THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, March 20, 2024
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:17 p.m. [ET] to consider Bill S-250, An Act to amend the Criminal Code (sterilization procedure).
Senator Mobina S. B. Jaffer (Chair) in the chair.
[Translation]
The Chair: Hello, honourable senators. Welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
I am Mobina Jaffer, senator from New Brunswick.
[English]
I invite my colleagues to introduce themselves.
Senator Batters: Denise Batters, senator from Saskatchewan, deputy chair of this committee.
Senator Klyne: Good afternoon. Marty Klyne, senator from Saskatchewan, Treaty 4 territory. Welcome.
Senator Prosper: Senator P. J. Prosper from Nova Scotia, Mi’kma’ki, territory of the Mi’kmaq.
Senator Simons: Senator Paula Simons, Alberta, Treaty 6 territory.
[Translation]
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Boyer: Yvonne Boyer, Ontario.
Senator Pate: Kim Pate, and I live here on the unceded, unsurrendered territory of the Algonquin Anishinaabe.
The Chair: Honourable senators, we are meeting to continue our study of Bill S-250, An Act to amend the Criminal Code (sterilization procedures).
I would now like to introduce the witnesses on our first panel. We welcome from Indigenous Services Canada, Dr. Tom Wong, Chief Medical Officer, Chief Science Officer and Director General, Office of Population and Public Health, First Nations and Inuit Health Branch; and Laura Mitchell, Director, Healthy Children, Youth and Families Division, First Nations and Inuit Health Branch. From the Department of Justice Canada, we welcome Matthew Taylor, General Counsel and Director, Criminal Law Policy Section; and Morna Boyle, Counsel, Criminal Law Policy Section. Mr. Taylor is not new to our committee.
Welcome, and thank you for joining us. I have to say to you that I’m really disappointed that none of you have opening remarks. It is very difficult if you have no opening remarks. All of us will go away with impressions as to why you don’t have opening remarks. I can say that many of us here are very disappointed.
But we will go to questions now, starting with the sponsor of the bill.
Senator Boyer: Welcome to all of you here. I appreciate you coming, and I look forward to talking to you about some of the aspects of this bill.
My first question is for Dr. Wong. I know that you are familiar with the issue of forced and coerced sterilization in Canada. We’ve seen you before in this committee and in the Human Rights Committee. I know that you’re also very familiar with racism and gender-based violence in the health care system. Can you speak to how you see the consent model in Bill S-250 impacting the interactions between doctors and their patients, especially Indigenous patients?
Tom Wong, Chief Medical Officer, Chief Science Officer and Director General, Office of Population and Public Health, First Nations and Inuit Health Branch, Indigenous Services Canada: Thank you very much, Senator Boyer. I want to acknowledge that I’m joining you from the unceded of the Algonquin Anishinaabe people today.
It is so important for all of us to recognize that there is a power imbalance between health providers, such as doctors, nurses and social workers, and patients, especially in the underserved population. We know there are many inequities experienced by Indigenous women in the country. It is absolutely essential that there be free, prior, and informed consent. With the proposed amendment to the bill, I hope that aspect would be duly considered.
In addition to that, it is so important to actually be able to support Indigenous women as they make choices. We want to make sure that choices are made when and where they want to make them and not be forced upon them during times of duress. Thank you.
Senator Boyer: Thank you. I have a secondary question that perhaps Ms. Mitchell would like to answer.
We know that accessing health care is often challenging for Indigenous people and there are many reasons for this, like a lack of access in remote communities, distrust of the system and racism in the system that affects quality of care.
Bill S-250 criminalizes the issue of forced and coerced sterilization and ideally becomes a deterrent that is never used or is not necessary to use. We also want to ensure there are no barriers to women accessing the reproductive health care that they choose, including tubal ligation. We want to make sure that they keep their agency.
After my external review of the Saskatoon Health Authority’s tubal ligation policy, they had the problematic reaction of limiting access to tubal ligation unless referred by a family doctor, which we know many Canadians, especially in remote communities, do not have.
Can you speak to how Indigenous Services Canada, or ISC, can respond to the explicit criminalization of forced and coerced sterilization to make sure there is not a chilling effect on reproductive health care for Indigenous women who often already have issues accessing health care?
Laura Mitchell, Director, Healthy Children, Youth and Families Division, First Nations and Inuit Health Branch, Indigenous Services Canada: I can certainly try. One of the major things that ISC does, largely, is the role of funding. We acknowledge that we are not the experts. One of the things that we have done — and hopefully will continue to do — is support Indigenous women’s organizations and other organizations that work closely with Indigenous folks, who are probably more trusted than government sources, to be able to work with them to understand their rights and what informed consent should look like.
It’s unfortunate that we put patients in the position that they have to know their rights. In an ideal world, that wouldn’t be the situation. But until we resolve these other issues, we need to equip Indigenous people, when interfacing with health systems, to understand their rights. That is a role ISC has played and needs to continue to play.
There’s been some really excellent work done by Les Femmes Michif Otipemisiwak, the Native Women’s Association of Canada and Pauktuutit Inuit Women of Canada, as well as the National Council of Indigenous Midwives, who were talking to me in the hallway about some of the work they’re doing to try to support patients to understand their rights when they’re interfacing. That’s a place to start.
Another important thing we’re doing is trying to bring those voices into government. We have a committee. You presented to that committee last year, I believe. It’s the Advisory Committee on Indigenous Women’s Wellbeing, which is represented by some Indigenous women’s organizations, some two-spirited serving organizations and an organization that represents youth. They were really trying to bring them together to have them tell us what they think our role could or should be. We’re obviously limited by our reach in that we’re federal and much of this activity happens in provincial systems. The question becomes: How do we become convenors and support Indigenous peoples who are the experts in their own health care to know their rights and to fully exercise them?
Senator Boyer: I have one more follow-up question for both of you. Do you support the bill? Do you see any amendments to it that would be helpful?
Ms. Mitchell: I’m not a lawyer, so I can’t speak to the legal language of the bill. I would say that I’ve heard from survivors and from people who have worked with survivors about how important criminalization is to them. I want to echo that. I’ve heard that directly from survivors. They or lawyers are probably better placed to say whether this bill creates legal risk. I certainly couldn’t. I feel your question was trying to hint at that. I don’t think I’m appropriately placed to answer that question, but survivors have said how important — you know that and everyone here knows that. I am just reinforcing that I have heard that from survivors as well.
Dr. Wong: I want to echo that comment. I have heard from survivors how important it is to have that, but I’m not a legal expert and can’t comment on that.
Senator Boyer: Thank you.
Matthew Taylor, General Counsel and Director, Department of Justice Canada: To your last question, about whether we support the bill and would we propose amendments, as you know, we’re not here to speak in support or against legislation that is before you, we’re here to support you in understanding it. I echo the comments that have already been made. I have followed your testimony and the evidence where individuals have acknowledged that the criminal law does address this conduct already, but that there is a value that is seen in going further, doing something differently, perhaps as a deterrent.
In terms of specific amendments — I’m sure there will be more discussion on this — as a starting point for areas of consideration for your committee, I might pick up on the question you posed earlier around consent. I would, if I have permission, to turn it to my colleague.
We understand the consent model to operate in a similar way that consent would operate in criminal law currently. It is similar in the sense that your bill doesn’t define consent. We would expect that courts would interpret that term in a consistent way, as in the context of assault or sexual assault, for example. It’s different in that it operates outside of the elements of the offence; it operates more as a defence. Whereas in assault law, you have to prove the lack of consent as an essential element; here your bill seems to treat it as if there is consent and these additional safeguards are in place, then a crime hasn’t been committed.
Subclause 4 of the bill identifies some kind of limiting factors where consent would not be obtained, and so the offence would be made out. Perhaps we can very quickly touch upon — and I’ll turn to my colleague here — some of those. For example, that consent wouldn’t be obtained if the person is under the age of 18. Ms. Boyle, do you want to speak to that a little bit in terms of like some of the scenarios where we envision that situation might come up in practice?
Morna Boyle, Counsel, Criminal Law Policy Section, Department of Justice Canada: I’m happy to speak to that. Again, I’m not a medical practitioner, so I can’t speak to specific situations in which that may arise, but I could say that some questions have arisen as to whether the approach in subclause 4 with regard to (a), (b), and (c), whether the person is under 18, whether the person is incapable of consenting for any reason, or whether the person has not initiated the voluntary request to undergo a sterilization procedure may possibly result in the increased criminalization of medical practitioners who are performing what would currently be considered to be a lawful medical procedure. An example could be a situation where the doctor raises the prospect of sterilization as a valid medical option for the patient, who then freely chooses to undergo the procedure.
The bill, according to our reading of it, may prevent that patient from having the lawful capacity to then consent to that procedure if it was not raised by them. This may have an impact on reproductive conversations between doctors and patients; we can’t say for sure.
Senator Batters: Thanks, all of you, for being here.
