to be considered severe. It is committed by state officials, either directly or indirectly, and it is committed for specific reasons including “any reason based on discrimination of any kind.” Sterilization of Indigenous women in Canada without their consent meets all of these elements of the definition.

The federal government’s approach to addressing sterilization without consent has been to focus on the need for culturally safe health care, and we would say that yes, of course, this is an important concern and something we’ve advocated for, but such an approach must incorporate and be supported by a clear position on the absolute necessity of consent.

Whether an Indigenous woman births with a traditional midwife in a rural area or with a doctor in an urban hospital, her free, full and informed consent must be secured before undergoing any medical procedures.

We have been calling on the federal government to thoroughly investigate all allegations of forced or coerced sterilizations of Indigenous women in Canada, to establish policies and accountability mechanisms across Canada that provide clear guidance on how to ensure that sterilizations are only performed with free, full and informed consent and, critically, to provide access to justice for both survivors and their families.

Further information is available in our written submission and I am really looking forward to responding to your questions. Thank you.

The Deputy Chair: Thank you very much, Ms. Hansen.

Sandeep Prasad, Executive Director, Action Canada for Sexual Health and Rights: Honourable senators, I wish to begin by recognizing we are on unceded Algonquin territory, and I wish to thank this committee for taking up this urgent matter.

Action Canada for Sexual Health and Rights is Canada’s national sexual and reproductive health and rights organization, and we were one of the stakeholders who raised this issue with the UN Committee Against Torture in November 2018. The following month, Action Canada along with our colleagues here today and the Native Women’s Association of Canada, developed a joint call to action that was signed by nearly 80 civil society and Indigenous organizations and experts in Canada. Many of those recommendations I will reiterate in these remarks.

Since that time, we have been concerned with the relative inaction by the federal government on this front, given the magnitude and significance of this issue, which I would call a systemic and significant pattern of human rights violations.

Forced and coerced sterilization are violations of sexual and reproductive rights. These are acts of torture and tools of genocide. We have seen them used throughout history and are continuing to learn every day they disproportionately affect Indigenous, disabled and otherwise marginalized people within the Canadian health system for which the federal, provincial and territorial governments share responsibility. As a party to numerous international human rights treaties, the federal government has a legal duty to end forced and coerced sterilization across all jurisdictions.

In contrast to that duty, the consultation that occurred behind closed doors within Indigenous Services Canada several months ago did not meet any standards of the government’s duty to consult, nor was it transparent in its approach and outcomes. The federal-provincial-territorial working group that has been called has likewise not been transparent to us and has not included many key expert stakeholders, to our knowledge. The mandate and agenda for this meeting is unclear, and even before deciding what it must accomplish, this working group must transparently consult with survivors, experts and other stakeholders.

While there is no doubt that systemic racism plays a major role in these violations, it is inappropriate for the Prime Minister and others to infer that this is a problem that will be solved with increased culturally appropriate services for Indigenous peoples. Similarly, even the name of the federal-provincial-territorial working group created to address this issue is called cultural competency in health care, which belies the issue. Forced sterilization is not about misunderstanding a person’s culture; it is about violating their right to determine for themselves what happens to their bodies. While culturally appropriate services are needed, the health system at every level must take a comprehensive approach to sexual and reproductive rights and ensure that all people know how to define and achieve informed consent from any individual and every individual they encounter.

What will it take for Canada to ensure that these human rights violations do not happen again, or how do we ensure non-repetition as part of achieving accountability?

First, investigation is needed. We do not yet understand the scope and scale of this current problem in terms of Indigenous survivors of these practices, but also in terms of others who may have been subjected to these practices, such as women with disabilities.

One of several critical first steps would be to conduct a formal national investigation of forced and coerced sterilization, with the purpose of understanding the scope and scale of this harmful practice, as well as ensuring effective reparations to victims. As part of this, the government should appoint a special representative to meet with survivors and their families and to hear their requests for justice and reparations.

In considering sanctions for health professionals who have perpetrated forced or coerced sterilization, it is important to apply criminal sanctions for cases where warranted, but also to ensure the full and effective use of other accountability processes, such as professional disciplinary measures and civil remedies, including human rights tribunals, and to support survivors in engaging these processes.

