THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, February 29, 2024
The Standing Senate Committee on Legal and Constitutional Affairs met this day with videoconference at 11:45 a.m. [ET] to study Bill S-250, An Act to amend the Criminal Code (sterilization procedures).
Senator Mobina S. B. Jaffer (Chair) in the chair.
[Translation]
The Chair: Good morning. I am Senator Mobina Jaffer from British Columbia.
[English]
I now invite my colleagues to introduce themselves.
Senator Batters: Senator Denise Batters, Saskatchewan. I’m also the deputy chair.
[Translation]
Senator Carignan: Good morning. Claude Carignan from the Mille-Isles senatorial division in Quebec.
[English]
Senator Wells: David Wells, Newfoundland and Labrador.
Senator Klyne: Marty Klyne, senator from Saskatchewan. Welcome to our guests. Also, I’m from Treaty 4 territory.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 territory, Alberta.
Senator Boyer: Yvonne Boyer, Ontario.
Senator Busson: Bev Busson, British Columbia.
Senator Pate: Kim Pate. Welcome. I look forward to this session. I live here, in the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
[Translation]
Senator Clement: Bernadette Clement from Ontario.
[English]
The Chair: Thank you, senators.
Honourable senators, we are starting our study of Bill S-250, An Act to amend the Criminal Code (sterilization procedures). Before we begin, I want to recognize the tremendous work Senator Boyer has been doing for years in the Senate with respect to these issues. Senator Boyer, you work so hard every time you work on sensitive issues. Every member here wants to recognize your work. Thank you so much.
Before we start this study, there may be some difficulty for some viewers that could be triggering and distressing. If you require support, please note that there are services available 24-7 and toll-free through the National Indian Residential School Crisis Line, which is available for survivors and anyone affected at 1-866-925-4419. The Hope for Wellness Helpline is available to First Nations, Inuit and Métis people across Canada at 1-855-242-3310, or online at hopeforwellness.ca.
Before I introduce the witnesses on the first panel, Senator Cotter is also here and would like to introduce himself.
Senator Cotter: Good morning. I’m Brent Cotter, senator from Saskatchewan.
The Chair: I would like to introduce the sponsor of the bill, the Honourable Senator Yvonne Boyer. Senator, welcome, and thank you for the tremendous work you do. We will begin with your opening remarks before we move to questions from members.
Hon. Yvonne Boyer, sponsor of the bill: Thank you all for being here today and taking time out of our busy committee agenda schedule to hear about these issues. I will explain what the bill is and its importance.
Bill S-250 criminalizes the act of forcing or coercing a person to become sterilized without proper consent. It amends the Criminal Code of Canada by adding section 268.1, clarifies what a sterilization procedure is and adds safeguards for consent.
In my professional life, I have studied the intersection between health and the law and how it affects the lives of Métis, First Nations and Inuit people. Although sterilization has been interwoven through my academic life since early in my career, I have been actively working in the area of forced and coerced sterilization since 2017, when I was commissioned by the Saskatoon Health Region to conduct an external review of the Saskatoon Health Region’s tubal ligation policies. At this time, numerous Indigenous women came forward with the same history of post-Caesarean section and either being forced or coerced into sterilization in the same Saskatoon hospital, the core issue being the lack of consent or coercion to consent to the sterilization.
The external review began with the stories of 2 women, Tracy Bannab and Brenda Pelletier, then 2 more came, then 2 more, and then there were 11. A total of 16 women came forward at that time; however, some chose not to proceed with interviews due to fear and trauma. The report was released on July 11, 2017.
This external review laid the basis for the first class action lawsuit led by lawyer Alisa Lombard, whom you will hear from in this study. It is my understanding that there are at least five class actions occurring across the country related to this topic.
In 2017, after the external review was made public, the federal ministerial representative stated in an interview that:
. . . the issue demands urgent attention, saying it can be very difficult for patients to deal with health care providers who discriminate.
Unfortunately, this issue did not get immediate attention, and as a result, many Indigenous women and others have been sterilized since the report was released in 2017.
After we completed the external review, I became one of the national voices for this issue. While the current public discourse around this issue began with the external review, there is documentation of forced and coerced sterilization going back many years and generations, being part of official government policy and eugenic laws in Alberta and B.C. and being discussed in other provinces at various points in history.
Early on, I was directed by survivors of this horrific practice to create a law that would criminalize sterilization without consent. I was initially reluctant because of the harms that have historically affected Indigenous people within the criminal justice system. But I did introduce this bill after the two studies conducted by the Standing Senate Committee on Human Rights in 2021 and 2022. The first study brought together the disability community, the intersex community, Black women from Nova Scotia, lawyers and the government. From that study, we learned how deep the problems go. The second study, in which we heard directly from survivors of forced sterilization, was one of the most powerful, moving and heart-wrenching experiences of my time in the Senate.
During this study, the survivors were clear and spoke with a unified voice, asking that this horrific practice be criminalized. This bill is a direct response to their calls for action. This bill is also a response to Recommendation 1 from the Senate Standing Committee on Human Rights report The Scars that We Carry: Forced and Coerced Sterilization of Persons in Canada — Part II. It states “That legislation be introduced to add a specific offence to the Criminal Code prohibiting forced and coerced sterilization.”
While many examples of this shocking practice are confidential due to survivors wishing not to share their stories in public, a few examples highlight the importance of this bill and its swift passage.
As has been extensively reported on, in 2019, Dr. Andrew Kotaska sterilized, without consent, a 37‑year-old Inuk woman in the Stanton Territorial Hospital in Yellowknife. For some background, Dr. Kotaska has served as president of the Northwest Territories Medical Association. He has practised medicine for years and had professorships at the Department of Obstetrics and Gynaecology at the University of Toronto, the University of Manitoba and the UBC School of Population and Public Health. He has published articles on caring for Indigenous patients and, surprisingly, informed consent and ethics. Dr. Kotaska is the former clinical director of obstetrics at Stanton Territorial Hospital in Yellowknife.
Dr. Kotaska’s patient had pelvic pain and consented to having her right ovary and fallopian tube removed if necessary. While she was in surgery, Dr. Kotaska stated, “Let’s see if I can find a reason to take the left tube.” And he did. He permanently sterilized her. A complaint was lodged with the Northwest Territories Department of Health and Social Services, and a virtual hearing was held. The board of inquiry held that he violated the Canadian Medical Association Code of Ethics and Professionalism. He was suspended for five months — his contract expired, so he had served that — and had to pay $20,000 for the legal costs of the hearing and take an ethics course. He and the Northwest Territories Health and Social Services Authority are being sued for $6.5 million. He is registered with the Society for Physicians and Surgeons of British Columbia, and I’ve heard he is now working in the interior of B.C.
We have all heard of Joyce Echaquan, who, as she was dying, video streamed the vicious brutality she suffered at the hands of the racist nurses who taunted her. The inquiry that was held following her death revealed she had been sterilized without consent in 2019. In addition, Witness A, one of the survivor witnesses who testified at the committee’s second study, was also sterilized in 2018 — when she was 24.
Since I was appointed to the Senate, my office has been known as a safe space for people who have been sterilized without their consent. Over the past six years, I have spoken directly with hundreds of women — and some men — who have been forced or have been or are currently being coerced into a sterilization procedure. Some of these survivors were sterilized decades ago and are just discovering what happened to them now; others call me days or weeks after they were sterilized. Sometimes they call many times, never speaking, until finally they feel comfortable sharing their story. The most recent devastating call was over this past Christmas break in 2023. It was another Indigenous mother who was sterilized without consent.
