THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, September 19, 2024
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:33 a.m. [ET] to consider Bill S-250, An Act to amend the Criminal Code (sterilization procedures).
Senator Brent Cotter (Chair) in the chair.
[English]
The Chair: Welcome. My name is Brent Cotter, a senator from Saskatchewan and chair of this committee. I will invite my colleagues to introduce themselves, beginning with the deputy chair.
Senator Batters: Senator Denise Batters from Saskatchewan.
Senator Tannas: Scott Tannas from Alberta.
[Translation]
Senator Oudar: Manuelle Oudar from Quebec. Welcome.
Senator Dalphond: Pierre J. Dalphond, De Lorimier senatorial division in Quebec.
[English]
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
[Translation]
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Prosper: Paul Prosper, Nova Scotia, Mi’kma’ki territory.
Senator Boyer: Yvonne Boyer, Ontario.
The Chair: Thank you, senators.
I have just observed that, for the first time in a long time, that Saskatchewan, in the capacity of the chair and deputy chair, has done a takeover of this committee, and we’re very excited about it.
Let me remind us all: Before we begin, for all senators and other in-person participants, consult with the cards on the table in front of you for guidelines to prevent audio feedback incidents. That is of particular concern for the interpreters. Please make sure you keep your earpiece away from microphones at all times. When not using the earpiece, place it face down on the sticker in front of you on the table. Thank you for everyone’s cooperation.
Senators, we are meeting today to continue our study of Bill S-250, an Act to amend the Criminal Code (sterilization procedures). Before we begin, I would like to inform members that, after holding three meetings in relation to this bill, Senator Boyer, the bill’s sponsor, has shared a substantial draft amendment with all members of the committee. She did so last spring, and she intends to move that amendment during clause-by-clause consideration. Given the substantial nature of that amendment and this development, steering members felt that it would be beneficial for the committee to hear from departmental officials regarding the amendment, which would bring us up to date with respect to Bill S-250 as possible. It will provide us with a clearer understanding of its implications before we proceed to clause by clause or decide upon any other alternative course of action.
As such, I’m pleased to welcome officials from the Department of Justice Canada: Nathalie Levman, Senior Counsel, Criminal Law Policy Section; and Morna Boyle, Counsel, Criminal Law Policy Section. Thank you for joining us.
Although it is a bit unusual with Justice officials — we normally just pound away our questions to you — but in light of the circumstances, I’m going to invite you to provide opening remarks before we move to questions. Presentations will be five minutes, followed by questions from senators. Thank you.
Nathalie Levman, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: Thank you very much for the opportunity to speak to the sponsor’s proposed amendment to Bill S-250, which I understand from your remarks you are considering now. My colleague and I will attempt to explain the impacts of that amendment and answer any questions you might have.
The proposed amendment would first clarify that coerced sterilization is a form of aggravated assault and also expand the bill’s definition of “sterilization procedure” to include all sterilization procedures, regardless of whether sterilization is the procedure’s primary purpose and regardless of whether the procedure might be reversible through a subsequent surgical intervention.
In particular, the amendment would clarify that the law of assault continues to apply to all coerced sterilization procedures, just as it applies to all coerced medical procedures. It would do this by specifying that a sterilization procedure constitutes a wounding or maiming for the purposes of the aggravated assault offence in section 268. This is, as you all know, the Criminal Code’s most serious assault offence, carrying a maximum penalty of 14 years’ imprisonment. It applies where an assault wounds, maims, disfigures or endangers the life of the victim.
Because surgery necessarily involves wounding the patient, they constitute aggravated assault if they are performed without the patient’s consent.
The Supreme Court of Canada has clarified that the law of assault applies to any medical procedure carried out on a person without that person’s consent. That is from Morgentaler, 1988. The court has also clarified that assault law will recognize consent to applications of force that have social value, such as appropriate surgical interventions. That is from Jobidon, 1991.
Both jurisprudence and the Criminal Code articulate the law of assault, including the meaning of consent in that context. Assault was originally an offence at common law but is now defined in subsection 265(1). Assault law applies where a person applies force to the body of another person knowing that the person does not consent to that application of force or being reckless as to whether that person consents. That is also articulated in the Supreme Court of Canada’s Williams case, 2003.