From your lack of opening statements, I assume it’s probably because the government does not want to have its officials saying anything about this bill that would imply that it supports it or does not support it. Would that be a fair assessment? Instead, you would rather prefer to be here to answer our questions and maybe try to glean something out of that from the answers to them.
Mr. Taylor: I can’t speak for the government. I can point to information that has been presented to this committee already, where former Minister of Justice had indicated an openness to setting this bill and working with the sponsor of this legislation. I think that is public information. More generally, as I said earlier, our role here is really to support you in understanding the bill and its implications. Parliament, ultimately, will decide whether it will support it.
Senator Batters: Yes, I have to agree with our chair when she said it does make our job more difficult, because rather than having a 5- or 10-minute portion where you have set areas that could be problematic or what you think is helpful — that sort of thing — we have to do a bit of detective work to try to read your minds, perhaps.
But I will just go on one of the parts that I’ve previously raised. The current sections of the Criminal Code, notably section 265 on assault, section 267 assault causing bodily harm, and section 268 dealing with aggravated assault — all of those could already be applied to cases of forced sterilization. When looking at Bill S-250, one thing is very clear: If there were charges brought under these potential new offences in Bill S-250 rather than those existing provisions that have decades of jurisprudence behind them, there could be more elements for a prosecutor to then need to prove those beyond a reasonable doubt for those new criminal offences. That could potentially make it more difficult to secure a conviction under this bill rather than under the sections of the Criminal Code currently in force.
When I asked this question to Senator Boyer at our last meeting, she responded by emphasizing the lack of jurisprudence — there has been a lack of cases of forced sterilization — and the importance of adding a new specific section to the Criminal Code to deter and encourage more thorough reflection before proceeding with these types of interventions.
Justice Canada lawyers, could you please share your opinions on the effectiveness of integrating this new provision, compared to those existing provisions? Do you think that adding these offences could genuinely improve this fight against forced sterilization, or do you think it might make prosecutions more complex?
Mr. Taylor: Thanks for the question. I’ll start and turn it to Ms. Boyle if she wishes to supplement.
I think you raise important points, Senator Batters. The courts are familiar with aggravated assault, which we believe would be the operative offence to respond to a coerced or forced sterilization situation. The concepts in assault law are well established. The two new offences here, particularly the first offence, introduce a number of additional elements. I think those elements try to reflect concepts that are captured in the meaning of consent, so they’re not entirely unfamiliar in that it has to be contemporaneous and fully informed — things of that nature.
But as we understand it, a prosecutor would have to demonstrate that the procedure occurred and that none of the additional measures that are articulated with respect to the first offence apply. So the person was over 18, and the safeguards didn’t apply. There are those additional elements.
Do you have anything to add from your perspective?
Ms. Boyle: Currently in criminal law, the prosecution bears the burden of proving the offence beyond a reasonable doubt but is not required to disprove any possible exceptions until the accused points to evidence that their actions fall within that exception. Currently, the law of aggravated assault requires the Crown to prove that the procedure took place, that there was no consent to that procedure.
Bill S-250 would require prosecutors to establish that the procedure took place, at which point, the defence would then need to point to evidence that the consent requirements were met, at which point the prosecutor would then be required to disprove that the extra consent requirements were met.
Senator Prosper: Thank you to the witnesses for coming and providing your testimony.
I’m trying to grapple with some of the dialogue, which I certainly appreciate, from Senators Boyer and Batters with respect to the considerations involving consent. I’m just trying to wrap my mind around your latest provision with respect to standard practices with respect to assault and the prosecution of assault and how this bill may involve a reverse-onus provision. I’m not sure if that’s correct.
Once the procedure happens, the onus shifts to the defence to say, “Well, these additional features regarding consent were not met”; is that what I’m hearing? So it would be incumbent upon the defence to prove, in accordance with this bill, these additional features?
Ms. Boyle: Thank you for that question.
First, I would start by saying it doesn’t change the burden. The Crown still bears the burden of proving the offence beyond a reasonable doubt. That burden wouldn’t change.
The defence would have to point to evidence that their actions fell within the exceptions. Once they point to that evidence, the Crown would still bear the burden to prove beyond a reasonable doubt that their actions did not fall within that exception.
So the defence does have to point to evidence that their actions fell within the exception, but the burden would still be the Crown’s to bear.
Mr. Taylor: The defence doesn’t bear any burden in a criminal trial. That is a fundamental principle, generally speaking, in criminal law. The Crown’s obligation is to establish the essential elements beyond a reasonable doubt and disprove any sort of defence or exception beyond a reasonable doubt.
An accused in this circumstance would say, “Well look, I complied with all of these requirements. The person was over 18, and I didn’t initiate the procedure.” It would then be up to the prosecutor to demonstrate that they didn’t comply with those requirements. Now, a prosecutor might do that all out of the gate. This is kind of a theoretical distinction about when in a trial a prosecutor has to go forward with that evidence.
To Senator Batters’ earlier question, it’s about having to go through all of these additional elements to establish whether an offence was committed.
Senator Prosper: I have a follow-up from a previous question as well. You mentioned, Mr. Taylor, that there were matters of concern with respect to the bill. What comes to mind is the over 18 requirement and a medical practitioner initiating the dialogue, which could result in them being found guilty under this provision. Can you expand upon that a bit?
Mr. Taylor: I can start and then Ms. Boyle can supplement my response. We’re not medical experts, as you know, but in looking at the bill we were trying to identify scenarios where the result would be that a medical practitioner could be convicted in circumstances where it would be unintentional. Maybe our colleagues can speak to this also. For example, a scenario where a 17-year-old gives birth and, in the course of giving birth, starts to hemorrhage. To save that person’s life, the medical practitioner says, “We need to operate.” You can speak to this better than I can but as we understand the provisions, they would not protect that medical practitioner from criminal liability, first, because the person is 17; and, second, because the medical practitioner initiated the conversation. We worry that might be an unintended consequence with the way the consent provision is drafted.
We suspect that the goal here is really about making sure that consent is informed, valid and free from coercion and duress. I can see that in the way the bill is drafted, but we worry that these would be the consequences.
Ms. Boyle: Currently, section 45 of the Criminal Code would allow a medical practitioner in that situation to make an emergency decision to save a patient’s life, which may result in sterilization. However, the proposed reforms in the bill would remove the application of section 45 from sterilization procedures.
An argument could be made that such an emergency procedure — for example, if someone is in an acute hemorrhaging situation — would fall outside the scope of the definition of “sterilization procedure” in this bill. That would be a matter for the courts to interpret.
I believe the definition of “sterilization procedure” in the bill is “for the primary purpose of permanently preventing conception.” An argument could theoretically be made that an emergency procedure is not for the primary purpose of permanently preventing conception. However, that would be something for the courts to interpret.
Senator Prosper: Thank you.
[Translation]
Senator Dalphond: Thank you to the witnesses for being with us today. It is always extremely helpful.
[English]
My question is about the construction of proposed subsection 268.1(1). I understand that subclause (2), the description of the offence, excludes section 45, as you said. That means it excludes the defences that are possible under section 45. Subclause (2) is very clear. It’s purely factual. You have to perform a certain type of procedure, a sterilization procedure, and you’re guilty if you perform it unless an exception applies. The principle is that you should not perform it.
The exception is subclause (3), which says that it does not apply if you have obtained the consent of the person and have complied with the requirements set out in proposed subclauses (5) and (6). Do you read that as meaning the onus is on the Crown to show that the exceptions do not apply, or is it on the accused once the first paragraph has been shown as a fact and then the table is turned? Does it say, “show a defence”?
It looks like a defence and maybe an element of the infraction. I’m not sure where it is.
Mr. Taylor: I think you raise good comments, Senator Dalphond, as always. We read it as an exculpatory claim, so more like a defence. This is what we were trying to describe earlier. In that scenario, the onus would be on the accused to point to some evidence. That is, to say, “I complied with these rules.” The Crown would then have to disprove it.
As I was saying, it may be the Crown’s case to meet when they’re arguing that the procedure occurred and, “I’m going to explain to you why none of these exceptions or safeguards apply.” They may do that at the beginning, for expediency, but we read it as an exculpatory claim.
Senator Dalphond: An exculpatory clause, and therefore the burden rests on the accused. Do you think that could open a challenge under the Charter? We’re not dealing with a statutory offence here, we’re dealing with a criminal law offence. Section 45 deals with a serious criminal law offence with a somewhat general defence — as a matter of fact, a common law defence — but here we’re creating an offence where the burden has shifted and the defences are limited, compared to section 45. Do you see that as a problem?
I’m not asking you to opine on the Charter issue now, from the table. It’s a tough issue, but is it a concern that was raised in your discussions?
Mr. Taylor: Provided that it operates like defences do in criminal law, it doesn’t impose a persuasive burden on the accused; it’s an evidential burden. I think the courts would be quite comfortable with that as being consistent with criminal law, and therefore in compliance with how the Charter operates in this space.