A serious consideration that has not yet been addressed in public discourse is that we must ensure that use of criminal sanctions does not have a chill effect on the availability and accessibility of high-quality sexual and reproductive health services based on free and informed consent, particularly for those people often stigmatized and discriminated against by the health sector. Those who are Indigenous or otherwise marginalized are often disproportionately targeted by law enforcement and so are among the least likely to seek police protection. The problem will not be solved without comprehensive changes within the health system.

Last, Health Canada, under the leadership of the Minister of Health, must take responsibility for the health system and create a national action plan that needs to squarely tackle this issue to ensure, first, that standards of practice are clarified as they relate to consent in medical practices; second, that compulsory education is provided to health professionals on these standards and on key issues of racism and other forms of discrimination and stigma; third, that cultural change within health professions can be achieved; and fourth, that accountability for these human rights violations can be strengthened. Thank you.

The Deputy Chair: Thank you both very much for your presentations. We’ll start questioning with the person who brought us all of this information and convinced us this is a study we need to do. The more we get into it, the more we know that you were absolutely correct.

Senator Boyer: Thank you, Madam Chair. Thank you both very much for your presentations and for all of the work that you are doing in this area. It’s phenomenal.

I have really enjoyed the recommendations that you have spoken about, Mr. Prasad. You had suggested that the government put something in place to meet with the survivors and hear their voices. If there is one thing that I found in doing the report, it was absolutely critical that these women were protected because even by us speaking today and having women listening, it triggers such a horrific emotional response. I would like you to comment on how that could be accomplished within the framework that you have already laid out for us, keeping in mind that the women’s safety is primary.

Mr. Prasad: Absolutely. I think there are many ways of achieving that. Senator Boyer, let me first begin by thanking you for your leadership on this issue. It is a very important issue.

Privacy, confidentiality and safety within any investigation would need to be paramount in how that’s approached in terms of how records of those conversations and interviews with survivors are kept, how they are approached, and who they have to advocate and support them within that process.

It also needs to be voluntary. The survivors need to be willing to come forward and speak to any special representative who’s appointed to carry out this task of meeting with survivors and their families. I think it’s paramount to offer that choice and offer different means of ensuring privacy, confidentiality and support during the actual process. That would be critical.

Senator Boyer: Would you suggest that possibly the women who have been affected should be the ones making the decisions on what would be adequate to protect their own safety?

Mr. Prasad: I think that is an excellent step for sure. That is a critical consideration. In terms of a human rights approach, you need to centre those who are most affected by this issue so their needs in that moment and within that process need to be given priority, absolutely.

Senator Boyer: Ms. Hansen, would you like to comment on that at all?

Ms. Hansen: Further to that, I think it’s up to the women to really define what the supports are that would be useful for them, both during the process as well as after, and to really think through how to structure and streamline processes so that survivors aren’t getting repeated requests over and over again to appear, recognizing the process of retraumatization that can happen. Really taking that trauma-informed and culturally informed response is so critical.

Senator Boyer: Thank you very much for that. Very good suggestions of positive solutions and recommendations to address some of these issues. Thank you.

Senator Pate: Thank you to both of you and your organizations for the work you do.

In the Action Canada submission to the UN Committee Against Torture, you mentioned that you think there may be issues of Indigenous women being sterilized in prison. I’m curious what the extent of this issue is, as far as you know, internationally but also in Canada, more particularly for those who are institutionalized, including those in prison.

I think you were here when I was asking a question earlier about how often it’s linked to other issues of oppression in addition to discrimination, but also where people have experienced abuse. Sometimes those who have been party to that abuse have participated in the coercion or the forced sterilizations.

Second, just in case we don’t get to second round, you have both mentioned the importance of criminalization, which is a position that both of your organizations haven’t necessarily taken. I’m curious if you could speak to the value of law as an identifier of a standard of behaviour and if that’s part of the rationale for why you would come to that conclusion.

The Deputy Chair: Senator Pate, you are really good at asking three or four questions at one time.

Senator Pate: My apologies.

Mr. Prasad: I think there is within our submission to the United Nations Committee Against Torture, Senator Pate — and thank you so much for those questions. I’m hoping I will respond to all of them, but please feel free to follow up if I’ve missed something.

I think our overarching recommendation to this committee is that we have anecdotally heard from different stakeholders that this practice is happening within their communities, whether they are Indigenous women who are incarcerated or women with certain types of disabilities. From our perspective, we glean that information through effective partnerships with different organizations doing different sorts of work, whether it’s the DisAbled Women’s Network or the Native Women’s Association of Canada and so on.