Because the act of applying force means to bring something into contact with the body, a non-consensual medical procedure constitutes an assault. However, if a person who undergoes a medical procedure provides legally effective consent to that procedure, the procedure will not constitute an assault.
So what does “legally effective consent” mean? It means that consent must, first, be freely given; second, go to the nature of the act; and third, be given with the ability to understand.
These rules were developed at common law, but some are also reflected now in subsection 265(3) of the Criminal Code. That provision non-exhaustively lists circumstances in which consent to the application of force is not legally valid.
Notably, these rules are consistent with concepts of voluntariness, knowledge and capacity in provincial and territorial health law, such that compliance with the health law requirements regarding consent protects fully from criminal liability.
Freely given consent means the absence of fraud or duress. This rule is codified in subsection 265(3) which specifies that consent is not obtained in law where the complainant submits or does not resist by reason of violence, threats of violence, fraud or the exercise of authority. So this rule is at issue where a patient is pressured or deceived into consenting to a medical procedure.
Consent to the nature of the act requires a foundation of knowledge, which has been described as knowledge of the purpose of the operation, knowledge of the events and perception as to what is about to take place as to the character of what is done. This rule is at issue where the patient is not provided with sufficient information to understand the nature of the procedure to which they are consenting.
Ability to understand means that patients must be able to appreciate the nature of the act. This rule is at issue where the patient is a child or has a cognitive impairment.
That concludes our opening remarks. We welcome any questions you may have. Thank you.
The Chair: Thank you, Ms. Levman. That was helpful. I appreciate it.
We now have questions from senators, beginning with Senator Batters.
Senator Batters: I am wondering, given that this amendment — if, perhaps, Senator Boyer wishes to maybe — would that be okay, if Senator Boyer has anything to add to that, first?
The Chair: That would be an excellent suggestion.
Senator Boyer: I do have some areas that I can add to that. Then I do have a question.
For a bit of an explanation, at our last committee meetings in the spring session, it was clear to me that both senators and witnesses had concerns about the broad drafting of Bill S-250 and the potential for unintended consequences, especially in cases of emergency surgeries or medical procedures resulting in sterilization.
After consulting with the Minister of Justice and his advisers, we developed this amendment that significantly simplifies the bill, while maintaining the core goal: to make it explicitly clear that in the Criminal Code forced sterilization is against the law.
Clause 1 of Bill S-250 is amended on page 1, lines 11 to 22 with a for-greater-certainty clause, which clearly brings sterilization into the aggravated assault provisions in section 268. It is placed after the female genital mutilation section. The original Bill S-250 has been reduced from 55 lines down to 14 lines.
This amendment ensures that medical providers who sterilize someone during an emergency surgery are indeed protected by section 45. It clearly targets coerced sterilization, so it will not impact reproductive freedoms for those who wish to be sterilized voluntarily.
The reason why this bill is before you has been talked about many times over the past six years. The issues are not going away.
I spoke in detail as a witness before you. We brought in a survivor, Nicole Rabbit. We brought in other witnesses who have all agreed that something had to be done, because these women are still being sterilized. That was the birth of Bill S-250. We studied it at the Standing Senate Committee on Human Rights and produced two in-depth reports on it. We studied it in this committee over two days. We heard from 16 witnesses including the Counsel, Criminal Law Policy Director Counsel, Department of Justice Canada; and, the Executive Director and General Counsel of the Women’s Legal Education and Action Fund. We also heard from Alisa Lombard, who is leading one of the five class actions in Canada. She holds a Master of Laws and is a skilled courtroom litigator. We heard from medical experts. We heard from Indigenous midwives. Yesterday, the Canadian Medical Association apologized for forcing and coercing sterilized women in this country.
We heard from the Native Women’s Association and the Government of Canada and the survivor, Nicole Rabbit. This bill targets specifically the act of coerced sterilization in the aggravated assault provisions in the Criminal Code because we have simplified Bill S-250, but it will have an intended deterrence effect.
I listened to what the witnesses and my honourable colleagues and the Minister of Justice and Attorney General have said. I agreed. This simplified version removes any unintended consequences while still sending a clear message that forcibly sterilizing someone in Canada is illegal and will not be accepted.