There are other interesting questions more generally around the kinds of scenarios that may or may not be captured by the offence and it’s interrelationships with the safeguards and the exception. That is, situations where a medical practitioner knew that there was free and informed consent but didn’t strictly comply with the safeguards. Whether that raises Charter considerations, we’re not in a position to say strongly.
Senator Dalphond: We know that subclause (3) looks like an exculpatory clause, so what about the safeguards? Is that something that the Crown must prove or is a reverse onus again that belongs to the accused to show that the person took the appropriate and reasonable measures; he was satisfied?
Ms. Boyle: The onus wouldn’t be on the defence to prove beyond a reasonable doubt that they met all of the safeguards. They would have to point to evidence, however. The Crown would then bear the burden of establishing beyond a reasonable doubt that those safeguards were not adhered to.
Senator Dalphond: Again, it’s a bit exculpatory to an extent by the accused. He has to show, at least on the balance of probabilities, something that the Crown would have to reverse beyond any reasonable doubt.
My third question is about the second offence.
The Chair: May I put you on second round?
Senator Dalphond: Yes, please.
Senator Simons: This may follow nicely because I wanted to know about subclause (7), where it talks about coercion. Means of deception is clear, use of intimidation, threat or force. Legally, however, the bill doesn’t define coercion.
What do you take to be encompassed by coercion?
Mr. Taylor: Thank you for the question. Coercion is used in the criminal law in other places. The way the provision is drafted, it suggests that deception, the use of intimidation, threat and force are subsumed within the concept of coercion. That’s consistent with what the courts say coercion is.
There’s a Supreme Court decision, the Big M Drug Mart Ltd. case. It’s a Charter case, but it talks about coercion in that context. That decision said that coercion encompasses obvious forms of compulsion to cause somebody to do something. But it also includes more indirect, subtle forms of control that are directed at someone to influence their decision-making and influence their choice. This concept encompasses the obvious forms of threats and violence, as well as psychological pressure to influence decision-making.
Senator Simons: I assume that’s the intent of the legislation. I don’t think there’s allegations. It’s not Alberta in 1970, after all. I don’t think people are being forced as much as they’re being nagged, pressured, up-sold, what have you. It concerns me a bit that this says “anyone” who does that, not just the physician who performs the procedure. Presumably, it could be a spouse, a mother-in-law, a social worker — a counsellor could potentially, if they counsel someone to have sterilization, could be captured by this. Would that be a fair reading of the clause?
Mr. Taylor: I think it will ultimately depend on how the court interprets the language of “causes” and what “causes” means in this context. Does it mean the person who performs the procedure, or does it capture those kinds of scenarios? I don’t know if I can say definitively. I’ll turn to Ms. Boyle, if she has anything to add. But it’s a serious offence, a significant penalty, and that will inform the way the courts interpret it as well.
Senator Simons: I have one more question, if I may. Would you read paragraph 281(1)(b) to mean that this would also include men who have vasectomies?
Ms. Boyle: Thank you for that question. I think any other act performed on a person for the primary purpose of permanently preventing conception could include men.
Senator Simons: What really concerns me, as I say — I made a bleak joke about eugenics in Alberta. I’m from Alberta, I grew up with the legacy of the eugenics act all around me. It was something we studied in school and something I wrote about as a journalist. But I’m concerned about the default, as Senator Dalphond pointed out, of saying all sterilization is illegal, except, except, except. Because people in this country have fought for a century to have access to contraception.
I’m particularly worried about trans Canadians in this time of backlash — especially for younger trans people — that this bill could have the effect of making it nearly impossible for someone who is trans, especially someone who might be under 18, to get the gender confirmation care that they seek.
How concerned are you that physicians who practise in these areas may be hesitant to offer these services, even though they are acting with goodwill and medical responsibility, for fear of being criminally liable?
Ms. Boyle: Thank you for that question. I do think it is a concern. I think it is a concern that might be best addressed by — I believe there are witnesses from the obstetrician community coming. It is something that is worth considering.
Senator Simons: Thank you very much.
Senator Pate: Thank you to our witnesses.
Mr. Taylor, you mentioned that you’ve been watching or following, so you’re aware of some of the issues that have been raised around the concern about the prospect of criminalization when most of the people who would be looked to would be rather privileged and likely be able to lawyer up and expert up. At the crux of this issue, in my humble opinion, is racism, misogyny and class bias. We’ve known about it for many years, thanks to the work of Senator Boyer and others, that this particular issue is at the forefront. We all lived through knowing that in the same hospital where Joyce Echaquan was treated in a completely derogatory, racist way, there were other white and more privileged patients who were not treated the same way.
I’m interested in knowing from each of your departments what specific role do you see for your department in trying to address this. You’ve mentioned there’s education, there’s funding and you’ve mentioned there are some funding sources. What particular actions have you taken and how are you measuring whether you’re achieving the goals of changing the behaviour of folks who would otherwise be implicated not just in forced sterilization, but in the misogynist, racist, class bias treatment of people in the medical system? How are you evaluating those goals, and what are the results? What would you recommend to this committee in terms of ways to further address these issues?
Ms. Mitchell: The goal of legislation is admirable, but it’s still punitive. We need to talk about prevention. One of the things our department started funding in 2017 with a more significant investment in 2021 is Indigenous midwifery. I’m so pleased that you’re hearing from the National Council of Indigenous Midwives later today who can speak to this far better than I can. Informed choice is an essential tenet of midwifery care, and it reduces the risk of even having a conversation around sterilization because it’s vaginal delivery. These sterilizations largely occur through Caesareans and those sorts of things.
That’s a place I can point to and say we’re making good progress, but it takes a long time to train up an Indigenous midwifery workforce. We have some training initiatives underway, and NCIM has been an invaluable partner in that. They are doing training and development of midwives. There is some very interesting work happening in the Innu Nation and basically across the country. But it’s slow, and that’s one of the major challenges.
Another thing is that there have been some investments around anti-Indigenous racism, putting patient navigators and patient advocates in place in hospitals to be a trusted source for navigating the health system or a person to turn to if you’re unhappy with the treatment you’ve received within the health care system.
With respect to your questions around how we know whether we’re being effective, it’s still early days. One of the things we worked closely on with the National Council of Indigenous Midwives was to develop a reporting tool for communities to discuss and report back on what they’re seeing play out in their Indigenous midwifery investments and what that work looks like. We’re coming into the first year of using that, this fiscal year coming up, so it’s too early to give you — I know that’s an unsatisfactory industry answer, but it’s too early to be able to show you concrete things. In the stories that we’re hearing — there was a birth in Sturgeon Lake on the land, and it was the first time in 50 or 60 years that had happened. It’s those kinds of stories that are really important and help us carry on in the work, but the data you’re looking for is just not there yet, and I apologize for that.
Mr. Taylor: Thank you for the question, Senator Pate. I think the fact that the bill is before parliament is extremely important, and the study that you’ve done is extremely important in raising awareness on this issue. It causes all of us to have a conversation, and that is beneficial.
Using the criminal law — and you all know this very well — is the back-end response to issues of concern. That is not to say it is inappropriate. It’s appropriate. It acts as a deterrent and as a signal of parliament’s condemnation of behaviour that should be condemned. There’s value in that.
Insofar as how we, in our space in criminal justice, inform and address meaningful change, if we look at it through the lens of criminal justice, the arguable success would be no charges because no misconduct is happening, and if there is misconduct that the criminal justice system is effectively responding to it. I know you’ve heard evidence to suggest that is not the case. In our role, we can work with our provincial partners who implement the criminal law to share the information that we have and raise awareness. We have had some opportunities already to raise this bill with our PT partners through existing processes that we have. We’ll continue to do that, particularly if the bill passes. We can look at awareness-raising efforts around new laws. We do that regularly. You know about our funding envelopes, in terms of supporting victims of crime. We do that as well. I’m not aware of any specific funding being allocated to this particular issue, but we do have envelopes. I think it helps a bit but probably not in the comprehensive way you would like.
Senator Pate: Have there been discussions between professional standards bodies and lawyers at the Department of Justice? Are those some of the discussions in terms of whether you could look at strict liability offences that could involve licensing as well?
Mr. Taylor: Our group, in particular, has not had conversations with governing or medical bodies. Perhaps our colleagues can speak to that more. Generally, our focus is on engaging with police officers and prosecutors on building awareness and supporting implementation of legislation. Certainly, though, that suggestion is an interesting one.
Ms. Mitchell: In January 2020, we funded the National Collaborating Centre for Aboriginal Health to host a forum on informed choice and consent. Some regulatory bodies did participate in that. Then the pandemic happened, which has certainly delayed our ability to do that engagement. It’s something we definitely want to do, but we have to do that in concert with provincial and territorial governments and with advocacy organizations like the National Council of Indigenous Midwives.
But we started having those conversations, just not in a terribly robust way, I would say.