At any given time, I have at least one or two people contacting me repeatedly, asking for help. For every example that became a news item after 2017, many more were not reported. This is a real issue happening today, as we speak, and not one of the past.
It is devastating for the Inuk mother, for Joyce Echaquan, for the witnesses who told their stories at the Senate and for all the others who are suffering now. I wonder — if Bill S-250 had been law, would it have stopped any of this from happening after 2017? Would this bill have created a split-second sober thought before Dr. Kotaska sliced off the only remaining fallopian tube of the Inuk woman who is now suing him?
I believe this bill will make a difference for the women and the doctors. Throughout this study, you will hear from legal experts, medical professionals and those directly impacted by forced sterilization. I implore you to listen to their words and how they view these changes. By considering and ultimately passing this bill, the Senate can show it takes seriously the concerns of all people who are in vulnerable states when interacting with the health care system.
I thank you for your years of support, your time here and your kind collaboration. I am happy to answer any questions you may have.
The Chair: Thank you, Senator Boyer; now we go to the critic of the bill, Senator Wells.
Senator Wells: Thank you, Senator Boyer, for not just being here but being the champion of this cause, something that many of us did not even know was on the radar of Canada until we did these studies, which I was a part of at the Human Rights Committee — for both studies. I also spoke about this in chamber almost a year ago at second reading.
Senator Boyer, you’re proposing additions to the Criminal Code which some people say — some critics of your bill, but not this critic of your bill — fall under sections 265, 267 and 268, which relate to assault or assault causing bodily harm or aggravated assault.
Why have there been no charges under these three provisions of the Criminal Code? Why should an additional layer of criminality be attached specifically for forced sterilization?
Senator Boyer: Thank you, Senator Wells. Those are good questions. If those provisions had been used, I wouldn’t be here today. Unfortunately, they haven’t been used. The research that I’ve done shows that there haven’t been any criminal convictions that have resulted from medical procedures on reproductive organs — none.
Maybe it’s important to have this bill as a deterrent. Maybe it would have caused that second thought before the doctor sterilized that patient. I’m hoping that’s what it will do.
I believe that having this bill has helped the survivors. They’ve called for it and called for it. It isn’t just the survivors; others have called for it. In 2019, I believe, the Assembly of First Nations asked me if I would do this. I said, “No.” I wasn’t ready to do something like that. It wasn’t until the survivors spoke at the second study of the Human Rights Committee that I said, “I have to do this. I have no choice.” The women need it. The women have been calling for it. We need to listen to the survivors. They’re the ones who know because they’re the ones who have undergone the surgery. That’s why it’s important.
Senator Wells: Thank you, Senator Boyer.
Senator Batters: Thank you, Senator Boyer, for being here.
I want to follow up on that line of questioning so that people who are watching this understand those Criminal Code sections that Senator Wells referred to. Section 265 is assault, section 267 is assault causing bodily harm and section 268 is aggravated assault. All of those are currently in the Criminal Code and could potentially be used to prosecute cases of forced sterilization.
Looking at your bill, one thing that’s very clear is that if this bill were to pass, proceeding through this bill rather than through those types of offences that already exist and have decades of case law and jurisprudence behind them, there are increased things that a prosecutor needs to prove beyond a reasonable doubt to have this new criminal offence proven. It would have to prove that it’s part of a sterilization procedure under the definition that’s in your bill. It would also have to be proven that it wasn’t done with consent. These are additional things that could make it more difficult to obtain a criminal conviction under your bill than under those sections that I previously mentioned.
Given that, do you think that’s a concern, namely, having all those different difficult things to prove? Police are going to have to delve into those by investigating, prosecutors are going to have to prove them and then a judge and/or jury will have to find that has happened.
Senator Boyer: Thank you, Senator Batters, for the question and the opportunity to go over that.
The assault provisions, sections 265, 267 and 268, and all of the provincial and territorial mechanisms, do require consent to medical procedures as well. We haven’t found anything. There hasn’t been any case law specifically on women being sterilized in those cases.
I believe that bringing attention to this sterilization aspect of 268(1) would be enough to deter it. It would be enough to have the doctors think about it when they’re in surgery. That is, “Do I not need consent to remove that other fallopian tube? Should I stop, take that sober second thought and get the proper, informed consent?”
It’s important to have this section in the Criminal Code specifically for sterilization because it has been such a problem. To be clear, it hasn’t only been a problem for Indigenous women specifically. We found that it’s also a problem for the disability community and for intersex people. The Black women from Nova Scotia that testified told us about over 200 women that had had hysterectomies. Was that necessary, or is something like this important to really take a second thought about the sterilization aspect of that surgery?
I believe this bill is important. It needs to be passed. If the other provisions within the Criminal Code had been used, then I wouldn’t have to be here today. Thank you.
Senator Batters: Senator Boyer, I see that under your bill, in subclause (2) —
The Chair: May I put you on second round?
Senator Batters: Sure.
[Translation]
Senator Dalphond: Senator Boyer, thank you very much for being with us this morning, and especially for taking up this important cause.
[English]
Thanks to you, things have been evolving and class actions have been filed. The colleges of medicine have been reacting and even agreeing to provide more training. What you did is an eye‑opener for many of us here and elsewhere. Thank you very much.
My question is more technical. It’s about the content of the bill as such. In terms of legal impact, I assume you have not consulted with the Department of Justice or with some legal officials or the Crown office about it.
Senator Boyer: I have definitely consulted with the Law Clerk’s office. I have gone back and forth with them on a number of issues about this because the first question was: Should this be included in the same section as female genital mutilation? That was seriously considered and, no, it shouldn’t. The aspect of sterilization is so far-reaching and wide that it needed to have a section of its own. That was one of the areas that I had kind of struggled with, along with where else to put it. Should it be in the assault provisions? That was another issue that the Law Clerk and I went over several times.
This is what we ended up with. If anyone thinks that there should be other amendments, I’m happy to look at them to see if there’s any way we can make this even stronger.
Senator Dalphond: My question is more direct: Did you consult lawyers specializing in criminal offences, for either the Crown or defence, to make sure? The technical aspects are sometimes tricky.
Senator Boyer: Yes. I’ve consulted with class action specialists on this. I’ve had a number of lawyers looking at this with me. Thank you.
Senator Dalphond: One of the proposed crimes is found in the last proposed subsection, (7). It’s called “Coerced sterilization.” It’s not directed to the doctor or the person who performed the sterilization procedures but to the person who may have induced the request for sterilization and coerced the person to agree to that process. That’s what I understand. That’s a different crime than the main crime, which is to perform these things without having the proper consent.
Senator Boyer: Yes, that’s correct. I can give you an example of that.
What I’m about to say is public, not confidential. One of the women that we interviewed for the external review had been told by both the nursing staff and other health professionals that as her first child had cerebral palsy, she needed to be sterilized for her second one. She was about to deliver. She didn’t want to sign the consent form. She was reluctant to sign it because she wanted to have more children, but she was told by the health care professionals that if she didn’t sign the consent form, that second baby could possibly have cerebral palsy as well. That is something that may fall within this section. She signed it because she didn’t want her second baby to have cerebral palsy.
Senator Dalphond: Thank you.
[Translation]
Senator Carignan: My question is about sterilization per se. In the French version, as opposed to the English version, the focus is on surgical sterilization, but I understand that there are also ways of sterilizing women or men using chemicals, for instance. If surgical sterilization is banned, it may open the door to the use of chemical methods. In English, there’s A and B, which isn’t the case in French.