For us, what’s paramount here is fully understanding as a starting point the scale and scope of this practice in Canada as it’s happening currently. I feel that happen only through a comprehensive national investigation of the problem.

There also needs to be, as part of that, the federal government taking real ownership of what is happening within our health systems in terms of these practices and saying that we are going to figure this out on a case-by-case basis. We will look at what has happened with respect to each of these cases. What went wrong? Who was responsible in terms of individuals, health practitioners, health institutions and health systems? Where does the accountability lie? What needs to happen to ensure that this does not happen again? I think those solutions are certainly important to grasp and they are varied in terms of what I believe human rights standards would call for in different cases.

There is certainly the value of law in denouncing particular actions and providing for sanctions, and the value of criminal law in that. There is no doubt that many of these cases merit some form of criminal or other sanction. The key is to investigate and to ensure a range of accountability tools is being used here, including professional disciplinary procedures, as well. The requirements of human rights to engage a large system of accountability tools is important to bear in mind in this.

I do think that different options need to be considered, including potentially creating a specific criminal offence, but also the application of existing criminal offences. Why haven’t those tools been used? What are the systemic problems preventing assault charges being laid in these cases? As well, they are considering the various options that could be possible.

We do also need to bear in mind, Senator Pate, that the use of criminal law is the most powerful tool of the state and in doing so we must ensure that access to sexual and reproductive health services is not compromised and there is no chill effect in terms of the accessibility of those services.

Ms. Hansen: The reason I specifically chose to highlight the case of a HIV-positive woman living in Mexico is to show the various contexts in which we know this practice occurs in other countries.

Our research has documented generally poor women, rural women, Indigenous women, women living with HIV and other marginalized women. We haven’t specifically done any work that’s related to women being subjected to forced or coerced sterilization in prisons, institutions nor linked with histories of abuse, but I think, given the international examples, as part of an investigation in Canada, it’s really worth recognizing that there may be groups outside of Indigenous women who are disproportionately impacted by in practice.

In terms of criminalization, our goal would be to focus on mechanisms to prevent this from ever occurring again, to really look at the role of health care providers and how they can be promoted as human rights defenders who are positively working to impact human rights and to be promoting that and to be creating clarity around how free, full and informed consent needs to be obtained. It is not just do it, but really having that clarity on what are the expectations, and doing that at federal level so there is consistency across jurisdictions in Canada.

We recognize when something meets the threshold of torture, there also is a need for accountability. While we want to see the focus on prevention, when this does happen, there needs to be accountability mechanisms. Part of that can be justice mechanisms. Part of that can be through reparations.

When we are looking at justice mechanisms, we would really encourage, when warranted, for the existing legislation surrounding both aggravated assault and torture to be applied. That is certainly a deterrent and a really important accountability mechanism to have in place. But recognizing these are existing tools that are not being applied, we think it is worth investigating whether there is a need to create a specific Criminal Code provision for forced and coerced sterilization, both to give it more visibility and to increase its enforceability.

Senator Pate: I have a supplementary question.

Both of your responses gave rise to another question that is linked to some of the other work we have been doing here. One is when you talk about deterrence, most of the research shows that, in fact, deterrence is not effective unless you have a near certainty of being discovered, pursued and prosecuted. It seems to me, based on what you and the previous panel have said, the chances of that being likely, given what has happened to date, is not great. That’s more of a comment.

Particularly in a prison setting — I’m linking this to the prison study we are doing — how likely is it that there will be any kind of voluntariness? This is in a context where we have heard from witnesses in that study and the nurses union indicated that in order for prisoners to have access to health care if they are in segregation by whatever term it is eventually going to be known, there will have to be two guards present. Any comments on how likely that could ever be deemed to be voluntary, in your views, by any legal standard?

Ms. Hansen: You mean how likely would women be to provide their free, full and informed consent?

Senator Pate: Is it possible with two guards present?

Ms. Hansen: It would certainly create a significant power imbalance.

Mr. Prasad: I think it would be very difficult to establish that. The power imbalances are very significant. We need to consider that context is a hugely significant factor in determining informed consent and providing for that.

Senator Pate: Thank you. If they are taken out of the prison to a hospital, and they still have officers there and they are in shackles, I presume you would think that would be also less likely.