The question I have for you is: We know that the goal of Bill S-250 has always been to stop people in Canada from being sterilized against their will. Do you think that my proposed amendment will help accomplish that goal? Do you have any concerns about the new approach that is being proposed in this bill?
Ms. Levman: Thank you. Yes, we did have occasion to think about what the impact of your proposed amendment would be.
I would like to underscore that the proposed amendment in no way alters existing assault law. However, it does underscore that the law of assault continues to apply to all sterilization procedures — all of them — that are performed without the patient’s legally effective consent. Many witnesses who, I believe, have come before you have noted the potential deterrent effect and raising awareness impact of — that the criminal law may have.
Also, your amendment underscores that valid consent must be provided to all sterilization procedures regardless of whether sterilization was the primary purpose, regardless of whether subsequent surgical intervention could reverse it. There is clarity there through the amendment that you have proposed.
As you have already noted, of course, it would also ensure that section 45 is available to medical practitioners who are in the course of saving someone’s life who cannot consent, for example, because they are unconscious.
You also addressed the chilling effect — concern that was expressed before you while you were studying this issue, before summer recess. Because your amendment will not in any way change the scope of assault law, it can no longer have that effect.
I hope that helps, senator.
Senator Boyer: It does. I have one more thing, chair, if I may.
Shortly before our meeting today, I was made aware of a concern that the Department of Justice Canada officials shared in relation to being “coerced” included before sterilization in the amendment.
As you explained, clarifying that a sterilization procedure is an act that wounds or maims for the purpose of the aggravated assault provision would underscore that the law of assault, including its consent rules, applies to sterilization procedures.
You are saying that we really should take that word “coerced” out of the existing motion that we have before us today. Is that correct?
Ms. Levman: I am saying, yes, that including the term “coerced” could be interpreted as requiring proof of something more than the absence of legally effective consent under assault law. That could make non-consensual sterilization procedures more difficult to prove than other forms of aggravated assault, which I understand is not at all the committee’s intention or objective. That is why the concern was raised.
The approach also ensures that your amendments are consistent with the approach of related provisions, in particular the female genital mutilation, or FGM, provision which you have already noted in subsections 268(3) and 268(4) of the Criminal Code. These clarify that excising, infibulating or mutilating female genitalia is a wounding and a maiming for the purpose of the aggravated assault offence, and they also clearly specify that any consent to that conduct is not valid in law unless it falls within some narrow legislated exceptions, and those exceptions are for legitimate medical procedures such as removing a cancerous growth or repairing the damage caused by FGM.
Only within the parameters of those exceptions will assault laws’ consent rules operate. In any other situation, the code specifies that consent to FGM is not valid in law. That is because FGM is not a legitimate medical procedure. It has no “social value” to use the Supreme Court of Canada’s language from its Jobidon decision.
That contrasts significantly with sterilization procedures, which, of course, are legitimate medical procedures that do have social value provided that legally effective consent is provided. That is why the assault provisions are silent on consent in respect to legitimate medical procedures. This means that the assault law consent rules always apply to legitimate medical procedures and that those procedures constitute assault where those rules are violated.
Perhaps it helps to think of it this way: What makes sterilization procedures coerced is the failure to follow the assault law consent rules.
Senator Boyer: Thank you. I agree that “coerced” should be removed from the motion in front of us today.
The Chair: Could we anticipate, for those of you who have not seen this — I have seen the version that I think Senator Boyer will present — that we will have the word “coerced” removed? Perhaps others have already seen that, but it is a tiny, little tweak on what we have been working toward in the last couple of days.
I want to, first, thank senators Boyer and Batters for providing an opportunity for a more complete explanation of where Senator Boyer is proposing to take this.
Now, for questions. Senator Batters.
Senator Batters: Thank you, both to the Department of Justice Canada lawyers for being here and to Senator Boyer for providing that information because that was helpful to start this today.
Is it correct that the Department of Justice Canada lawyers assisted Senator Boyer with these amendments? Is that correct?
Ms. Levman: Would Senator Boyer like to answer that question?
Senator Batters: I am wondering from the Department of Justice Canada — perhaps it wasn’t the two of you but other lawyers in the department who worked on this.