Dr. Wong: I would like to add a comment. Perhaps this committee may wish to invite as witnesses some of the regulatory bodies to appear before them. Thanks.
Senator Clement: Thank you to all the witnesses. I agree with the chair that I would have wanted opening statements. I think they’re helpful. I really pay attention to those, and they’re helpful, but I appreciate that you have answered the questions.
I want to follow on from what Senator Pate was asking. We have aggravated assault provisions — they exist — and yet we have evidence that forced sterilization continues to happen, so there’s a disconnection. It’s not working, and that’s why we’re here.
I just want to understand more about what Indigenous Services Canada is doing around dealing with anti-racism. Because you’re saying it’s not robust yet, or it’s not enough yet. “We’re getting there; we don’t have the data.” Yet, when we have the evidence from Indigenous women, as you know, it’s urgent; it’s beyond urgent.
That’s the reason for this bill. I’d just like to know if any of you have anything to say to counter or to explain away why this exists, because in your statements, you’re basically confirming why this bill has to move forward.
Ms. Mitchell: I just want to clarify something. The conversations with regulatory bodies have not been robust, but there’s been a lot of activity in the department and with Health Canada that I can’t speak to about trying to address anti-Indigenous racism in health care.
I want to be clear: These things take a really long time to address. You’re talking about changing hearts and minds, and structures. We are only now having conversations about structural racism in public spaces. Those weren’t conversations happening 10 or 15 years ago. In fact, most people didn’t have that language.
Senator Clement: I was there too and heard them.
Ms. Mitchell: That’s massive progress. To me, it’s never enough. I want Indigenous patients to feel safe and able to have the conversations they want to have in a way that makes sense to them. We’re not there, and I’m not going to tell you we are.
But I think the continued investment in activities like Indigenous midwifery, patient navigators and advocates who can help make systems safer are critical to help move this work. I’m also trying to be realistic about the timeline. We’re dealing with 300 or 400 years of colonization. This won’t be solved in three or four years. Joyce Echaquan’s death was a catalyst for change, and I’m so grateful that she filmed it, but we need more time to make those kinds of changes.
This conversation, while amazing — I’m also from Alberta — it isn’t the conversation that the average Canadian is having. It’s also trying to get to those folks too and bring them into these conversations while letting Indigenous people lead and shape the conversations and move at their pace too. For women who experienced this, they don’t even know it was done in a way that was without consent. It’s only when they have these conversations with these organizations that they have aha moments and realize that it wasn’t appropriate. They then wonder what to do about it.
All of these things are happening at the same time.
I sense your frustration. I apologize that I’ve undersold what we’re doing. I don’t want to say we’re doing a better job than we are when we’re up against such a huge issue.
Senator Clement: Does anyone else have a comment?
Mr. Taylor: I do not, other than to acknowledge the evidence you have is unacceptable. The criminal law should protect everybody, and the criminal law should be available to everybody. To the extent that the criminal law isn’t available, that is an issue that needs to be addressed if it’s not being applied in places that it should. Those are ongoing challenges around systemic racism in the criminal justice system.
Senator Pate talked about disproportionate application or results depending on who you are. Those are all absolutely critical issues that need to be addressed.
Senator Clement: Do your departments work together on these issues — Justice and ISC?
Dr. Wong: Justice and ISC work on many aspects related to racism, discrimination and other matters. One of the things we are most concerned about is the tolerance for racism and discrimination to actually happen. From our standpoint, it’s more than just education. There should be zero tolerance in any kind of encounter, whether it’s a legal, social or health encounter. The onus is not on the individual seeking care; the onus is on the system, on the health care providers.
Senator Clement: Thank you.
Senator Klyne: Thank you for your comments so far. Dr. Wong, I appreciate your last comment there.
It’s hard to imagine that coerced sterilization takes place when the physician has an obligation to act in the patient’s best interest — to act with good faith, loyalty and cannot allow their personal interests to conflict with their professional duty. That’s not to mention that an assistant or assistants may be standing idly by while something is about to happen.
My question is for Ms. Boyle. How will amendments to the Criminal Code through Bill S-250 pan out in practice for Crown prosecutors when they bring forth charges against alleged violators? Do you see any practical benefits or difficulties? Should some of the assistants who stand by idly be implicated in a charge?
Ms. Boyle: Thank you for that question. The current laws, as they exist, around party liability — so anybody who assists, anybody who aids, including a nurse or a doctor performing such a sterilization procedure, knowing that the consent of the patient has not been obtained — would currently be criminally liable under the aggravated assault provisions.
Regarding the proposed changes that would move forward through Bill S-250 in terms of party liability, party liability would also apply in the proposed reforms. How party liability would play out in terms of the proposed reforms is not clear, necessarily. Would the nurse need to be aware of the lack of consent, for example, or would any person assisting only need to be present in assisting with the sterilization procedure without having gone through the safeguard and the consent requirements provided for in the bill? That is not clear on the face of the bill at this time.
Senator Klyne: Would you propose an amendment there?
Ms. Boyle: I’m not here to propose any amendments.
Senator Klyne: Very good. I understand.
Any other comments on that question? Okay.
In terms of your last comment, Dr. Wong, what can be put in place to practise and enforce that?
Dr. Wong: I see a number of opportunities for provinces and territories, together with the regulatory bodies and certification bodies, to make sure that there are consequences for any types of discrimination against any patients walking through any health care facilities. Canada has done a lot, but much more needs to be done. And this we actually witnessed with Joyce Echaquan’s very disturbing situation.
In order to get that done, it’s not just one single body. It has to be a group effort, including Accreditation Canada, including CMA, including all the provincial and territorial regulatory bodies as well as patient advocacy groups.
The Chair: I have a question for you, Ms. Mitchell. How is informed consent transferred to the medical profession? With ethnic women, with Indigenous women, often if they don’t speak the same language. What are the criteria? How are they supposed to set it out that they got informed consent?
Ms. Mitchell: I don’t know that I can answer that question as I’m not a practitioner, so I apologize for that. I do think, though, that you’re raising some really important things that we have heard. I can only speak to Indigenous women. I have not interfaced with women of colour. There is a sense of fear and a power imbalance in those conversations that the system hasn’t fully accounted for, because there is sort of an assumption that the average patient is often White, cis, heterosexual. Informed consent doesn’t always account for all the different ways people can present.
The Chair: Do you think there should be a question on informed consent and what should it look like?
Dr. Wong: Absolutely. Informed consent needs to incorporate the language and the culture. It’s inadequate to actually provide informed consent just in English and French, for example, because that really raises the question whether the patient completely understands the benefit and the potential side effects of a procedure and other potential options that may be available. Thanks.
The Chair: Senators, I want to read to you that the RCMP has declined to appear in front of us. One of the sentences is that:
Allegations of forced sterilization are relatively rare in Canada’s overall criminal landscape. In 2019, when they appeared in front of the Standing Committee of Health was informed that no allegation of forced sterilization was found to have been reported to the RCMP.
Witnesses, there are so many other questions we could ask, but we’ve run out of time. We thank you very much for being here. We’ve learned a lot, but you can see we are frustrated. The time is not enough, and there are not enough answers. You are also working on it to get answers, so we are all working on the same issue. Thank you very much for being here.
For our second panel, we are pleased to welcome The Society of Obstetricians and Gynaecologists of Canada, Dr. Diane Francœur, Chief Executive Officer; and Dr. Jocelynn Cook, Chief Scientific Officer. Dr. Jocelynn Cook and I worked together for a long time, so welcome.
The First Nations Health Authority, Dr. Unjali Malhotra, Medical Officer, Women’s Health, Office of the Chief Medical Officer, by video conference; and the National Council of Indigenous Midwives, Executive Director, Ellen Blais; and Claire Dion Fletcher, Vice-President, Canadian Association of Midwives and Core Leadership Member. We will start with you, Dr. Francœur.
[Translation]
Dr. Diane Francœur, Chief Executive Officers, Society of Obstetricians and Gynaecologists of Canada: Hello, Madam Chair, members of committee. I am Dr. Diane Francœur, Chief Executive Officer of the Society of Obstetricians and Gynaecologists of Canada (SOGC). With me today is Jocelynn Cook, Chief Scientific Officer.
Thank you for the invitation to appear before the committee. We hope to provide food for thought, since we consider it essential that all women, regardless of education level, socioeconomic status or ethnic origin, have autonomy in making the irreversible decision to be sterilized.
The SOGC issued an opinion in 2019 regarding non-coercive contraceptive care with very clear recommendations for obstetricians and gynecologists. That opinion was necessary following the systemic racism demonstrated in the way Joyce Echaquan was treated and in the truth and reconciliation process. Fortunately, those discussions gave women the courage to speak out against those doctors who decided, with impunity, to sterilize women without their consent. Those reprehensible acts occurred and we now all bear the burden of them. We teach those cases to medical students now so they can recognize the impact of the trauma those women experienced.
In 1986, the Supreme Court of Canada ruled that only someone who is able to give their consent may agree to permanent contraception. We have to wonder why this is still happening.