Ms. Hansen: I think this is why we are looking for more guidance from Health Canada about exactly what needs to happen to obtain free, full and informed consent, so that you can apply it to a range of different situations, and it’s very clear whether the conditions are present or not to get that consent.

Senator Pate: Thank you witnesses. I’m thinking of some of the examples you have mentioned, if it’s a situation where there is sexual abuse in the prison and one of the officers taking the woman to hospital also happens to be implicated.

Senator Hartling: Thank you very much for being here. This is our first day on the study but it’s already raising a lot of questions and lots more that we can look at. As you know, this is a short study for the next few weeks but, supposing that we are able to go forward next fall and continue the study in a broader sense — because the questions we are thinking about are raising more questions — could you give us some ideas of what aspects we might look at, recommendations or gaps in the current literature that we might explore for the future? Any thoughts on that, please?

Mr. Prasad: Thank you for that question, Senator Hartling. The benefit and privilege of parliamentary work is that it’s resourced, transparent, accountable and non-partisan. I think your point is a great one. The study you are undertaking right now is an important beginning to this process and, even at the level of Parliament, more needs to happen towards a thorough understanding of the crisis at hand.

My personal hope would be that there could be even a special joint subcommittee struck with parliamentarians from health, human rights and Indigenous affairs committees to continue this study in a fulsome manner as time goes on. I think there are a number of aspects that can be studied in this respect.

Ms. Hansen: We have also supported the call for a joint subcommittee which can do a much deeper dive and think that such a committee would be really well placed to do so.

One example of one of the things we think, with existing information, a deep dive could be done is beginning to pull some of the data that is existing that may not identify the presence or absence of free, full and informed consent. Certainly by looking at the Canadian Institute for Health Information, one would presume it’s possible to start looking at information around where sterilizations are being provided across Canada. Let’s look at the numbers; let’s overlay that with some identity factors. Are there some things that come into focus? Does it suddenly appear that in a certain part of the country, for example, we are seeing very high levels of sterilization? What does that mean? Where does that lead us? What other questions are we going to want to ask based on that? When you overlay that with identity factors, what else does that tell you?

Starting to pull the existing information to begin to better understand the scope and scale of this issue, even without knowing whether consent is there or not, I think that would help as part of a study in the fall to bring into focus some additional areas that you may want to investigate.

Mr. Prasad: If I could add to that, I think it’s also important to consider what it is within the culture of health professions that these practices are happening. What are the cultural elements that are facilitating this? Is it a culture that somehow providers know better than the patients, the rights holders who are before them? I think that is part of the problem and you see that manifested in other ways in other sorts of interactions that health care providers might have with patients outside of this area of core sterilization.

I think that’s an important attitude to root out, what within the culture of those health professions gives rise to that and how can that be changed? What is the nature of education that health care providers receive when it comes to issues of racism, colonialism, ableism and classism? I think those are important factors for that study to look at as well.

Senator Hartling: Thank you very much. I appreciate it.

The Deputy Chair: You talked about possibly two departments being involved and possibly more. Health and Justice were two that come quickly to mind. I think one of you said earlier that you would hope all of these changes would become voluntary, but sometimes there has to be deterrence in terms of laws so people are held accountable for what they’re doing.

In Canada, of course, with our health care system, we run into another jurisdictional aspect of it, and that’s the provincial/federal jurisdiction. I assume the federal government could certainly play the leadership role, but how do we get three territories, 10 provinces and the federal government in line to understand the seriousness of this type of issue that we’re dealing with that has been really hidden for so long?

Ms. Hansen: I think part of that is strong federal leadership and showing how much of a priority government is placing on an issue to help compel all jurisdictions to come together to discuss the issue.

When the UN Committee Against Torture in December issued its recommendations to Canada, it was very clear and the committee was clear in the recommendations that Canada must report back within a year on steps taken to implement their recommendations. That’s by December. Certainly, Canada is the duty bearer for the treaty and bears the responsibility to coordinate this response.

Rather than having a lack of transparency, as Sandeep said, around this working group that’s been established, really strong, bold federal leadership, accepting responsibility for what has happened, saying we need to change this, it is imperative that we come together and this is what needs to happen will help to draw all jurisdictions in.

We need not only federal leadership, we need a strong response from Health Canada, because we want to make sure we don’t have a patchwork of different responses across the country so that depending on where you’re sterilized determines the response that you’re going to receive from the government and from health care bodies. We want to make sure that when we’re saying that this is how we obtain free, full and informed consent in the public health care system in Canada, those guidelines on how free, full and informed consent is obtained are consistent across all jurisdictions across Canada.