Ms. Levman: This is my area of expertise and Ms. Boyle’s also. Any work done on this file would have been done by us.
Senator Batters: So did you assist with the amendments or no?
Ms. Levman: Yes. The senator has just confirmed.
Senator Batters: I’m sorry?
Ms. Levman: Yes, Senator Boyer has just confirmed that. Yes.
Senator Batters: All right. Was that by reviewing the amendments that Senator Boyer prepared in providing your opinion, or was that by actually providing assistance in drafting the amendments?
Ms. Levman: We assisted through our minister’s office. That is how it would have worked. We were consulted. Legislative drafters with the Department of Justice Canada were involved.
Senator Batters: So the minister’s office asked you to provide that assistance?
Ms. Levman: Correct.
Senator Batters: Is that an unusual situation, that you would provide either a senator who is not a member of the government with sponsored government legislation, or an MP who perhaps has a private member’s bill, since this is kind of the equivalent of an MP’s private member bill? Is that an unusual procedure to help a senator or an MP who is not the government sponsoring person with that type of assistance?
Ms. Levman: We are only permitted to do it if our client asks us to do it.
Senator Batters: If the minister asks?
Ms. Levman: Yes.
Senator Batters: I know that you have been with Justice Canada for a very long time and you have done excellent work, Ms. Levman. I am just asking if that’s unusual in your experience.
Ms. Levman: It is unusual.
Senator Batters: Thank you. I note, Ms. Levman, that in response to a question that Senator Boyer asked, you clarified that in no way does this alter existing assault law.
Then you provided the proviso that this does provide some clarity on this matter. That was an issue I had raised with the previous Justice Canada lawyers who had come before the committee, some of your colleagues. I brought up the number of different types of offences that this could already fit within under the Criminal Code. I agree, then, that it is a good idea to provide clarity. I wanted to clarify that this offence could well already fall within the existing assault law — you are nodding your head in agreement on that. Yes, all right.
I do agree about the need to take out the word “coerced” out of what is paragraph 268.1(1) in this proposed amendment, because to say “coerced sterilization procedure” I think could also add another element that the prosecutor would have to prove in that case to say, “coerced.” Then in paragraph 268.1(2) the definition provided for sterilization procedure simply says “sterilization procedure” and then provides the definition rather than “coerced sterilization procedure.” Is that also part of your reasoning that you think it is problematic to include the word “coerced”?
Ms. Levman: I think the main concern about including the term “coerced” is that it looks like it adds another element to the offence that needs to be proved by the prosecutor.
Not only would the prosecutor have to prove violation of the assault law consent rules, but also that the sterilization procedure was coerced in order for it to fall within the amendment if “coerced” were retained in the amendment.
My understanding is that that is not the purpose. The purpose of a for-greater-certainty clause, and you pointed out that it is a for-greater-certainty clause, is to clarify the law, not to change it, just like the female genital mutilation provisions that are in subsections 3 and 4 of section 268.
Senator Batters: Yes. For those watching who may have been following this bill — it is not that long of a bill to begin with. It is two-and-a-half pages — what this proposed amendment from Senator Boyer actually does is it changes the wording on the bottom half of page 1, the operative section, and then it deletes the entirety of pages 2 and 3. It is really a substantial paring down of what is going to be included in this bill. I want to include that, visually, so people realize what we are dealing with here. Thank you.
The Chair: Senator Dalphond, you have been fully engaged in the conversations about the drafting of the original bill. It is now your turn to ask questions with respect to the contemplated amended version.
Senator Dalphond: I will not have many questions, perhaps just one for the officials.
Before that, I would like to say thank you to Senator Boyer for listening to those concerns raised around the table. I voiced some of those. I wrote you a note. I appreciate your understanding and the willingness to listen. We share the same objective, and we want to ensure that it is as good as possible. These are good things.
My second point is about the participation of Justice Canada. To clarify, for those who are listening to this meeting, I understand — and correct me if I’m wrong — that Justice Canada will now attend the clause-by-clause reading for MPs as well as for senators?
Ms. Levman: Thank you for the question. Yes, we usually do; we are usually invited to attend the clause-by-clause review of bills, whether they are government bills or private members’ bills, which include Senate public bills.