But is criminalization the only option?
I would like to share our concerns, because we think women could lose out under the principle of “first, do no harm”. We have all passively witnessed the loss of women’s rights in some U.S. states where access to reproductive rights has been criminalized. It is worrisome.
The field of obstetrics and gynecology deals with life and death and emergencies, which means that consent is not always obtained in a respectful and thoughtful manner. The influx of newcomers in recent years has sometimes forced us to resort to a child, an application or a few gestures in order to go ahead with urgent surgery if no interpreter is available, since an infant’s brain starts to show signs of distress after 12 minutes without oxygen.
Of course no one would perform a sterilization in that situation, but what if it is an ectopic pregnancy, if the woman is bleeding, or if her life is in danger? The best practice would be to remove the fallopian tube, but what if there is no interpreter, if we can’t wait for that person to arrive or if there is no trusted person assisting the woman?
Would potential criminalization make the decision for us? Unfortunately, that is what we are seeing in the United States right now, where women have once again started dying because of a ruptured ectopic pregnancy because obstetricians and gynecologists are afraid of committing a crime. This is also the case for a young woman who haemorrhages postpartum.
Did you know that women are still dying from haemorrhage in Canada? That is one of the main causes of death in childbirth. After performing all the procedures and giving all the medicines, the only treatment is to remove the uterus. That surgery results in sterilization, unfortunately. A woman who is between life and death cannot giver her consent. So the gynecologist has to make that decision. We are afraid that potential criminalization could make us waste too much time, that those delays could endanger women’s lives and that it would be too late to save them.
We have another concern: How is consent obtained when children or young women are given chemotherapy or radiation that will result in medical sterilization years later, even though there was no alternative treatment to fight the cancer?
What will happen to all the women who have chosen a long-term contraception method, which can given them peace of mind for seven years, if they return to a region where no one can remove those IUDs or implants? Could the person who implanted them in good faith seven years earlier be subject to criminal proceedings?
Further, a number of women make the informed choice to be sterilized during a Caesarean and unfortunately elective surgery is becoming increasingly less available. In Ontario, there is a minimum three-year wait for sterilization surgery. Oncologists very strongly recommend the preventative removal of the fallopian tubes where there is a family history of ovarian cancer. If criminalization means that the fallopian tubes cannot be removed during an emergency Caesarean, those women who are at risk for cancer will be worse off.
For all these reasons, the SOGC very respectfully recommends that you reconsider the issues to ensure that this bill will not in any way criminalize procedures that are performed to save women’s lives. We are very worried about criminalization taking over the reproductive health of women. We think the Supreme Court’s recommendations from 1986 which are applied in all cases where the person cannot give consent should be more strictly applied by medical colleges, which have the power to revoke licenses and to ensure that their objectives are met.
The Chair: Thank you.
[English]
We’re going to hear from Ellen Blais because she has to catch a flight right away, if it’s okay. Then we will go to Dr. Malhotra. If it’s okay with Ms. Blais, we will have the sponsor ask you a question and then you can leave.
Ellen Blais, Executive Director, National Council of Indigenous Midwives: Thank you. My name is Ellen Blais. I am an Haudenosaunee midwife from Oneida Nation of the Thames. I am Executive Director of the National Council of Indigenous Midwives, or NCIM, and a past co-chair, and I bring expertise as an Indigenous midwife on the front lines of protection for child welfare. With apologies to this committee, I will be leaving at some point during the proceedings. Thank you very much for understanding.
Claire Dion Fletcher, Vice-President, Canadian Association of Midwives and Core Leadership Member, National Council of Indigenous Midwives: I am Claire Dion Fletcher. I’m Vice-President of the Canadian Association of Midwives, and core leader and past co-chair of NCIM, and a Lenape, Potawatomi and mixed settler registered midwife and midwifery educator.
Ms. Blais: The National Council of Indigenous Midwives exists to promote excellence in reproductive health care for Inuit, First Nations and Métis women. We advocate for the restoration of midwifery education, the provision of midwifery services and choice of birthplace for all Indigenous communities, consistent with the United Nations Declaration on the Rights of Indigenous Peoples.
We are deeply concerned that today we are discussing changes to the Criminal Code in terms of Indigenous women’s right to bodily autonomy and to be respected. We call for the immediate end to forced, coerced and involuntary sterilization. It is an act of obstetric violence and genocide. We echo and follow the lead of the Survivor’s Circle for Reproductive Justice in our recommendations, and we support Bill S-250.
Indigenous midwives are at the front line of addressing forced and coerced sterilization. We provide excellent sexual and reproductive health care. We are advocates for our patients and their families against systemic racism. We are prevention — by applying the principles of free, prior, and informed consent; continuity of care; culturally rooted care; and, patient advocacy.
Ms. Dion Fletcher: The National Council of Indigenous Midwives is a co-chair at the Advisory Committee on Indigenous Women’s Wellbeing, which was formed in response to Senator Boyer’s external review in 2017-18 on forced sterilization. This issue sits at the intersections of systemic racism, ongoing colonialism, sexism, ableism, transphobia, homophobia and genocide.
As health care providers, we know that prevention demands a complex response. The National Council of Indigenous Midwives, members of the Advisory Committee on Indigenous Women’s Wellbeing and national Indigenous health organizations are working to address the root causes of forced sterilization. We are building awareness of the sexual and reproductive rights of Indigenous peoples. We are encouraging non-Indigenous health professionals to provide culturally safe care, which includes a commitment to free, prior and informed consent under UNDRIP, and we are working to grow the number of Indigenous-led health care providers, particularly midwives. However, this is long-term work.
From our experience, voluntary anti-racism initiatives and strong non-Indigenous allies cannot end forced sterilization alone. We hope that the implementation of Bill S-250 will encourage health care provider associations, regulatory bodies and institutions to strengthen their policies and anti-oppressive trainings to ensure meaningful consent procedures.
The National Council of Indigenous Midwives commits to moving this forward within the midwifery community. The responsibility should not be left on Indigenous life givers to know their rights and advocate for themselves when they’re seeking health care.
Ms. Blais: We hope that Bill S-250 moves through the legislative process thoughtfully and quickly. It has the potential to strengthen the work happening across Canada by providing a legal obligation for consent and will criminalize the act of forced sterilization that is a heinous violation of Indigenous and human right.
As Indigenous midwives whose model of care is based on cultural safety, self-determination and informed choice, we recommend the implementation of Bill S-250; however, we believe that this change to the Criminal Code is not enough.
We need Indigenous-led policies and tools, which prevent forced and coerced sterilization from ever happening. These policies and tools are needed to ensure that consent is not coerced, that decisions are made with all the necessary information and time, and that individuals who are seeking voluntary sterilization are not prevented from accessing it.
In closing, we are satisfied that this drafted legislation is being brought forward. Indigenous peoples are entitled to dignity, respect and autonomy in all aspects of health care, which includes the right to choose whether or not to have children. We lift up and honour the voices of those who have been courageous enough to come forward and shine a light on another dark chapter of our shared history. Thank you.
Senator Boyer: Thank you all for being here and thank you for your presentations. I have a question for either Ms. Blais or Ms. Dion Fletcher concerning your practice and the communities you serve. How do you think Bill S-250 will impact on your practice and the communities that you serve?
Ms. Dion Fletcher: I think it’s an important recognition of Indigenous people’s rights. We hear from the communities that we work with, particularly following the lead of the survivor’s circle, that this is both desired and requested. I think it speaks to the importance of informed consent and choice around sterilization and of protecting people’s right to decide when and if they want to have children.
Senator Boyer: Thank you.
Ms. Blais: I was at a meeting yesterday and I wanted to bring it to the attention of the committee. This is something that is happening currently. This is not something that ended in 1970 or in 1980. I was at a meeting yesterday discussing that I was coming to this committee. Someone there said that later in life they had gone to a doctor for a procedure and their chart indicated that they had had a tubal ligation. Yet they had no awareness of it. This is something that is very much happening today. I wanted to make that comment, namely, that a deterrent like this is at least a starting place, but there needs to be a lot more for our communities.
The Chair: Thank you, Ms. Blais. We’ll now hear from Dr. Unjali Malhotra by video. She’s the medical officer of women’s health.
Dr. Unjali Malhotra, Medical Officer, Women’s Health, Office of the Chief Medical Officer, First Nations Health Authority: Good afternoon. Thank you for having me. I’m calling in from Syilx territories as an uninvited occupier. I’m an adopted member of the TAKaya – Wolf Clanas part of the First Nations Health Authority family.
I’m humbly coming to you today as a reproductive health physician who has practised and trained throughout Canada for the last 20 years. I grew up in Prince Albert, Saskatchewan, daughter of Dr. Lalita Malhotra and Dr. Tilak Malhotra who served our Indigenous community of northern Saskatchewan for nearly 50 years.