[English]
Any other act performed on the person for the primary purpose —
[Translation]
Perhaps that’s part of it, but it’s really not obvious in French that this notion is included. Have you thought about that?
[English]
Senator Boyer: No, I hadn’t thought about that, but that is a very good point and it needs to be clarified. There is such a thing as chemical castration, and that’s something we could possibly look at when amending this to make sure that the French and English are coinciding exactly. I will make sure that’s looked into.
[Translation]
Senator Carignan: All right. Normally, in situations or cases where there are victims and the victim has relied primarily on sexual assault or privacy considerations, there is a section in the code that authorizes publication bans. I did not see that you had amended that section, which allows the name of the victim to be kept confidential when a charge is laid. Is that an adjustment to be made in this case as well? I imagine that’s something you also want to protect, the confidentiality of the victim, when that happens? Maybe it’s an oversight; I don’t know.
[English]
Senator Boyer: We’ll definitely have a look at that. That is a good point, and thank you for raising it. I will follow up with you. Thank you.
Senator Cotter: Senator Boyer and I knew each other as young people growing up in Moose Jaw. We knew each other as Yvonne and Brent. In this context, Senator Boyer, you are a hero to me and others for your leadership on this question.
I have two sets of questions. One follows up on Senator Dalphond’s. In the federal government’s response to the Senate report The Scars that We Carry: Forced and Coerced Sterilization of Persons in Canada — Part II, it indicated that the government was following this bill closely and that the Minister of Justice has met with the sponsor of the bill — I presume that was you — and has committed to working with her on this item. Has there been any development along those lines? I think Senator Dalphond is implicitly making the point that your leadership on this would be meaningfully enriched if the government made a commitment and maybe even introduced a government bill. Things would move more rapidly. Can you give us any sense of that?
Senator Boyer: Yes, Minister Lametti and I talked about this bill in great depth. I also spoke with Minister Miller. They were both very supportive of it. Their support is important, but I think this bill was directed to me from the survivors. The survivors are number one. They told me to do this. I don’t want the government to do this. I want to do this for the survivors. That’s critical.
The government never said that they wanted to take it over either. They said that they’re supportive, will help me and will do whatever they need to. That is where we are right now. We have the support of the government, and I’m pleased about that.
Senator Cotter: I have a somewhat more technical question. Issues around consent to what would otherwise be considered assault exists in different components of the criminal law, some of which were already referred to. This produces a somewhat more elaborate way of assessing consent. It might create the problem that Senator Batters identified; it might produce protections that are not otherwise not there. First, how does this approach to consent align with or differ from other dimensions of consent, such as in the context of sexual assaults? Second, how does the proposed sanction here compare with other kinds of sanctions for forms of physical assault of a serious nature?
Senator Boyer: Thank you for that question. That was one of my questions: Why 14 years? That aligns with many penalizations within the Criminal Code itself. It is actually mentioned 83 times within the Criminal Code, and it aligns with female genital mutilation as well. I think that’s probably why 14 years was settled on. I’m sorry — what was the first question?
Senator Cotter: There is an elaborate construct for achieving consent here. How well does that align with other situations of consent that are addressed in the Criminal Code for assaults of a serious nature?
Senator Boyer: The concept of consent here was developed from what we heard and saw. When you have an Indigenous family that has been affected by something like a sterilization, you’re not dealing with one individual. You’re dealing with generations of individuals. The consent that we find here is specific to a complex sort of life that has been colonized and subjected to all of the aspects of racism within the health care system.
What we come out with here with respect to consent are four pillars of consent that are really important for assessing the capacity of the human being that’s giving consent and looking at all of the risks and consequences of that particular type of consent.
If a patient comes to the doctor saying, “I want to have a tubal ligation,” and the doctor says, “Okay, I’m going to tell you all of the aspects of what you could do instead — there is birth control and other types of contraception,” there needs to be a proper time for that patient to assess what the doctor is saying, and not in between contractions, which has happened, where the doctor says, “I’m going to get consent in between contractions while she is panting.” The altered state just doesn’t do it. Also, there cannot be coercion. A patient goes into the doctor’s office and says, “I’m here for my checkup,” and the doctor asks, “Wouldn’t you like to have a tubal ligation?”
The aspect of this bill that’s a little different is that the doctor is not allowed to mention it. It has to be voluntary. The patient will come many and say, “I want to have a tubal ligation.” It’s not, “Do you want a tubal ligation?” I think it is a little different. The aspects of consent within this bill are different than what you find in other aspects of consent requirements within the Criminal Code.
Senator Cotter: Thank you. That’s very helpful.
Senator Pate: Thank you, Senator Boyer. I’m going to ask you to expand on what some others have asked. It is a conversation you and I have already had, though not in this venue.
We all know and struggle, particularly when talking about violence against women and, in particular, violence against Indigenous women, with the use of the law, partly because it provides a standard of behaviour we expect from people, in this case medical professionals, and then there is the penalty piece. For the victims of violence, oftentimes the only thing they can think of or the only thing ever offered up is criminal law reform. As senators, that is one of the few areas where we can have an impact.
I want to provide an opportunity for you to discuss some of the other options you looked at. You mentioned Joyce Echaquan. How do we deal with the real racism and misogyny that may prevent people from ever being criminalized in this context? Doctors will have resources to lawyer up; professional standards bodies will lawyer up. In my humble opinion, I really worry that this will become another slap at women because people may not end up criminalized and it may end up causing additional harms.
If you are comfortable, could you comment on the suggestion of the Native Women’s Association of Canada that free, prior and informed consent, or FPIC, the UN Declaration on the Rights of Indigenous Peoples model, be the model that’s used?
While Joyce was being treated brutally and inhumanely, other people in that same hospital were being treated appropriately. How do we get at those sorts of issues? You mentioned the deterrent value. That’s part of the role of criminal law, but what are some of the other mechanisms that need to be put in place that this may help propel?
Senator Boyer: On the issue of free, prior and informed consent, that’s the first thing I brought up to the Law Clerk. I said, “I want free, prior and informed consent right through here.” It is something different than what we see in the Criminal Code. I was told that the issue of free, prior and informed consent is already implied in there. If I could put it in, I would. Maybe Senator Carignan and I can talk about that.
I had been working on some other things before I began wanting to do this bill. When I became a senator, my initial speech was about forced sterilization. It has been part of my life since I was a little girl, but it was not at the centre of it then as it is now. I should tell you the story of how it all happened.
I was a Canada Research Chair in Aboriginal Health and Wellness at Brandon University. I was often outspoken about issues affecting Indigenous people, particularly with respect to health, because my work involved studying the intersection between health and the law. I received a phone call from Betty Ann Adam at the Saskatoon StarPhoenix, who said, “There are two women in my office who say that they’ve been sterilized against their will. I want to know what you have to say about that.” I said, “Well, that’s against the law. There are assault provisions. There is Aboriginal law and international law. It’s against inherent law.” I went on and on. She said, “Okay,” and then published the first article about it. It was about Tracy Bannab and Brenda Pelletier. They came forward and, as I said before, many more women came forward.
I started thinking, “How will we stop this? This is crazy.” I was like many of you, who probably think, “Didn’t that happen in the past? Why is that happening today?”