Senator Dalphond: I think the minister was sitting at the table, and he was asked — maybe it was another bill — if he will provide assistance, and he said “yes” — so with that came the instructions to assist. But certainly, I appreciate the fact that you assisted. It’s an important bill; let’s do it strictly and rightly.
I don’t know if you know, but in 2017, the Department of Justice assisted former senator Bob Runciman, a past chair of this committee, with a bill to facilitate voting on Bill S-233. So I guess this is not the first time that you are doing it. It is a rare occasion, but it is not the first time; am I correct?
Ms. Levman: Unfortunately, I don’t have a great overview of every Justice official and how they interact. In my experience, it has rarely happened, which is why I answered Senator Batters’ question as it being unusual. But you may have more experience in this regard than I do, so thank you for informing me of that.
The Chair: We will call Senator Dalphond as a witness on another occasion, I’m sure.
Senator Prosper: I don’t have any questions.
Senator Simons: I do not know the Criminal Code by heart. I’m looking at section 265. Under consent, as you mentioned, it enumerates the exercise of authority if “. . . the complainant submits or does not resist by reason of . . . the exercise of authority.” Would you interpret that to include a doctor who is perhaps in a position of class authority? A doctor is an authority figure but not like a police officer or an employer. Would a doctor, in your interpretation, still be a person exercising authority?
Ms. Levman: That’s a really excellent question.
First, we don’t actually have case law on that point, so I want to provide that caveat to what I’m going to say. What we do have are a number of Law Reform Commission of Canada papers from the early 1980s that deal with assault, medical treatment and the law, and even one on sterilization. They are fairly dated, but assault law is very ancient.
Senator Simons: We have been assaulting each other since Cain and Abel.
Ms. Levman: Unfortunately. So it is very ancient law. It was developed at common law. So much of what those reports say is still valid today, with the exception of a few cases I mentioned that were decided afterward.
One of the things those reports note is that there is nothing inherently authoritarian about the relationship between a doctor and a patient. Despite the fact there is an obvious power imbalance if you are unwell and going to a doctor for help, they are not in a position of authority, so says that Law Reform Commission report, in the same way that, say, some of the other officials you noted might be.
But I would point out that what is really operative here is fraud in particular in the case of coerced sterilization — cases that involve — and I know you have studied these cases at length, and there are a number of parliamentary reports that go over the different types of cases that have come to the fore, let’s say. We have recognized there are people who were lied to about the nature of the operation, whether it is permanent — “Oh, it’s easily reversible” or “It doesn’t impact reproduction at all,” neither of which is true.
That is more of an operative provision in the case of coerced sterilization procedures.
There is also duress, the principle of pressure. If somebody is told, for example, that if they do not consent, there will be some kind of consequence or negative repercussion, such as their child will be taken away, et cetera. That compromises the legal validity of the consent provided.
Senator Simons: [Technical difficulties] subsection 265(4), “Where an accused alleges that he believed that the complainant consented to the conduct . . .” if:
. . . 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.
That would also apply in this case, I presume — that a doctor could argue that he had a good-faith belief that the complainant had consented.
Ms. Levman: Yes, and that’s true of all assault law, but this provision is an evidentiary provision. It says that when you consider the honesty of that belief, you also have to consider whether there are reasonable grounds for that belief. So a bald assertion, such as “I believed something,” is not sufficient to show why you believed it.
Senator Simons: I had a lot of problems with the bill as it was originally drafted. I was concerned it infringed on the rights of trans youth to have gender-affirming surgery, I was concerned that it presumptively made all sterilizations criminal and I was concerned about a chilling effect it would have. Just to be clear: This no longer impinges upon the rights of trans people to seek gender-affirming surgery?
Ms. Levman: It comprehensively addresses the chilling effect concerns that this committee was discussing prior to summer recess, because it doesn’t change the law. There is no offence of performing a sterilization procedure. I understand that was the offence that caused the greatest concern among members of this committee, because the doctor, in order to exculpate themselves, would have to show compliance with a number of administrative measures that are more appropriate to provincial and territorial health law than the criminal law.
Because this amendment that Senator Boyer has put forward is a for-greater-certainty clause and serves to clarify the law only, it will not alter the scope of existing assault law and cannot have the effect you are noting.