My journey that brings me here today includes experience in working in my parents’ clinics, growing up in a predominantly Indigenous community side by side with many girls who at times had little voice or privilege. As a South Asian woman, I know how many east Indian women have suffered at the hands of colonization, misogyny and coercive actions made under the guise of population control, our best practice and a lack of rights of their own — our own — bodies. I personally interact with the health care system as both a provider and a patient.
I want to focus on the importance of consent of non-emergent care today. As documented in previous hearings, survivors of forced and coerced sterilization described the experiences and truths in which their sterilizations lacked free, prior and informed consent. The work we’ve done at the First Nations Health Authority, or FNHA, has been in response to this because consent is a basic human right. The First Nations Health Authority looks forward to seeing a health care system that upholds the inherent rights of First Nations people.
We led the creation of a contraception consent guide and a consent manual for health care providers to support health care providers in their role to offer evidence-based information relevant to decision making, to amplify patient-led decisions, to advocate for patients’ rights to self-determination and to offer expert knowledge. This is to ensure that patients can lead the decision-making process and make free, prior and informed decisions about their medical care, and make certain the final decision making is led by the recipient of care, while knowing consent can only be provided in an environment free of racism and discrimination.
Janelle Tom of Sḵwx̱wu7mesh Úxwumixw and Syilx First Nation, and an FNHA living marker, speaks to this. She says that:
Indigenous-specific racism is widespread within the health care system and has extreme impacts on my people. Unfortunately most of us know someone who is affected by coercion and sterilization; this is not an issue of the past, it continues to happen today. I want all health care providers to uphold First Nations people’s rights, including their right to autonomy, self-determination and informed decision-making for their own health and wellness.
As Nicole Jules of Secwepemc First Nation explains this about the health care system:
It is not somewhere that many First Nations have had the luxury of feeling or being safe in. So, building that trust through the understanding of consent as a process is crucial . . . .
Considering the roles and responsibilities and consent, the teachings of Dr. Danièle Behn Smith are needed at this time. She teaches us about the interconnected works of undoing and unlearning White supremacy. These teachings include that the work of Indigenous people is to recover, revitalize and heal, which can be visualized as a cedar basket. There’s uncomfortable work to be done by settlers, including many of you and me in this space. That work can be envisioned by a copper pot which involves system transformation and upholding inherent rights.
The power of this is stated by Toni Winterhoff of Xa’xtsa First Nation. She says that:
. . . advocating for informed consent is one of your super powers. You bring with you a wealth of knowledge and experience that lights the path for others. By illuminating the path and walking with a patient in true partnership, you create inspiring change within healthcare, and especially that individual’s life.
She thanks health care providers for bringing their most curious selves to appointments, their most attentive minds and their best intentions for each individual patient. The work done in a good way sends ripples of change further than any of us know.
I ask us all to lean into the empowerment of women’s rights and to choose, through the support of their right to meaningful consent in health care. It is our copper pot work. It is our right and responsibility to ensure accountability. This is all to protect the freedom of choice and bodily autonomy in whatever choice is made by the person receiving care. I thank you for your time today.
The Chair: Thank you, Dr. Malhotra. I have a question for you. What should informed consent look like? You spoke about it and you gave some examples, but for an intake sheet, what should it look like? What should doctors have to mandatorily ask?
Dr. Malhotra: The first thing involved for informed consent to be truly informed consent is the process a provider must take in practising cultural humility, ensuring they address not only their own personal biases. They must also address the biases within the health care system in which they work. Both must be done to ensure the forms, the process and the space they are working within and inviting someone into, which we want to be safe space, is in fact that. Someone needs to feel confident that the care they are receiving maintains no bias.
Further to that, the conversation must be coercion-free. There must not be a point when a conversation has been brought up repetitively or out of context. It requires that the patient understand why the conversation is occurring and that it is relevant to the care they are coming to receive.
After that, it involves ensuring that this conversation is happening at the correct timing. We’ve heard from survivors that the conversation is not appropriate at the time of duress. That can be the time immediately postpartum, for example. The conversation must begin at a time when the coercion of time can’t exist. We are not talking about urgent care here; we’re talking about care that has the opportunity for discussion.
Consent requires something that is legible if it’s in paper form, in a language that someone understands. If an interpreter is required, that is something that needs to be appropriately administered. It needs to be offered and available to a patient.
Then there is the incorporation of the potential barriers that a person may encounter when receiving consent. So geographical barriers, financial barriers and literacy barriers.
These all have to be thought about.
I start this conversation with cultural humility because it’s our job to ensure that we reflect upon those biases, because those are biases currently happening within our health care system and harming Indigenous people. So consent is a process, especially when we are talking about non-emergent care.
The Chair: Does anybody else want to add to what is informed consent?
[Translation]
Dr. Francœur: I would like to add that I completely agree with Dr. Unjali Malhotra’s proposal. In caring for pregnant women, one of the best practices is to discuss this more than once. That discussion must be documented in the obstetrics file, a decision should never be made impulsively during a visit and must always be discussed again at the appropriate time, such as for sterilization during a Caesarean.
Each province will have its own recommendations and each facility as well, but best practice means that there are already certain recommendations on the books. In particular, two signatures are needed and there has to be a witness or person close to the woman — whether her spouse or a family member — to ensure she has understood the impact of the operation and that it will be irreversible. That must be discussed a number of times and be clearly documented in her file during her pregnancy precisely to avoid pressure on the day of surgery.
What saddens me, because I am still practising at Sainte-Justine, is that there are all kinds of policies in place now regarding surgery, such as the “time out” policy, when we review the planned surgery. That is done in the presence of the nurse, the patient, her spouse, the anaesthesiologist, the gynecologist and all those in attendance. We repeat: “Are you Ms. Doe? Today we are performing a Caesarean. Are you sure you wish to be sterilized?”
Why do women not have the courage to speak up? I think that is where we have failed because we have to find a way to boost their confidence. They have the right to refuse and change their mind at any time — before the procedure, of course. We have to boost their confidence so they understand the importance of their power to say no.
[English]
The Chair: We will go now to the sponsor of the bill.
Senator Boyer: I have a question for Dr. Malhotra. Do you think that Bill S-250 will impact doctors giving emergency treatment?
Dr. Malhotra: Thank you, Senator Boyer. I have deep compassion and understanding for the concerns and fears of bringing a bill like this forward when we’re linking criminalization to medical care at any point. However, as a health profession, I ask you to consider non-emergent consent and emergent consent. Emergent consent, clearly stated by the Canadian Medical Protective Association, or CMPA, states the physician has the duty to provide immediately necessary care to save someone’s life. So knowing that, I hope that will be helpful.
Also, understand that we collectively and collaboratively, not only as practitioners but governing bodies, regulatory bodies and those that are creating guidelines, need to come together to ensure we all as health care providers, in all facets of health care, have a deep understanding of consent. I feel like the work over the past two years, or longer, that we have done in British Columbia, where we have a joint statement with the College of Physicians and Surgeons, made it possible to embed consent necessities within their consent guidelines, necessities and regulations. We had the opportunity to collectively and collaboratively come together on what consent is, means and what the requirements of it are.
I hope that work goes further as a national body of collaboration, because not only do we want to have relational practice, we want relational collaboration between providers as well.
Senator Boyer: Thank you.
I have a question for Dr. Francœur. It has to do with Committee Opinion No. 419: Coercion Free Contraceptive Care, which I thought was a very good document. We heard from a witness, Nicole Rabbit, who is a survivor of forced sterilization, and she mentioned how systemic racism is still widely apparent in the health facilities in her own community.
How effective do you think the guidelines have been in improving the care that Indigenous women receive? Have they been effective? How has systemic racism persisted in the fields of gynecology and obstetrics?
[Translation]
Dr. Francœur: Unfortunately, I think this process will continue and be supported.
As you know, I am from Quebec where I had the privilege of caring for Ms. Echequan. She had been admitted in my department. That is not where she died, but we were traumatized. She was with us for a month; we knew her. Staff were shocked by what had happened because that is not how things were at my hospital. I think that as long as there are women who do not feel respected, heard and listened to... When I was the department head at Sainte-Justine, it took 20 years for us to be able to let women take their placenta home. The placenta was considered a biomedical risk. We fought all that time, for 20 years, to let them take it home, even though it was very important to them. It seems a bit ridiculous to us now, but I think each small victory has to be counted and shared so the practice is the same from one hospital to another. Unfortunately, we know that some hospitals are much more proactive when it comes to systemic racism.
Personally, I think the only way to stop it would be for all of us in this room — for everyone to stand up when we witness gestures or words that are humiliating to women, not only to our daughters, sisters and mothers, but also to people we don’t know. That is how we will bring about change, but in the meantime we have to celebrate the small victories and try to achieve more.
[English]
Senator Boyer: Thank you.
Senator Batters: Thank you to all of you for being here with your very busy schedules. It’s much appreciated.