I started thinking about when this would stop. Then I got a phone call from the Saskatchewan Health Authority in the Saskatoon Health Region. They said, “We want you to do an external review of our tubal ligation policies.” I said, “Well, I have been badmouthing you across the country. Here are four or five interviews about what I said about you guys.” They said, “No, the elders asked for you.” I said, “Okay. If the elders asked for me, I will talk to you and consider it.” I did that because I wanted to make sure that the report was public. After doing that, I would have the resources that I needed to do a proper job and have somebody with me that knew the hospital. I was an old operating nurse, so I knew the culture of the hospital. I had Dr. Judy Bartlett, a Métis physician, with me. We both knew the hospital culture and worked together to put the external review together. We had a helper who spoke Cree because the first language was Cree. We went to the catchment areas of the Saskatoon Health Authority, which has a huge population of 300,000. We put up requests in bingo halls, health areas, health departments and stores. We had people calling us with a Cree speaker on the other line. This is how we were able to talk to these women and get their stories about what was actually going on.
That was the beginning. That was the heart and soul. We had a well-known Cree elder with us, Elder Mary Lee from Saskatoon. We had her help with the interviews. It was so traumatic listening to the women who had been so traumatized that every morning, the three of us would hold hands and pray for the strength to get through that day to help these women. When the women being interviewed fell apart, Mary would hug them and say, “I’m going to hug you back together.” She would hold them until they stopped crying and then we could carry on with the interview. That’s how this all began. That’s how this bill began.
When I came to the Senate, my first speech was about sterilization. I thought, “Well, here I am. I’m a senator. I’m going to talk to the government and find out why we’re still seeing this happening.” So I did. I had meeting after meeting with the government. They tried. They put together their Indigenous Advisory Group and told me they would do culturally relevant education. I’m thinking, “But who will stop the cutting?” I’m getting these answers, but I’m not quite getting it because I’d never worked for the government before. I didn’t know how their hands could be tied. They were working with national Aboriginal organizations who were representing the survivors, but they weren’t representing survivors. They were representing their constituents.
So the sterilizations continued, and I felt like I was getting nowhere. I then met with Alisa Lombard, from whom you will hear shortly. We both said, “We have to figure out a way to give all these survivors a voice.” We put together a non-profit corporation. We had the objectives laid out by them. We met with them on Zoom all across the country — by this time, it was over 200 women. The non-profit corporation became the Survivors Circle for Reproductive Justice. You will also hear from a board member today about this. Finally, the women could speak for themselves, with one unified voice, and they were now able to access some government funding, so I am hoping things will change a little.
This bill is one aspect of a huge national strategy that must occur. Maybe it can come through the non-profit corporation, but we must do some hard-core data gathering. My office has done the best that they can. I’ve met personally with about 200 or more people who have been sterilized, men and women, and the office has also gathered research information on 12,000 people who have been sterilized. A lot of that is anecdotal information, but we need a national data-gathering centre. There are many things we need to look in terms of the totality of reproductive injustice, and that’s a part of it.
So, yes, I’ve been working hard in other areas as well. The bill is one area that I think is very important. It’s something that the survivors have asked for. It was Recommendation 1 of the second report of the Standing Senate Committee on Human Rights. Thank you for asking.
Senator Clement: Senator Boyer, thank you for that answer. That’s very powerful and difficult to hear.
The Criminal Code is a difficult thing. It includes a lot of sections that are already supposed to be used to combat issues, but we know that those sections are sometimes not used, especially when we’re talking about systemic racism. We amended the bail reform bill we just went through, adding a section to force judges to include in the record of proceedings that they considered the backgrounds of the accused from vulnerable populations. It was already there, but they weren’t doing it.
So I understand your point about it not being efficient in terms of how the Criminal Code operates; I understand your point about making a specific reference so that you’re speaking to systemic discrimination.
Can you lean into your hesitation? You hesitated because the criminal justice system is not a safe space for women, for Indigenous and Black women. Can you lean into your hesitation around that?
The second piece of the question is this: How have other communities, like the disability community and Black women you referenced, informed this process, specifically?
Senator Boyer: Thank you for that.
We had several Black women come for the second study. We received their testimony on how difficult it was. One of the women was 15 years old. She gave no consent, and they gave her a hysterectomy. It was appalling. As I said, that testimony was probably some of the most difficult I’ve ever heard.
There was a study done by Dr. Josephine Etowa in Halifax in certain areas, and Senator Bernard was very helpful with this. There was a study of about 250 women who had been given hysterectomies.
There needs to be more work on that. There needs to be more work in the disability community and the intersex community. The testimony we heard during the first study at the Human Rights Committee was phenomenal. It was eye-opening. It showed me how we’ve just barely touched upon these issues and that we need to have a large, overarching national body to look at them.
I believe the Survivors Circle for Reproductive Justice is a good start. We need to feed into that and keep it going.
I can’t remember your first question.
Senator Clement: It was around the Criminal Code and you hesitating to go into this criminal justice space, which we know isn’t effective a lot of times or is actually worse.
Senator Boyer: Right. Senator Pate and I have talked about that at length for the last 25 years, actually. I was one who said, “No, I’m a health care professional. I don’t want to see this. I don’t want to see a bill like that. It’s just going to be turned against the women.” But the survivors are the ones who have said, “We need and want this.” There was no hesitation, and it wasn’t until I could feel in my heart that it was the right thing to do that I could bring this bill forward. That’s it.
We know the statistics with respect to Indigenous women. We know that it has been difficult. There are always risks with the Criminal Code, but I believe this is a very good bill and will help deter what women have had to undergo. We may save the next generation from being sterilized.
Senator Clement: Thank you, senator.
Senator Klyne: Senator Boyer, we’ve always chatted about a number of things. Today, I can sense your commitment and conviction about this, so thank you for that. You’ve poured yourself into this.
Under what circumstances would a patient ask for a sterilization procedure? I ask that maybe at the expense of revealing my naïveté. I think I heard you reference something along the lines of birth control, but what other purpose would there be?
Senator Boyer: Thank you. I did want to mention that.
I was commissioned by the Saskatoon Health Region to have a look at their tubal ligation policies. When I did, I told them what I thought, and they immediately enacted another sterilization policy. It was almost like a knee-jerk reaction; the women would not be able to access a tubal ligation unless they had seen their family doctor. They would have a relationship with their family doctor, and the family doctor, in the end, decided whether it was a good thing to have the tubal ligation. In theory, that’s a great idea. However, we have Indigenous women from the North who don’t have a family doctor and come to the South to deliver.
They had the intention of trying to make it better, but it had negative consequences for Indigenous women because they live in remote areas. Indigenous women don’t always go to the doctor. Indigenous women do want tubal ligations, and they should have tubal ligations when they want them. They need to keep that agency and ability to be able to know it is their body and if they want a tubal ligation, they can get one. They don’t want someone telling them that they’re going to get one. They want to be able to control that.
That’s definitely —
Senator Klyne: I have another question that is maybe on the opposite end of the spectrum.
What would drive a medical practitioner to resort to deception or the use of intimidation, threats, force or any other form of coercion to cause or attempt to cause a person to undergo a sterilization procedure? What’s driving that, and what’s the goal?
Why would others in the room stand idly by without taking action or showing concern?