Senator Simons: Thank you very much.
[Translation]
Senator Oudar: I first want to emphasize my support for the bill, despite my two questions. I thank Senator Boyer and all the senators. I’m new to the committee, so I thank you for all the work that’s gone into such an important subject. It’s a fundamental violation of women’s rights that we’re talking about. I thank my male senator colleagues for being here too. This is often a subject we only discuss amongst ourselves, and it’s a serious societal problem that we need to tackle together. Thank you to everyone. Thanks to the Department of Justice for the amendment.
I have two questions — actually, they’re concerns — about consent. At the very beginning of my career, I did a lot of work on the provision you mentioned: excision, infibulation and genital mutilation. That’s subsection 3, which is in the same section of the bill we’re currently studying.
On the issue of consent, for which there are exceptions, I don’t see how we can make an exception in relation to an act that would have been performed on an adult, obviously, but which would not involve bodily harm. Such an act always involves bodily harm. Why does the Criminal Code include this paragraph b) in subsection 3?
[English]
Ms. Levman: Thank you for that question. These are complex provisions. I want to acknowledge that at the outset. Female genital mutilation is just a label. When you look at the for-greater-certainty clause in subsection 3, it says that “wounds” or “maims” includes excising, infibulating and mutilating in whole or in part female genitalia but it specifies female genitalia. It doesn’t say FGM anywhere. Now, excising really means to cut, so it could potentially capture a situation where a doctor with the full informed consent — legally effective consent under assault law — of the patient removes something from, let’s say, the labia of a woman because it is a cancerous growth. Or we have had, I understand, cases where women who have been subjected to female genital mutilation would like reparative surgery. All of that requires excising those particular parts.
So if you have a provision like in subparagraph 4 that says “. . . no consent to the excision, infibulation or mutilation, . . .” is valid except where it’s a legitimate surgical procedure, you need that “except where it’s a legitimate medical procedure” or else doctors will not be able to help a woman who has a cancerous growth or would like the damage done by FGM repaired. That’s why the provision is set up this way. It is different from the provision that the senator has put before you today. But that’s because female genital mutilation is fundamentally different from a sterilization procedure. One is not a legitimate medical procedure and the other is. So the law must recognize valid consent to what they called in Jobidon, an “appropriate surgical intervention.” I think we would all agree that removing a cancerous growth from a woman’s genitalia to save her life is a legitimate medical procedure to which she should be able to consent and which the law ought to recognize.
[Translation]
Senator Oudar: My second question also revolves around consent. This time, it relates more specifically to the subject we’re discussing. I saw in the explanations that the Canadian Medical Protective Association requires three criteria for valid consent: first, that it be voluntary and obtained without coercion; second, that it be given by a person who has the capacity to consent — and I’ll come back to that; third, that it be considered informed consent.
As you know, we also talk about sterilization in relation to people with cognitive disabilities. I’d like to hear what you have to say about the notion of consent with respect to these female clienteles.
[English]
Ms. Levman: I would draw the committee’s attention to the Eve case, 1986, Supreme Court of Canada, which found the court cannot exercise its parens patriae jurisdiction to consent on behalf of somebody who is cognitively impaired to non‑therapeutic sterilizations. That’s because non‑therapeutic sterilizations are not for the benefit of the patient. So I think that issue was comprehensively addressed there.
You also raised provincial-territorial health laws. They will also be handled differently according to each jurisdiction, but the overall principles are the same, and there are capacity-to-consent rules in those statutes that must be followed.
So that would be my comment. My other caveat is that we are criminal lawyers, not health law specialists. I do know something about provincial-territorial health legislation, and I’m happy to refer you to examples, such as Ontario’s Health Care Consent Act, if the committee would like to review them. But we are not experts on that type of legislation.
Senator Oudar: Thank you.
The Chair: Are there other questions that people would like to ask of our witnesses?
Hearing none, let me extend on behalf of the committee our thanks for you taking the time to be with us answering our questions and providing a framework for all of us — men and women — on the committee, to understand this issue better. I think that was very helpful and in some cases necessary so it is much appreciated.