The reason and the need for the federal role is really clear. How government prioritizes the issue will help to compel other jurisdictions to get involved in a meaningful way.

Mr. Prasad: Absolutely. I fully agree with what my colleague has said in response to your question, Senator Cordy.

I would add that, in addition to federal leadership, it’s federal ownership over the health system in this country. I think that’s key, the federal government and Health Canada recognizing that they have a key role to play in setting out standards and guidelines, as Ms. Hansen said, in terms of, in this case, what is involved in obtaining free and informed consent each and every time a health care provider is with a patient, and making sure that is clear across the country and that you would do that through a national action plan that has provincial and territorial buy-in and support.

The Deputy Chair: Ms. Hansen, you gave examples of non-Indigenous women who have been sterilized and we know that happens in Canada as well. From a lot of the reading that I’ve done and the witnesses that we heard earlier today, certainly the Indigenous women are very much at risk and the federal government has responsibility for Indigenous health. Although I know it gives it to the province, they ultimately have the responsibility, as they do with the prison system, going back to Senator Pate’s questions earlier. They are the main person with those two particular groups.

Senator Boyer: I just want to go back to the scope a little bit. It would be going back to the UN Committee Against Torture. When you made your submissions, you had said, in Canada, Afro descendants, immigrants, Indigenous people, poor people and promiscuous women, among others, have been called feeble-minded and sterilized as a result. Can you elaborate on that? We’ve heard about the Indigenous women recently — four months ago — being sterilized and it is probably still happening. Do you believe these groups are being sterilized to date, and why do you say so?

Ms. Hansen: That was your submission.

Senator Boyer: I just want to frame the scope a little bit.

Mr. Prasad: Our answer is very much rooted in the history of this practice in terms of who has disproportionately been targeted by practices of forced sterilization throughout history. The cases which have emerged in the last many months are, from our perspective, the tip of the iceberg in terms of what we believe is actually out there, once we start investigating and asking rights holders about their experiences in these settings.

Ms. Hansen: Similarly, our experience has been in other countries that, in addition to Indigenous women, there are often other groups, because of various forms of marginalization and discrimination, who may be disproportionately targeted. I think it’s useful to keep that in mind, recognizing these histories and the experiences of other countries when applying research and investigation to the Canadian context.

It appears that that it’s disproportionately Indigenous women who are impacted. That doesn’t mean there aren’t other people in this country who have also been impacted by this practice.

Senator Boyer: Would you say a commonality would be poverty?

Ms. Hansen: I would say it would be marginalization.

Senator Boyer: Okay. Thank you.

Senator Bernard: My apologies for not being here earlier. I was actually attending Autism on the Hill, another issue of national relevance and significance where not enough is being done. Forgive me if the question I’m about to ask is one that you’ve already addressed.

When this topic was first presented to the committee, the focus was on Indigenous women and we’ve certainly heard and know that there are major concerns around Indigenous women and forced sterilization. Through looking at this study, I was reminded of some findings of a research project that I did in my former life as an academic. Some colleagues and I were doing research back in the 2002-07 time frame with African-Nova Scotian women in rural communities, looking at their experiences with health care and their access to health-care services.

I was just reminded of one of the findings that many of the team members found disturbing, and that was the majority of the African-Nova Scotian women in one particular rural community had had hysterectomies. In one family, they found that a mother and all of her three or four daughters had hysterectomies. When we tried to further understand the reasons for the hysterectomies, the women who were directly involved and had had these hysterectomies did not know why, which would lead one to think it was an issue of uninformed consent.

Could you give us some direction in terms of whether the scope of this national study could uncover some of those other practices around the country as well? If we were going to look at some of those practices, would you have some suggestions for how we might do that?

Ms. Hansen: I think what you’ve just outlined indicates precisely why further investigation is so badly needed. I also think it really underscores the need for a trauma-informed, survivor-centred approach to any such investigation. It’s one of those things that you have to have a sense of who may have been disproportionately impacted to know where to reach out, what questions to ask, who is best-placed to do that work, and how to centre the work on the people who have likely been impacted.

Right now we’re all ending up with the information that we know from various pieces of work and bringing that together and asking how this can be done in a trauma-informed, systematic way, that will make sure that we’re not just focusing on one group, but we’re able to understand the many nuances and complexities of this practice in Canada.