Senator Boyer: Thank you for asking that question. That’s another good question, because I’ve stayed up at night wondering the same thing for many years. What I have come up with is that it’s the concept of Indigenous people not really being worthy. They were wards and had to have guardians, and they didn’t quite know how to deal with things themselves. It is that kind of thinking. It is racism within the health care system. It is sometimes the superior attitudes of doctors, and the powerful versus the powerless. That kind of judgment call on whether a woman has had —
I’m going to give you an example. I was checking into a hotel late at night. I was in the West and by myself. I had my suitcase, I was rolling it in and there was nobody other than the clerk behind the desk. I said, “I’m here to check in.” She said, “Oh, hello, senator. You’re the senator of sterilization.” I replied, “Well, that’s an area I work in. I do work on that,” and I was a bit taken aback. She was a young woman. She looked at me, her eyes got really big and she started to cry. She said, “They did it to me.” I was really taken aback by this. She said, “They did it to me when I was 21, and I had four children. I’m now 35 and have a new partner. My kids are grown. I can’t get pregnant, and I don’t have the money for in vitro fertilization.” I was holding her, she was holding me and we were both crying. I was thinking, “Oh my God. Why would someone sterilize a woman at 21?”
The second witness of the second study that we did was 24 years old and had two children at home, and they sterilized her. Why? She’s Indigenous — that’s why. Because they can do it — that’s why.
The Chair: I have a question. I’m glad you didn’t go with female genital mutilation, or FGM, because FGM normally happens to young girls. It’s not something that happens to adult women, and there has not been one prosecution of female genital mutilation. I’m glad you didn’t follow that path.
I had other questions; however, we’ve almost run out of time, so I’m not going to ask them.
[Translation]
Senator Audette: Senator Boyer, I, too, think you are truly a great woman and a great leader.
Since I come from a region called Quebec, and knowing that Professor and Dr. Suzy Basile works with you, I understand that the Quebec Superior Court recently authorized a class action. Twelve Atikamekw women from Joliette hospital, the same hospital where Joyce Echaquan died, claim to have undergone forced sterilizations. We are talking here only about one territory, not about… I won’t mention all the nations.
Also, we understand that, after following you around in other pairs of moccasins, the Society of Obstetricians and Gynaecologists of Canada and the Society of Physicians, which you mentioned, will recognize that systemic racism exists. Some will embrace Joyce’s Principle.
How do you think, because of this necessity — to me, this bill is necessary — that we can get the federal government and the provinces, in this case Quebec, to stand together to make sure that everyone understands that they have the right to say yes or no, in a protected process and so on?
[English]
Senator Boyer: Thank you. When I go out and speak to groups of people, it’s like seed planting. I say something, you say something and she says something, and the seeds get planted. Then one more woman comes forward and then another, and then they realize that they shouldn’t have been sterilized. They say, “You know, I didn’t really sign a paper, and I know I’m sterilized.” So I think there’s education. It’s a several-pronged approach, like Senator Pate and I were saying. We need education. We need education in kindergarten all the way up through school for children to know they have autonomy over their own bodies and that they can say no.
I have worked with Quebec since the beginning — since Suzy began — and every step of the way. I don’t know if there’s anything else that could be covered differently in Quebec. I know they’ve had a difficult time recognizing that they even have racism in Quebec. I think that more education, more people talking, more events and passing this bill is going to help everybody.
Thank you.
The Chair: I know, senators, that we have gone longer, but I didn’t want to stop Senator Boyer. I will ask Senator Batters to ask her question. I’ll give you two minutes.
Senator LaBoucane-Benson: Thank you, Senator Boyer. I’ll be really quick. We know that historic trauma includes the intergenerational transmission of hopelessness, helplessness and powerlessness. How that manifests is often that Indigenous people have a real fear of anybody in a position of power or with the authority to make decisions that affect their lives. How might that affect the doctor-patient relationship and the doctor’s capacity to actually get informed consent from an Indigenous woman or man?
Senator Boyer: I think a lot of work needs to be done. You’re going to hear from Dr. Unjali Malhotra, and she’s going to cover that very deeply. I’ve been working with the First Nations Health Authority in B.C. on the topic of consent and coercion and the changing of policies.
Senator LaBoucane-Benson: I know that oftentimes in our systems, even with a law like this, the law won’t necessarily ever be used; however, it might cause changes in the health care system. Hospitals will not necessarily move to protect Indigenous women, but they will protect doctors. By protecting doctors to make sure they get informed consent, what kinds of structures might they create in hospitals to ensure that Indigenous women have free, prior and informed consent?
Senator Boyer: It will be the policies. Each hospital will have policies. I believe that British Columbia is taking the lead in that area and that they’re going to have a good template and prototype for other provinces to follow.
Senator Batters: Given that you’ve talked about the gaps you’ve seen through the years and perhaps decades in the enforcement of existing laws, which we talked about earlier regarding the protection of victims of forced sterilization, how do you think Bill S-250 would concretely ensure that its provisions will not remain unenforced? What specific guarantees can you provide to make sure these new measures will be effectively implemented and will offer real protection to victims, as opposed to current provisions that seem not to be enforced?
Senator Boyer: Thank you. I can’t guarantee anything, but I can assure you that this will go throughout provincial medical associations. It will be an important document for doctors to follow too. I think it will provide some protections for them as well in that it will show them what they need to do. It will show them they need to create policies that are going to be in line with this bill, and that it is very important.
I have no guarantees of anything, ever. I can guarantee I will work at it. I think there are going to be other people — other lawyers as well as the medical associations — working in this area. I think that provincially and federally, this will be something that will be very important for people to be aware of to help draft policies around what we have here.
The Chair: Thank you, Senator Boyer. You have really touched us, and we all feel we need to do more. Thank you so much.
For our second panel, I would like to welcome Alisa Lombard, Principal Lawyer, Lombard Law; and Nicole Rabbit from Survivors Circle for Reproductive Justice, who is accompanied by her daughter Shelby Kaylee Kateri Pooyak. Welcome. We will start with your opening remarks.
Alisa Lombard, Principal Lawyer, Lombard Law, as an individual: Thank you so much for inviting us here today. I want to acknowledge that we are on the unceded, unsurrendered territory of the Algonquin Nation as uninvited guests. We’re very grateful to the committee for sitting and listening to the issues around this very important matter today.
It occurred to me while Senator Boyer was speaking that I could do very little to add to the plentiful information that is already before you. To the extent that I can be helpful and supportive of the survivors, I would simply refer to my testimony before the Senate in the study of April 2019. I think there is some information in there that could be helpful. I also want to say a few quick words about context and measure. I think it is only appropriate that the rest of my time be taken by the genuine, true experts in this matter: the survivors.
To the point of context, and Senator Boyer laid it out very clearly, we are in a set of circumstances whereby this heinous human rights violation continues to occur. There are many moving parts to that heinous human rights violation. There are many reasons, but in 2024, there are no more excuses.
In the context of that undeniable reality, I think it’s important to understand measure. By “measure,” I mean it’s important to examine the depth, the far-reaching nature and the level of the harm that is caused by this practice and its operation with impunity, and to respond in kind as legislators.
With that, there is really nothing I could add to this discussion apart from trying to be helpful in response to questions. I think it would be highly appropriate that you hear from the real experts in this matter. Thank you.
The Chair: Ms. Lombard, that’s very generous of you, and I appreciate what you said.
Senators, I will ask the clerk to make available the transcripts from the Human Rights Committee. If you’re uncomfortable, we will leave it, but this committee is often not part of that committee, so they may not have heard what you said at the Human Rights Committee. I will make that available to this committee.
Ms. Lombard: In terms of a synopsis, we shared some of the stories from the survivors to really illustrate and be clear about the human component of this issue.
Today, you have the great honour of the presence of a survivor, so there is no need and very little propriety attached to my sharing that information when you are before people who can share it.