Where we are now, senators, is that the steering committee had contemplated on a tentative basis moving to clause-by-clause consideration. I wanted to confirm your willingness to do that, in which case we would begin clause by clause momentarily. Agreed?
Hon. Senators: Agreed.
The Chair: Thank you. We are going to turn to clause-by-clause consideration. This could be — I don’t want to say unusual but a simple exercise because I think Senator Boyer has, let me call it a substantial amendment, to the original bill as presented.
Is it agreed, colleagues, that we proceed to clause-by-clause consideration of Bill S-250, An Act to amend the Criminal Code (sterilization procedures)?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chair: Here we go, Senator Boyer. Shall clause 1 carry?
Senator Boyer: I have a motion. I move:
That Bill S-250 be amended in clause 1,
(a) on page 1, by replacing lines 11 to 22 with the following:
268.1 (1) For greater certainty, a sterilization procedure is an act that wounds or maims a person for the purposes of section 268(1).
(2) In this section, sterilization procedure means the severing, clipping, tying or cauterizing, in whole or in part, of the Fallopian tubes, ovaries or uterus of a person or any other procedure performed on a person that results in the permanent prevention of reproduction, regardless of whether the procedure is reversible through a subsequent surgical procedure.”;
(b) on page 2, by deleting lines 1 to 36;
(c) on page 3, by deleting lines 1 to 9.
The Chair: Thank you, Senator Boyer. Would you like to say anything further about this amendment beyond what you said and what we heard from the witnesses at this point?
Senator Boyer: No. I think I have said everything. Thank you.
The Chair: Thanks. Could I invite further comments and interventions by other senators on this point?
Hearing none, let me move to this question: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: I declare the amendment carried.
Shall clause 1, as amended, carry?
Hon. Senators: Agreed.
The Chair: Shall the preamble carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall the bill, as amended, carry?
Hon. Senators: Agreed.
The Chair: I declare it carried. Is it agreed that the Law Clerk and the Parliamentary Counsel be authorized to make necessary technical, grammatical or other required non-substantive changes as a result of these amendments as have been adopted by the committee, in both official languages, including updating cross-references and renumbering of provisions? Is that agreed?
Hon. Senators: Agreed.
The Chair: I declare that carried. Does the committee wish to consider appending observations to the report?
Senator Clement: This is not exactly the same iteration of the LCJC Committee of yesterday evening, but I made arguments to include an observation around the Criminal Code and the fact that we continuously reopen and close — for very valid reasons, because I fully support this bill — but the piecemeal fashion in which we review the Criminal Code. So this is an observation to be consistent, as we have included in past legislation to indicate we really would like to see a comprehensive review of the Criminal Code so as to address all of these different changes and make it a more comprehensive document.
The Chair: Could I invite any comments on Senator Clement’s proposed observation?
Senator Batters: I received this seconds before this discussion happened. It is obviously in the same language as the observation that we ended up adopting yesterday on Bill C-291, after a fairly lengthy discussion about other parts of it.
I reiterate my ongoing question whether these types of repetitive amendments are worthwhile to continually have on every bill. Someone said yesterday that, after a certain point, does the government start to pay less attention to observations they have previously not paid much attention to because it becomes so rote that it doesn’t seem to have any effect anymore?
That would be my concern about putting it in yet again.
The Chair: Other comments?
Senator Clement: I will respond if there are no other comments.
The Chair: There is, let me call it a dissent or reservation, about including it.
Is it the will of the committee to include the observation?
Senator Boyer: It would be okay. I read it now. I read it last night. Again, it would be useful. I agree with having this observation attached.
The Chair: To offer my own thought on this, the Law Commission of Canada is referenced here, the criminal law division of the Uniform Law Conference of Canada has been an outstanding professional body that addresses criminal law questions. It is another natural location for this. In fact, in many circumstances these questions could be taken up without the blessing of a governmental authority like a Minister of Justice.
If we can send this message, there is some value, not just to the government but to others who have an agency to be able to work on this. Speaking for myself, it cannot hurt. It doesn’t necessarily guarantee any action. Recognizing the need for these changes, we all get a little frustrated that we are pulling out a Band-Aid or a corrective measure in one-off ways.