My question is for Dr. Francœur. The Native Women’s Association of Canada highlighted the importance of clarifying exactly what is required of a doctor when obtaining consent. They have made this recommendation aiming to ensure that patients are fully informed of the available options and the potential implications of the sterilization procedure to ensure a clear understanding and informed consent.
Given their proposal, what is your opinion on the clarity of the current provisions of Bill S-250 on consent? Do you think the text of the bill sufficiently details the obligations of doctors when they obtain consent for a sterilization procedure?
[Translation]
Dr. Francœur: I am a doctor, not a lawyer, so I will answer according to my expertise. It is not simply a question of having a consent form signed because we have to make sure the person has the capacity to consent. There are women who are illiterate, are afraid to say so, but we realize indirectly that they cannot read, but don’t want to admit it because they are ashamed. It is our job to make sure that when we ask a question, we have to check to see what they understood and have them repeat what we said to make sure they understood.
For my part, I have a bias. My practice focused primarily on pediatric adolescent gynecology, so I saw a lot of young women with an intellectual deficiency for whom reproductive health required a lot of imagination and explanation. That is our role. It is not simply a question of explaining the procedure and saying that we are going to remove a small part, a medium-sized part or the entire fallopian tube.
Yes, all of those things are important. Over and above that, though, we have to check whether the person sitting in front of us needs assistance or someone to reassure her, because we know that when we provide information or a negative diagnosis, two people will sometimes understand two different things. First we have to make sure the woman is safe and then determine when questioning her whether she has experienced traumatic events in the past. We have to talk about those things; we have to make sure she is not making a choice because it is being imposed on her, whether the procedure was recommended to her by a health care professional or a family member. We have to make sure it is her choice and then we have to provide all the information, the details, the pros and cons of other methods. When we ask for a patient’s consent for sterilization, we also talk about all the other methods of contraception because some have side effects that are extremely beneficial to a woman’s health.
[English]
Senator Batters: My second question for you, doctor: What does your association think of the fact that there are two different offences in this bill, the one in subclause (2), which is a more general one about performing the sterilization procedure, and then subclause (7), which is about coerced sterilization? What is your association’s position on that? Do you think that is the best way to have it, or is it better to do it as one offence section with it broke out that way? What is your association’s position on it?
[Translation]
Dr. Francœur: As I said before, I think Senator Boyer talked about our Committee Opinion No. 419. It is completely clear, from the first sentence to the last, that we would never support the indefensible position of forcing a woman to be sterilized without her consent. That is not acceptable. That statement is clear and firm. Regardless of the circumstances, that must not happen. Is criminalization a good thing? I am not a lawyer. I will let you judge. What worries us, as I said, is that sometimes in an emergency, what we are afraid of... We can see the turn things are taking in the United States right now where, in case of doubt, the procedure is not done, or if there is a procedure that might result in sterilization, even if that was not the intention... That is why we are concerned that women will not receive proper care.
Senator Dalphond: Many thanks to our witnesses. It has been very interesting.
My question is for you, Dr. Francœur. I understand you are quite afraid that the bill could paradoxically result in women in an emergency not receiving appropriate treatment. I understand that. On the other hand, that leads you to say that you do not support criminalization. Perhaps we can better define it to assuage some of your concerns.
At the same time, I am also very concerned that forced sterilization is a serious violation of personal integrity. It is still happening to this day. Would including a section in the Criminal Code not send a stronger message or bolster the messages being sent by faculties of medicine, associations, colleges and so forth? Parliament would be saying, “Just a second, you will be going to jail if you do that.”
Dr. Francœur: Once again, I am a doctor, not a lawyer...
Senator Dalphond: One mustn’t underestimate the impact of legislation on behaviour.
Dr. Francœur: I completely agree with you that those practices should have completely disappeared since at least 1986, because we do not have the right to sterilize someone without their consent; it is illegal. I have been practising medicine for 30 years; even during my training, which was an additional 10 years, I never saw that, but I know it happens because women have told me about it. I believed those women because it is true.
How can we make sure that this never happens again, from one province to another, one hospital to another or one gynecologist to another? That is for you to judge. In our opinion, it has to stop, it should not be done any more.
I think medical colleges, at least the one in Quebec, are definitely planning to do something because recommendations will be coming out soon that will be much more aggressive towards those doctors, be they men or women, who commit those horrors. You know, colleges have the power to revoke a medical licence. If a doctor sterilizes women without their consent, they should no longer be allowed to practice. The college has those power. Would criminalization be the best approach? That is for you to decide, but clearly we would never defend doctors who perform sterilization without consent.
Senator Dalphond: In the field of obstetrics, do you know of any obstetricians who are facing disciplinary measures for that reason?
Dr. Francœur: For sterilization? No, not at all. Perhaps I live in a dream world in my hospital, a tertiary care centre where we try to follow the recommendations. The way to nurture the students of tomorrow is to set an example. I didn’t start my practice yesterday. However, our major concern — and at Sainte-Justine, we were at the end of Roxham Road — was the large number of immigrants coming in. The consent issue is a nightmare for us, when we must ask a child to translate because the woman speaks Turkish and we don’t have any interpreters. When we have something urgent to do, when in doubt, we do the minimum.
Dr. Cook and I are working closely with the United States Centers for Disease Control to reduce maternal mortality. This is a significant issue. Women are dying from ectopic pregnancies. We must operate on them. Unfortunately, we must remove the fallopian tube. This was discussed at the last meeting. Even though everyone says that no one does this anymore, the criminalization issue — and we see it especially in central United States — has changed the treatment provided.
[English]
Senator Prosper: Thank you to the witnesses for your excellent testimony on a matter that is quite complex, given the nature of the testimony.
My question tries to get at the subject matter of informed consent. What I’ve heard from some of the testimony indicates that there is a distinction between emergent and non-emergent care, and there are certain considerations within that.
There are also unique features that I believe were mentioned with respect to barriers to consent, and they could be geographical, financial, cultural or linguistic.
What I’m curious about is that since informed consent is one of the central matters at hand here, is it more of a process consideration that one should take into account when we’re talking about informed consent? Or is it something that is best suited to a particular time or place, in which you get that informed consent? What are the best practices we have here in this regard?
[Translation]
Dr. Francœur: The best practice when making a decision about surgery, as I was saying earlier, involves ensuring that the patient is always accompanied — if she refuses, that’s her choice — so that she feels comfortable and understands everything. The person accompanying her — someone whom she trusts — must also have the chance to ask the necessary questions and make sure that she understands the answers, and so on.
I think that ideally we should use language that matches the literacy level of the person before us. When speaking to an obstetric nurse, we won’t explain things in the same way as we might to someone who has no idea how the reproductive system works.
That said, consent must be provided. We must take the time to think and to take in all the questions. We must also take the time to meet again for an appointment and make sure that the person is completely comfortable with the information provided.
During the pandemic, we sometimes picked up bad habits thinking that we were helping people. In my opinion, these habits are horrible. For example, discussing surgical consent over the telephone isn’t a good practice.
The Chair: Thank you, Dr. Francœur.
[English]
Dr. Malhotra: I appreciate this conversation. We’re sharing best practices of consent wherein by the textbook this is what the most appropriate consent would be, but I have to highlight that in British Columbia, in plain sight, it was very clearly shown that anti-Indigenous racism is ongoing and current, and that is a time when consent does not occur freely, appropriately or in an informed fashion. The power dynamic between the health care system and the patient will then be completely breached. Also, in a case where racism is an ongoing concern within our health care system, we know that cultural humility is not being practised. Someone is not reflecting on their biases or the biases in the system, and the system hasn’t been challenged with regard to how consent is obtained or care is provided.
I want to point out that anti-Indigenous racism is the root of this problem as well as racism toward other Black, Indigenous, and Person of Colour, or BIPOC, populations. This is not a conversation that is necessarily related solely to best practice. That is what should exist and what we have embedded in all of the work we have done with the regulatory body in British Columbia, as well as in the products and reports that we have released. However, we are not at the stage yet where we can say that this is occurring without racism in our system.
Senator Simons: My questions are for Dr. Francœur and Dr. Cook, I think.
The bill would seem — at least according to one reading of it — to make it a crime to perform sexual sterilization on a minor. Can you give us some examples of times when it might be necessary, whether dealing with endometriosis or a rare cancer in a young patient, whether it’s a hysterectomy, an orchiectomy, or — although gynecologists don’t usually deal with it — a testicular torsion or cancer? Would there be times when good medical practice would be to perform a medical sterilization on a minor?
[Translation]
Dr. Francœur: I can answer you. I’m a pediatric gynecologist.
It’s rare, but there can be defects. Usually, these children are born with multiple defects, either genital or bladder defects. The uterus and intestines are in one orifice and reconstruction is required. Unfortunately, the uterus will be partially removed or the fallopian tubes, because of bleeding and so on. However, this is quite rare.
Obviously, this type of major surgery will be carried out in cases of cancer, for example, where unfortunately the parents will have the power to decide, depending on the child’s age — the youngest baby that I have seen with vaginal cancer was three months old. Unfortunately, incomprehensible things sometimes happen and we must provide treatment.