The discussion, or the presentation, at that time really had to do with how pressing this issue was and how the issue was extremely stubborn as far as getting into reparation. The very thoughtful questions posed by the honourable senators this morning of Senator Boyer all touch upon the wheels, the operationalization of countering this issue, which is highly stubborn.
What I would say in reference to context — and I mentioned this in April 2019 — is that the survivors have been abundantly clear in what their objectives are. Those objectives relate to prevention. If someone can be saved the fate of having to live with a lifetime of something they did not want that so deeply affects them, then that is where some energy should be put, and that’s where we see Bill S-250 as living, in many ways, because it has that tremendous deterrent effect.
We can’t forget — and I think this has been mentioned by the honourable senators — that there is such a gender component to this issue. Let’s visualize for a moment, if we may, a birthing woman, their partner standing next to them. Could we conceive of a circumstance in which a physician or health practitioner of any ilk within a health institution would approach that man and say, “It is time for vasectomy immediately”? No, we can’t, but we can ask the woman whose legs are in stirrups. I am sorry to use those very descript circumstances to implore this committee to consider the very serious nature of these violations, but these are simple facts. This is what happens.
One of the first objectives was that prevention and awareness, and a lot of work has been done around that in large measure — thank you to Senator Boyer.
The second component, which is important in this committee’s study of the proposed criminalization of forced sterilization, is accountability. How do we hold those responsible accountable? Some may view 14 years as a very long sentence. I would speculate — and perhaps it’s a bit more than speculation — that any woman who lives with unwanted infertility might view that as a form of prison as well. So let us be measured in examining what the proposed sanctions to these very terrible violations really are.
The third objective was reparations, and that continues to be worked on. How do you repair the loss of the ability to make life? There is no financial or pecuniary amount that can bring that into knowing or understanding. I’m sure that no one around this table, none of these honourable senators or the people in the gallery, can imagine or conceive of your life without the little ones that you have.
The Chair: Thank you, Ms. Lombard. Ms. Rabbit, welcome. We really appreciate you being here. We know it is not easy and that’s why we appreciate your daughter being here with you. Please take all the time you need to relate what you have to say, and know that if you want to come back, you can. We really salute you for being here. It’s not easy for you. Thank you. Ms. Rabbit?
Nicole Rabbit, Survivors Circle for Reproductive Justice, as an individual: Thank you. Oki, Nitaniko Piitaki.
My Indian name is Eagle Woman. My English name is Nicole Rabbit. I have my daughter here, as my support person, as well as my grandson. I’m kind of emotional, but I will work through this.
My mother recently passed away, on January 21, 2024, which was just last month, at the age of 78. I know she is here with me now. I can feel her.
To begin, we were both coerced into being sterilized around the age of 28 after having four kids. She had four kids; I had four kids.
Here is a collage of my mother. Basically, this is just a quick glimpse of her life and four generations. This is her as a toddler at residential school, where she was basically raised since birth because her mother worked at the residential school as a cook, so the nuns and priests were basically her caregivers during that time.
She made her way through residential school. Here is a picture of her in her teens. Over here is a picture of her from when she graduated with her master’s degree. Here is a picture of her four kids — me and my siblings. I’m the youngest. She was coerced into being sterilized in 1973.
The next picture is my mom, myself and my daughter Kateri, so that would be three generations. The last picture here is my mom with her great-grandson.
This is my mom. This is just a quick glimpse. She did so much in her lifetime. I can’t speak on most of her things. But we’re here today to speak on coerced and forced sterilization. I didn’t know that had happened to her until I was speaking with Alisa. It was after that when we started having deep conversations, and we talked about why it happened, our feelings and our hurts.
My mother was a very strong, gentle lady. When she said something, she meant it. She didn’t go rambling on about this and that and never spoke of herself. She always spoke and stood up for other people.
It’s kind of hard to sit here because I still have not processed the passing of my mother. There were so many things that happened in this last month that she knew I was doing, and which she was part of, so I’m not going to go where I am.
With the recent passing of my mother Mary Dorine Rabbit, Saipiaakii or Charging the Enemy Woman — that’s her Blackfoot name — I felt it was very important for me to be here and support Senator Yvonne Boyer and Alisa Lombard in regard to Bill S-250, An Act to amend the Criminal Code (sterilization procedures).
Before my mother passed away, I was her caregiver. I was the one who was looking after her, and then I became her power of attorney, or POA. She did everything up until the point when she appointed me as her power of attorney.
I was able to spend a lot of time with my mom, which I always have, but the mother-daughter relationship kind of turned into the caregiver and patient; at the same time, we always had that strong bond.
My mother was my go-to person, the one I would call, the one I would ask for advice. It didn’t matter the time — she always took my call. She always had something to say that would make me stronger, to keep me moving on, and not only for me; she was the rock of our family. Her passing will really take a toll on all of us. I have to be that strong one now and start taking care of my nieces and nephews, their kids and grandchildren, my children and grandchildren and the generations to come.
It’s very difficult to sit here in front of you all, and it’s traumatizing to speak of the trauma and the hurt that happened to me. I get emotional and don’t want to go there, so I’m using my mother’s strength. I will use my mother’s strength and courage, which she instilled in me, to speak to you today.
As I said before, I’ve held long discussions with my mom regarding coerced and forced sterilization, and I spoke with my sister last night and said, “What do you think Mom would say?” I know what my mom would say and she added, “Okay, so we’ll go like that.” I said, “All right.”
So this is something that my mom would have said if she were sitting where I am today. As I said, she was to the point.
She would have said: Someone has to be accountable for the act of genocide that we Indigenous people have faced and continue to face in regard to forced and coerced sterilization. We Indigenous people have always been poorly treated, and we would like it to stop and to stop systemic racism. Therefore, the recommended amendment must be stipulated in the Criminal Code. Our human rights continue to be violated to this day.
That’s something that she would say, kindly, with an open heart.
To conclude, I actually want an apology for what happened to me. The Indigenous women need an apology. My mom didn’t get an apology. You took generations from us. I could have had more kids. My daughter could have had more siblings. I could have had more siblings. Our family would have been bigger. It’s like you wiped out a generation. That’s it. Thank you.
The Chair: Thank you, Ms. Rabbit, for your very touching testimony. It has touched us all, and I know that I’m speaking for the whole committee in saying whatever part we could have played in this we take responsibility for too and want to apologize to you. I know that is not the apology you may be looking for, but as chair of this committee, on behalf of this committee, we apologize to you and your daughter, who has listened to this very hard thing her mother is going through, and that is her history too. We thank you for being here because you are teaching us. Thank you.
Senator Batters: Thank you to all of you for being here. I can only imagine how difficult this is, and one of the first things I wanted to say to you, Ms. Rabbit, is I’m so sorry for the loss of your mom.
I think you said her name in Blackfoot, but what is your mom’s name so we can honour her with knowing that?
Ms. Rabbit: Her English name or her Blackfoot name?
Senator Batters: Both, please.
Ms. Rabbit: [Indigenous language spoken], and the translation of her Indian name, her Blackfoot name, is Charging the Enemy Woman.
Senator Batters: That’s a great name.
Ms. Rabbit: Her name really represented her but in a gentle way. It wasn’t as if she was going after — She was so gentle.
Senator Batters: Thank you.
Ms. Rabbit: Her English name is Mary Doreen Rabbit.
Senator Batters: Thank you. We honour her today, and you and her granddaughter honour her through your presence today.