It would be helpful for such an important piece of law, the criminal law of Canada, for it to be thought about in a slightly more organized and comprehensive way.
Speaking for myself, I would support the inclusion of the observation.
Senator Batters: As I pointed out yesterday, when I googled it because initially the ending sentence of this observation said the “newly revived Law Commission of Canada.” Then we took out “newly revived” because it was revived in 2021, three years ago. We took out the word “newly.”
That made me think right now we have been making the same observation on many different bills for the last three years. Do we have any indication the Law Commission of Canada has undertaken or done anything to indicate a willingness to undertake this type of comprehensive review of the Criminal Code, or the other body you spoke of?
Are we continuing to make this recommendation to bodies who have heard this many times and we don’t know if they are doing anything about it?
The Chair: Speaking for myself, I have no knowledge about the Uniform Law Commission’s criminal law agency, or that side of the equation.
I am aware through informal conversations with the president of the Law Commission they are working on, in dialogue and consultations, building an agenda for their work in the coming years. I don’t think that has been finalized, though I can’t say for sure. I haven’t spoken with the president for some months.
It strikes me that, if there is an opportunity for them to take it seriously, this is a good time to remind them this could be a project that would be meaningful.
They do have an expectation of working in the federal jurisdiction. This is a fairly big federal jurisdiction piece of law to be thinking about. I would say it’s an opportunity the Law Commission might well embrace at this point.
Senator Tannas: Why wouldn’t we ask you, chair, to write a letter to the commissions, and potentially the minister, to say we have been doing this — shouting at the rain here — for years, and with no acknowledgment, ever, one way or another? Do you have any plans to do anything? Should we continue to put this in every bill, or leave you alone to your devices, similarly with the commission. Presumably, they are looking for things to do. They must have some response.
The Chair: I would certainly be open to that, if it is the wish of the committee.
Senator Tannas: Include it in this one, so we don’t have to revisit this every time.
Senator Batters: Agreed.
The Chair: Is there a sentiment around the committee? It appears there is. I would be pleased to do that.
To the credit of the new president of the Law Commission, she is out there talking to people and generating intelligent ideas, and this fits in that category. With your blessing, and if you are comfortable, if there is some anxiety about the language that is put together, I might consult with the steering members. It would be a straightforward letter supported by the committee.
Hon. Senators: Agreed.
The Chair: I will do that. Thank you.
We’ll use the steering group as a sounding board for the content of the letter.
Returning to our decisions, are members in agreement with the observations?
Senator Kingston: I support this being included, particularly because in the last sentence it talks about all provisions in the Criminal Code that pertain to crimes against vulnerable persons.
Certainly, Inclusion Canada is interested in this bill, as well as others, in terms of the impact on people they serve and represent.
The Chair: Thank you for that point. It is, in some ways, an endorsement of the specific language that Senator Clement has prepared.
Are members in agreement with the observation?
Hon. Senators: Agreed.
The Chair: Thank you.
Is it agreed that the Subcommittee on Agenda and Procedure be empowered to approve the final version of the observations, although there is not much additional work to be done there, that they be appended to the report in both official languages, taking into consideration today’s discussion and with any necessary editorial, grammatical or translation changes as required?
Hon. Senators: Agreed.
The Chair: Thank you.
Is it agreed I report this bill as amended and with this observation to the Senate in both official languages?
Hon. Senators: Agreed.
The Chair: That concludes our work with respect to this bill.
Thank you to the officials who joined us and helped us through the consideration of the amended version of the bill.
It is fair at this point to thank Senator Boyer. She wants to say some more before we give her a round of applause.
Senator Boyer: I wish to thank the survivors who are watching us today; it’s because of you we did this.
I wish to thank everybody around this table as this touched everybody’s heart. Many people have been counting on you, and you have pulled through. Thank you.
I thank you from the bottom of my heart.
The Chair: Thank you, Senator Boyer, for leading this long-overdue work, and finally to this stage of fruition. Thank you, Senator.
Hon. Senators: Hear, hear!
Senator Boyer: Thank you.
The Chair: At this point, it is possible for us to adjourn.
I wish to extend my thanks to my colleagues for their good work on this, and in the dialogue we have been able to have with witnesses throughout.
(The committee adjourned.)