It doesn’t surprise me that this has happened, but it’s something that I have not read about and that I don’t know a lot about. I suspect there are a lot more stories like you’ve just shared from across Canada. I think considerable thought will need to go into how to structure an investigation so those people will have the trust and the confidence to come forward and share those truths.

Mr. Prasad: Senator Bernard, to add to my colleague’s reply, I think part of the process of investigation is really about asking, in each and every case, what could have happened differently to ensure that this did not happen. When you compile that information, you probably will have a series of legislative and policy responses that are necessary to ensure non-repetition, as well as better defining and clarifying the standard of practice when it comes to informed consent and holding providers to that in each and every case. That definitely has to be part of a national action plan.

Senator Bernard: Thank you. I’m assuming the issue of disabilities has come up as well and women with disabilities are also included in that over-representation of women who have been sterilized without full, informed consent. Has that come up here already?

The Deputy Chair: It was touched on briefly in the previous panel.

Senator Bernard: Thank you.

Senator Boyer: Ms. Hansen, I have a question for you. It is something we had briefly talked about in our previous meeting. Can you talk about some international examples of forced or coerced sterilization where, in your opinion, there have been proper reparations made? Can you elaborate a little bit on what those reparations were, how they came to be, and where the women are at now?

Ms. Hansen: I think Peru would be the best example in terms of this being something that affected hundreds of thousands of women. It was a state-run, family-planning program that happened over the course of a decade.

I would encourage this committee to hear from Maria Ysabel Cedano Garcia from DEMUS, an organization in Peru. She is one of the leading activists who has been working with survivors and accompanying them on the path to justice. She’s going to be in Ottawa from April 29 to May 1. If there was an opportunity for her to appear before this committee, I know she would be keen to.

There’s no way I can characterize the work in the way that she would, but I certainly think there’s a lot that we could learn from the Peruvian experience, both in terms of things that have been good and things that have been a challenge.

One thing that has been an enormous challenge in the Peruvian case is holding responsible the masterminds behind this family-planning program. Holding accountable the people who devised this is something that’s been 15 years in coming and still isn’t quite there. There’s been some movement, but that’s been one of the biggest challenges.

One thing that has been positive in some ways has been having a registry for survivors, so they can come forward and be registered. There are various processes and access to things linked to that. One of the challenges is how that’s communicated to Indigenous women living in rural and remote communities who may speak Quechua and not Spanish, for example, so that they are aware of some of the possible avenues they could access for support and reparations.

I think there were some lessons learned, good and bad, from the Peruvian experience that would be useful to look into. I think it’s the country where this has been the most systematic approach to dealing with the issue. I want to emphasize it’s still very much in progress and less than perfect, but it could provide some inspiration for some approaches in Canada.

Senator Boyer: Has that example gone outside of the scope of Indigenous women? Has it included others?

Ms. Hansen: It has. It has primarily been Indigenous women, but there have also been some other poor rural women, campesinas, who were sterilized without their consent, as well as some men.

Senator Boyer: What about trans people?

Ms. Hansen: That’s a good question. Not to my knowledge. I don’t know the answer to that, but we know that in a number of countries, including a number of northern European countries, sterilization is mandatory for many trans people to legally change their identity documents, and this is something we’ve been advocating against.

Senator Boyer: Is there a film that has been produced that has been released on this topic?

Ms. Hansen: There certainly has. There is a film named Ama that came out in December. It was produced by some British filmmakers and centres around stories of survivors in the U.S., primarily Navajo women. I have to admit that when I watched the documentary, it was exactly the stories that Alisa was sharing about the clients she represents. There really was no difference. This is something that has been acknowledged in the U.S. as a widespread practice that is probably still ongoing, and it also isn’t receiving the attention in that country that it deserves.

Senator Boyer: Thank you.

The Deputy Chair: I would like to thank you so much for being here, Ms. Hansen and Mr. Prasad. You’ve brought an international flavour to our discussion, but at the same time you focused on what we should be doing within Canada to make thing better and to make changes. You’ve contributed to all of our knowledge here today. Thank you so much for being with us.

Honourable senators, before we adjourn, I’d like to mention that next Wednesday, April 10, our committee will continue to study the subject of coercion and forced sterilization and our witnesses will be representatives from three Indigenous and Inuit women’s organizations, so it should be very interesting.

(The committee adjourned.)