When Senator David Wells gave his speech about this bill in the Senate, he told us that despite existing laws, more than 12,000 women have undergone forced sterilization without any charges being brought against those responsible. That was the estimate that he provided.
I’m wondering if you could shed some light on the reasons you think, despite the fact there are some provisions in the Criminal Code that could have been used for those types of offences, there seems to have been a total absence of charges or convictions in those kinds of cases.
Ms. Rabbit: We have always been treated very poorly, and it was almost to wipe out the Indian. Going back to the residential school, you’re taking the child away from the parents, and they didn’t know what happened after that. If you take a child away from the parents, the loving mother and father, what are their roles now? What can they do when all they want is their child? There is no way that I would ever allow that. I would fight. Back then, it was allowed. They had no say, or the parents would go to jail.
My mom always spoke about what happened and how we were treated, but she always had a solution. She always worked hard and built programs. I was really hoping that she would see the day that justice would be served. I know she’s here in spirit. I feel her.
Senator Batters: I wanted to ask Ms. Lombard a question. The Native Women’s Association of Canada recommends clearly stating that Bill S-250 will not prevent Indigenous women who have already been subjected to forced sterilization from pursuing criminal charges against offenders under other existing sections of the Criminal Code, such as aggravated assault under section 268.
Do you think that clarification is necessary to be able to protect the rights of victims of forced sterilization that occurred before this bill may be adopted?
Ms. Lombard: Thank you for that question, Senator Batters. Does it need to be amended? Not necessarily. We also have to consider the offence, which is sexual in nature. Limitations don’t come up, though they are not retroactive. What would be the benefit? If the assault is sexual in nature, which, biologically speaking, it incontrovertibly is, there are no limitations, so though there is no specific provision dealing with it historically, those provisions can still be used.
I don’t see a technical reason to include a “for further certainty” provision within the existing bill, but I don’t suppose it would hurt. For example, if someone who had committed or was accused of having committed the offence in Bill S-250 prior to its coming into force — hopefully it will — “that shall not preclude,” et cetera.
I think that operates on its own. I don’t think it is necessary to have a “for further certainty” clause, but if further certainty is needed, there are options.
Senator Dalphond: Thank you very much, Ms. Rabbit. I’m sorry. I forgot your Blackfoot name — it is Eagle —
Ms. Rabbit: Eagle Woman.
Senator Dalphond: Thank you very much, Eagle Woman, for being with us today with your daughter and speaking on behalf of her grandmother. So we have a full line of mother to mother and to a pregnant woman who is soon going to be a mother. I appreciate that. Thank you.
I appreciate the attendance of Ms. Lombard, who has been very involved in one of the first class actions to be launched, I think, and it has had ripple effects ever since. Many provinces have similar class actions pending, so that will bring some compensation in terms of financial compensation, though maybe not an apology. Hopefully, it will bring more than compensation, such as ways to prevent repetition in the future, which is the goal that we are all trying to achieve through the class actions and this bill — because what has happened should not have happened and should not happen again. This is the critical part, and I certainly appreciate that.
I don’t know, Eagle Woman, if you can answer this: Do you see a change when you go to a health facility or are in contact with doctors, nurses and people who are providing health care services, or do you think it’s still the same old culture, racism and systemic racism?
Ms. Rabbit: Back home, yes, it’s still the same. A lot of our people are given prescription medication, which, of course, they are abusing. But are the doctors looking for ways to say, “No, you don’t need this medication,” or “Let’s try something else; maybe its trauma or maybe they need counselling”? Again, it’s almost like they are trying to wipe us out, because back home, we are dealing with overdoses daily. That’s no lie. Sometimes there are five funerals in a week, and even when planning my mom’s funeral, I had to wait or plan ahead because there were so many funerals.
So, no, it’s still the same. But they’re using the pill now — prescription drugs. So there are a lot of our people who are dying of overdoses and who are addicted to prescription drugs, which affects the family dynamics and so on. So it’s still the same, I feel.
I don’t know. With my daughter, I’m always there for her, and she calls me. If I can’t be with her in the clinic or with her doctor, she will call me, and I am always telling her to make sure and ask, and she does. So that’s just me ensuring that she’s being taken care of, and no one is influencing her or any way.
I hope that answered your question.
Senator Klyne: I want to echo the sentiments and words of my colleagues who went before me. I share those.
I want to ask a question or two of Alisa Lombard. Bill S-250 excludes section 45 of the Criminal Code as a defence for the new sterilization offence. Can you elaborate on the significance of this exclusion?
Ms. Lombard: To the best of my recollection, and I’m working from memory here — if we were in court, I might say, “May I have a moment?” — but to the best of my recollection, and I hope someone will correct me if I’m wrong, section 45 of the Criminal Code talks about certain immunities associated with those who are performing particular duties, such as surgeons, physicians and police officers. The purpose of that, as I understand it, is to give some traction to the fiduciary relationship between physician and patient in these kinds of precarious circumstances. So sterilization can only be carried out surgically. There is no other way for that to occur, other than chemical or these other types of situations. What we have heard are circumstances of surgeries.
Typically, and this goes to what was raised by Senator Batters and others earlier, the assault provisions aren’t used because of the existence of section 45.
What we have constantly heard is that it’s a civil matter. Though it certainly is, it’s also a very heinous human rights violation. If that is the case, where is the remedy? Where is the measured response to robbing a woman of her fertility?
The purpose of including section 45 was to say that we will not consider that in this circumstance because there is a very disproportionate number of women, Indigenous and other racialized women, who are experiencing unwanted sterilization. So we cannot use section 45 to come in and grant additional immunity to already powerful folks in a tremendous power imbalance in circumstances that are also very vulnerable, like childbirth. So that was really the purpose of that inclusion.
Senator Klyne: Can you explain if and how Bill S-250 addresses the current legal and ethical gaps in prosecuting cases of nonconsensual sterilization?
Ms. Lombard: I hesitate to use a very common analogy, which is we’re talking about a hot dog. There is a lot of meat in that hot dog as far as prosecution, et cetera is concerned, so understanding that process is critical.
I cannot quote the person who said this. I can’t remember who it was, but they say, “Laws without enforcement are just words. Enforcement without laws is just violence.”
If we think about what happens when words are put into a document like the Criminal Code — which, in 1974, was about this thick and is now quite a bit thicker — there are a whole host of things that need to happen. Investigations need to occur. Enforcement agencies, such as the police, have to take these things seriously, perhaps even take notice of them. They have to then investigate dutifully and professionally, as they are legally required to do. They then have to swear in information. The information has to be picked up by the Crown. The Crown has to consider the likelihood of conviction beyond a reasonable doubt, and then they get to exercise that rather obscure prosecutorial discretion.
That space, what lives between the inclusion of words in a book as law and their enforcement or efficiency, is tremendous. Systemic racism and sexism live in every component, from the words to the execution.
Do I think it will be effective in eradicating all forms? No. Will it be effective in contributing to the eradication of all forms? Absolutely.
Systemic racism and sexism require systemic responses. If you’re trying to address a nuanced issue that has a variety of layers, then you need to provide a layered response. Bill S-250 is one such layer. It’s one of the ingredients that are critical to preventing the practice.
Senator Pate: Thank you to all of you for being here. I join in apologizing on behalf of all Canadians, but it’s not sufficient. You deserve the apology that you are seeking from the government, decision makers and the doctors who performed the horrendous attack on your and your mom’s bodily integrity.
Condolences on the loss of your mom. It’s a huge loss to lose your mom and children.