I’m more concerned about the impact in terms of the consent provided now, for example when a child or a young woman undergoes chemotherapy or radiotherapy. Sometimes, she’ll realize 10 years later that she’s infertile. When the patient consents, we’ll discuss the risks with her or her parents. However, we can’t know for sure whether infertility will occur. These are unusual cases, but they can happen.
[English]
Senator Simons: As I read the bill, a parent couldn’t give consent. Let me ask you this question: If I’m a gynecologist and I run the risk of a patient laying a criminal charge against me because I thought that the patient had consented and they say afterwards, “No I felt coerced — not even necessarily by the doctor — but by somebody else,” do you think it is going to become harder for women who legitimately wish to receive these treatments — whether it be a tubal ligation or a hysterectomy — to get the treatment that they need if doctors are afraid that they could run the risk of criminal prosecution?
[Translation]
Dr. Francœur: That’s our biggest concern, especially, unfortunately, when we look at the situation in the United States. That’s the reality over there. When we speak with our colleagues, they tell us that they no longer do this and that they no longer run the risk.
This year, at their big resident training conference, all the simulation classes involved learning how to do a curettage, a key procedure in a gynecologist’s training. However, they no longer learn this procedure because of the criminalization of abortion. So, yes, the risk is there.
In terms of consent, that’s also why we strongly encourage the whole debriefing process.
[English]
Senator Klyne: My first question is for Dr. Francœur. Do you foresee any challenges that doctors may encounter in adopting and implementing the objectives of this bill in their practice?
[Translation]
Dr. Francœur: I think that yes, criminalization will affect doctors.
I would say that the vast majority of gynecologists have exemplary practices when it comes to consent, sterilization and so on. However, if just one continues to do this, it’s already one too many. It must stop, as you said. We fully agree with that.
How will criminalization extend beyond what the Supreme Court clearly established in 1986? I think that the powers are there. The colleges of physicians have all the rights. They do expulsions. Every year, doctors lose their licenses permanently. I think that the powers are there. Will it be more significant? I don’t know. However, we’re concerned that the criminalization aspect may affect women’s reproductive rights, as we’re seeing in the United States. We usually have a fairly similar practice.
[English]
Senator Klyne: Thank you.
I have a question for Dr. Cook.
Besides this legislation, are there any initiatives or measures in place within the medical profession in Canada that could be used to address the unique struggles of Indigenous women and girls with regard to forced sterilization?
Ms. Cook: Thank you. Full disclosure, I’m not a physician; I’m a scientist. At the Society of Obstetricians and Gynaecologists of Canada, or SOGC, I do all of the work related to evidence-based guidance and practice.
What we’ve been working on for a really long time in our organization — and we do work in conjunction with Dr. Malhotra and other partners around training health care providers, not just obstetricians and gynecologists, but we’re working in the fields of trauma-informed care right now. We are working in perinatal mental health, in different types of communities, with the African, Caribbean and Black, or ACB, communities, with the gender-diverse communities and with Indigenous partners related to Indigenous health, trying to help both health care providers and the public and patients have what they need in terms of information in the way that they need it along with the tools and resources to be able to have that collaboration. Again, I’m not a health care provider, but for collaboration, if everybody knows the same things and is using the same vocabulary, it’s theoretically, in evidence, helping to reach that common place of understanding.
What we’re doing — and we talked about the guideline — we are talking on trauma-informed care guidelines. Also, we are releasing a website — and everybody is invited to our launch on March 27 — looking at endometriosis, abortion and trauma-informed care with special resources that have been created by communities for the subpopulations, and we’re developing that criteria into everything that we do.
When we do online courses, when we do clinical practice guidelines, when we do any kind of position statements, not just thinking about — no offence — downtown Toronto, but thinking about other populations and some of those more specific and personalized needs that are around communication and respect.
Senator Clement: Ms. Dion Fletcher, you and your colleague spoke of culturally rooted care and going beyond this bill. What does that look like? It’s urgent, and so the Indigenous-led tools you referred to, if you could add to that and talk about that.
Dr. Malhotra, you spoke often about cultural humility. Those are interesting terms. Could you explain what that would look like? How do we get medical health care practitioners — because this is urgent — how do we get them to start to recognize their biases and not just, sort of, say that it’s urgent and that we have to stop it? What do we do to be culturally humble?
Ms. Dion Fletcher: Thanks for the question.
I would like to point out that we are really talking here today about a colonial problem, and we’re talking about a colonial solution to this colonial problem. We also have to think about this from an Indigenous perspective and what an Indigenous response would be, and this would be rooted in relationships and focused on prevention.
One of the key ways that we can do this is through Indigenous health care providers, Indigenous midwives, Indigenous doctors, nurses and patient navigators who are there to promote the autonomy and self-determination of Indigenous people and promote consent. Particularly, when speaking about Indigenous midwives, talking about this from an early age and how that can impact the entire life cycle.
We’ve heard from a lot of non-Indigenous people about the way that anti-Indigenous racism is seen in the health care setting. We’ve heard less from Indigenous people about what that looks like, but a key way we think about it happening is the very obvious things. It’s great to have smudging policies. It’s great to have a policy about placentas, but we have to deal with the paternalism against Indigenous people that we see from doctors in the health care system and doctors thinking that they know what is best for clients.
I understand that doctors and all health care providers have expert knowledge in health and medicine, and this is extremely important in health care, but we also have to recognize that Indigenous people and Indigenous women have expertise in their own bodies. When we continuously, as health care providers, say what we think is best for Indigenous people, we are taking away their ability to say what is best for them and to make decisions about themselves.
Senator Clement: Bam.
Dr. Malhotra?
Dr. Malhotra: Thank you. At the First Nations Health Authority, we support the bill, but we also support providers. We have created a consent guide for health care providers that details very clearly from the voices of many First Nations people what consent should look like. We have supported services at home and closer to home. We have supported the growth and integrity of colleges and universities growing Indigenous health care provider roles, responsibilities and visibility within health care settings.
We have also worked, in bringing services closer to home, related to hearing stories from community and ensuring that that is the voice that — because at FNHA, we serve community. We want that voice to be the one that guides any work we do and any work we support, which is why I’m here today.
Senator Cotter: Thank you to the witnesses for their presentations. This is an extremely important, very specific question, but it has significant ripples, I would say, based on culture and indigeneity and racism.
I think all of us are supportive of the position that this practice needs to come to an end. One of the questions is whether or not the Criminal Code is the best way to do that or is a needed way to do that. I’m somewhat sympathetic to that. Then the question is whether this particular legislation is.
I want to ask a specific question, I think, primarily of you, Dr. Francœur. You said that you had never done a sterilization practice that was not consented to by one of your patients. Have you ever in circumstances of medical concern for a patient suggested that they should have a tubal ligation or that maybe they should have a hysterectomy, as a legitimate, needed medical treatment?
Just a simple yes or no. Have you ever suggested it?
[Translation]
Dr. Francœur: Yes, often.
[English]
Senator Cotter: So my question now for you is, if I understand this bill, if you suggest to the patient that they should have this sterilization treatment, consent is vitiated. That means there is no consent. Does that concern you?
[Translation]
Dr. Francœur: I think that your question skates around the issue. Sometimes, for example, if a woman has a sixth, seventh or eighth Caesarean, she’ll be told that the bladder was taken out or that the intestines were glued together. She faces risks, but ultimately, it’s up to her. We’ll explain everything to her. In obstetrics, we have worked with Jehovah’s Witnesses. We let them choose.
[English]
Senator Cotter: I get all that. But it seems to me the worry here — and it is a concern with, at least, this one provision of the bill — is that you are likely, as the doctor, to know of the medical concern that the patient has far better than the patient will know, so you are more likely to be the one that says, “A helpful and important treatment here might be X, which would lead to sterilization.” And the patient then says, “Yes, Doctor, proceed with that.”
But the way this bill is constructed is that if you suggest the sterilization treatment, the bill says that, by definition, there is no consent here.
[Translation]
Dr. Francœur: Again, it’s a matter of interpretation. I must inform the woman of the situation. I must warn her of the risks of a future pregnancy. That’s my ethical obligation. I can’t lie to her about it. I can’t let her run the risk of dying during her next pregnancy. Sometimes the uterus will be so thin that we know that she faces enormous risks of rupture. We can’t keep her in the hospital for the whole pregnancy.
Given this, we must tell women the truth. They will then make the best choice for themselves. However, I must tell them the truth. This isn’t the same as implying that we’ll tell them that it would really be better for them. The choice is theirs. The choices are there.
[English]
The Chair: Sorry, senators, we went a little bit over time. Thank you to the witnesses. This was very interesting. That’s why I wasn’t cutting people off. Thank you, Dr. Malhotra, for joining us by video. We will end the committee now. May I remind steering to stay back, please.
(The committee adjourned.)