I’d like to hear more about this. Because I have for years worked with people who have been victimized, your words resonated when you said you want to prevent this from happening to someone else and you want reparation. You want to know it’s not going to happen again as certainly as possible.
What are some of the other things that need to happen in addition to this bill to help move this along, not just for you but also for other people?
You and I have spoken very briefly as we walked. The reality is this is still happening, the racism and sexism within the medical system and society. Particularly for Indigenous women, it’s still a major problem. I’m not asking you to solve the issues, but are there some other things you can see that we could do right now that would be helpful?
Ms. Rabbit: A lot of things can be done, but I think amending Bill S-250 to include the sterilization procedures would deter the medical professionals, people who the Indigenous people are entrusting — they’re wanting to hear from the doctor. They’re concerned about themselves, but at the same time, there is that feeling of, “I don’t know. I’m not sure. I’m afraid.”
I did fail to mention that my niece was forced into being sterilized because one of her children was apprehended. So the system stepped in and forced her to be sterilized.
I didn’t know this until last year, when I was talking to my mom about what’s going on, receiving updates and whatnot. Then she just said, “Auntie, I was sterilized.” I said, “What? What happened?” She talked for an hour or two. She felt safe because we were already talking about it, and it just made sense to her to share.
That’s what’s happening to a lot of our people. They’re not saying anything unless they feel safe. So there has to be a safe place for our people to talk. A lot of people are silent, like my mom. She didn’t say anything until I did.
Going back to your question, this is the step that we need to take to ensure that there will be criminal charges for these medical professionals and even the child and family services who have authority over individuals or children — but not authority over what happens with our bodies.
For them to be criminally charged would deter this from happening again. It’s probably still happening today, as we speak. We don’t know. Basically, it’s aimed at Indigenous people — toward Indigenous women. It will affect the future of our people for generations.
My mother taught me about our history, where I come from and who our ancestors are. I come from a long line of leaders. Makiinima was a well-known leader who led our people. He is my great-great-grandfather. Sometimes, you become that leader in some way or in some capacity or another. I feel that; I feel his strength. I feel my mother’s strength, and her mother’s.
My mother took on her mother’s namesake, [Indigenous language spoken]. That was my grandmother’s Blackfoot name and then my mother’s name. Before she passed, which was about four months ago, she gifted me her name, but I haven’t used it yet. I have to speak with elders on how the transfer goes, so it’s known that I’m not just taking. My mom gifted me with her name not knowing that, a few months down the road, she would be gone.
That’s where I have to start speaking up. I’m speaking up for our Indigenous women. I’m speaking up for my children, for my generations to come, for my grandchildren.
The Chair: I’m sorry to cut you off. I don’t mean to be rude, but we have to move on.
Senator Busson: Again, I echo my colleagues’ sentiments. It’s not often, in a room like this, in these kinds of situations, that we can offer condolences and congratulations in the same voice.
You have brought four generations here to the table. It really strikes me that you brought your mother’s voice, your voice, your daughter’s voice and your unborn grandchild’s voice. I thank you for your bravery and courage in doing that. It resonates in this room, I can assure you.
My question is actually for Ms. Lombard, although it was brought up by some of the things that were said when you gave your heartfelt conversation and feelings to us.
I should have probably asked our honourable senator here when she was speaking.
Ms. Lombard, I believe a lot of the value of this legislation will be a deterrent value with respect to the actions of medical service people in the future when they’re dealing with these situations. I really do believe that’s an important part. But for it to be a deterrent, there has to be an awareness.
With respect to when this bill is — hopefully — passed with whatever amendments, I’m wondering if anybody has given any consideration — as was done with the #MeToo movement, when heinous crimes of a historical nature were brought forward because there is no statute of limitations on aggravated sexual assault, assault causing bodily harm and a number of other crimes I can think of — to taking some of these strong historical cases, such as the one Senator Boyer talked about where the person just said, “Let’s take the other fallopian tube,” to court and prosecuting them. I believe some would be successful, given the eyewitness testimony that might be available. Do you know if anybody has ever talked about taking these historical cases to court?
Ms. Lombard: I believe Senator Boyer said she would answer that question.
Senator Busson: I didn’t to put you on the spot, but I wanted to raise it as something that may be part of the deterrent value moving forward with it.
Ms. Lombard: Absolutely. Section 45 of the Criminal Code does operate to undermine those types of initiatives, however, where a physician can be excused in terms of the surgery that they visit upon a woman unwillingly because they are doing that. If we look at the verbiage or language of article 45 of the Criminal Code, it talks about “. . . for the benefit of that person . . .” What we have seen that has given rise to, if we think about and infuse the stories of the survivors as we have heard them and understand and believe them to exist in that way, is a lot of judgment. “It is for her benefit” is heard a lot.
This really sits in stark contrast to decisions like Malette v. Shulman, which talks about inalienable bodily autonomy, so the question doesn’t become: In the judgment of the surgeon, is it what is best for her? The ground under that proposition must shift to the inalienable bodily autonomy protected under section 7. So section 45 is a bit of a problem. That’s why Bill S-250 puts that aside and says we are dealing with a very specific, stubborn, historical and contemporary problem that requires an immediate, systemic response to prevent the harm and the suffering.
Senator Clement: Thank you to all three of you for being here. I fully endorse the words of our chair, Senator Jaffer, in terms of the apology and her gratitude for your testimony. I just want to comment and then I’ll end with a question for you, Nicole.
Your comments as a lawyer speaking of the justice system, your description and the use of your descriptive language, it’s really powerful. It’s the way that we need to speak to Canadians, so please keep doing that. The way that you describe Indigenous storytelling, it needs to continue to infuse our entire justice system if we’re to get anything right in this country, so thank you.
Ms. Rabbit, I’m sorry; Shelby, I’m sorry for your loss. You speak of your mother and say that she would speak to us with a gentle tone, with an open heart, but she would be forgiven for having rage in her heart, and you in yours. How do you manage that? Vulnerable populations are always the ones who are expected to be resilient. If I have to hear the word “resilience” one more time, I’m going to scream. How do you manage that? Do you have those feelings? Did your mother have those feelings?
Ms. Rabbit: Well, I’ll go back to one incident. It happened at work. I was yelled at. Of course, I didn’t say names, but I did go to my mom and explained what had happened. She knew it wasn’t right. She said, “You either have to go confront this person or go to HR, because you have rights.” She said, “If she ever yells at you again, go to her and tell her not to yell at you. You are a grandmother.” I told her I would. I was waiting for that. It didn’t happen. So that’s where I grabbed my strength and I said, “Okay, if I have to face this, I got this,” because I really take what my mother told me and shared with me to heart.
Senator Clement: We will too. Thank you, nia:wen.
Ms. Rabbit: It’s kindness. Do your job, do your best. If somebody doesn’t like it, you know in your heart what you’re doing is right.
The Chair: Just so you know, the bells are for us to go to the Senate. So that’s why there are bells. It’s not an urgent thing. Well, it’s urgent — but not that urgent.
I want to thank you, Ms. Lombard, for being here and for your leadership. I want to thank you also, Shelby Kaylee, for being here with your mom. You also had to show a lot of courage. Thank you for showing us how important it is to support people.
Ms. Eagle Woman, what you’ve said is always going to stay with us. When we consider this bill, we will always be thinking of what you said. We thank you, we respect you and we admire you. Please know that your words are not lost on this committee. Once again, thank you to all three of you for being here.
(The committee adjourned.)