THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, March 21, 2024
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:54 a.m. [ET] to study Bill S-250, An Act to amend the Criminal Code (sterilization procedures).
Senator Denise Batters (Deputy Chair) in the chair.
[English]
The Deputy Chair: Good morning, honourable senators. I am Denise Batters, senator from Saskatchewan, and I am deputy chair of this committee and acting as chair today.
I invite my colleagues to introduce themselves.
Senator Cotter: I’m Brent Cotter, a senator for Saskatchewan.
Senator Tannas: Scott Tannas from Alberta.
[Translation]
Senator Dalphond: Pierre J. Dalphond from Quebec.
[English]
Senator Prosper: Senator P. J. Prosper, Nova Scotia.
Senator Simons: Senator Paula Simons, Alberta, Treaty 6 territory.
[Translation]
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator McBean: Marnie McBean, Ontario.
Senator Boyer: Yvonne Boyer, Ontario.
The Deputy Chair: Thank you very much.
Honourable senators, we are meeting today to continue our study of Bill S-250, An Act to amend the Criminal Code (sterilization procedures).
For our first panel, we are pleased to welcome the Canadian Medical Association: Dr. Kathleen Ross, President, and Dr. Paula Cashin, Board Vice-Chair. Welcome and thank you for joining us. We’ll begin with your opening remarks before we move to questions from senators.
The floor is yours for five minutes when you are ready.
Dr. Kathleen Ross, President, Canadian Medical Association: Thank you very much, and I’ll do my best to give time for questions.
My name is Dr. Kathleen Ross. I’m a family physician working in British Columbia. I also work in cardiovascular surgery and do a great deal of work in primary care obstetrics.
As president of the Canadian Medical Association, or CMA, I represent the convictions and interests of the country’s physicians, those whom we care for and those who do not have access to care. Joining me today is Dr. Paula Cashin. She is the Board Vice-Chair of the Canadian Medical Association and Canada’s first Indigenous radiologist and nuclear medicine physician.
It is a pleasure to be here in Ottawa. I acknowledge that we are on the unceded territory of the Algonquin and Anishinaabe nations. I appreciate the opportunity to attend and speak to the committee.
The Canadian Medical Association has strongly denounced the abhorrent acts of forced and coerced sterilization. That includes surgical procedures to permanently prevent conception, any method that alters the fallopian tubes, ovaries or uterus or any other action that is taken with the primary purpose of stopping conception permanently. These practices are rooted in deep systemic racism and discrimination. They have inflicted, as the committee has heard, irreversible harm on predominantly Indigenous women and perpetuated cycles of inequity and injustice. This dark legacy of sterilization under coercion is woven into the fabric of our country’s history, and it is not yet far enough behind us in our rear-view mirror.
Those supporting these practices, both in government and in the medical community, sought to reduce birth rates in First Nations, Inuit and Métis communities, in Black communities and among people with intersecting vulnerabilities related to social and structural determinants of health, ethnicity and disability.
Therefore, we meet today — the medical profession and members of the government — to address this inequity — this injustice.
The Canadian Medical Association, representing physicians and medical learners, is deeply committed to upholding the highest standards of medical ethics and patient care. Despite this commitment as medical professionals, we must acknowledge our profession’s historical role in these unethical practices.
It is the duty of government to uphold the highest standards of an ethical health care system. It is critical that Canada pledges its unwavering commitment to safeguarding patients’ rights and dignity — for all patients and all people in Canada. The introduction of Bill S-250, aimed at amending the Criminal Code to criminalize sterilization procedures performed without free and informed consent, represents a commendable and crucial step toward remedying this long-standing injustice. The CMA fully supports the Senate committee’s recommendation to prohibit these practices, recognizing the importance of ensuring stringent safeguards and informed consent for all medical procedures.
Our work is not done with this one endorsement of a long overdue amendment to the Criminal Code. However, it is a single, crucial step to moving forward. Together, we must eradicate explicit and systemic racism against First Nations people in our hospitals and in our publicly funded health care system. Together, we can commit to transform our health care system into one that truly respects and protects the rights and autonomy of every patient, particularly the most vulnerable and marginalized.
Canada’s health care system is in need of modernization, as it is not meeting the needs of many Canadians. We seek reform through our entire health care system, and as we do that, we cannot lose sight of the pillars of medical ethics. The CMA does possess a code of ethics and professionalism that can guide us in designing a system that is truly universal, offering support to all who seek care. These guiding principles could also bring value to you and to your peers as the government leads this work. These principles emphasize the treatment of all patients with dignity and respect, regardless of their conditions or circumstances; prioritize the health and well-being of patients; build relationships with patients that are rooted in trust with a recognition of vulnerabilities; support patients’ autonomy to make informed decisions about their own health according to their own values and preferences; and forward social justice, addressing disparities in health care and advocating for the rights of marginalized and underserved populations.
As such, the CMA fully endorses the changes to the Criminal Code as outlined in Bill S-250. We look forward to a future where every individual’s rights are protected. We look forward to a Canada that assures the sanctity of patient consent is held paramount in our health system. We bear the responsibility for paving the way to a future where every person in Canada experiences health care as a place of safety, dignity and care.
On behalf of the CMA, I thank you for the opportunity to share our perspective on this critical issue and contribute to the necessary changes in our health care system. Thank you.
The Deputy Chair: Thank you. Now we will begin with questions.
Senator Dalphond: I thought maybe the sponsor of the bill would have the first question.
The Deputy Chair: Sure, we can do that.
Senator Boyer: Thank you, Senator Dalphond, and thank you, Dr. Ross and Dr. Cashin, for your presentation. I appreciate it, and I appreciate you being here today.
The Canadian Medical Association, or CMA, does research and advocacy, and it supports Canadian physicians and medical learners. Do you think that hospitals will be able to effectively guide doctors and empower patients by creating good policy in response when Bill S-250 becomes law, and how do you see that happening?
Dr. Ross: I have tremendous hope that this will actually light the fire under processes that are already beginning.
I’d like to take an opportunity for my colleague, Dr. Cashin, to speak a bit about the work that the Canadian Medical Association is undertaking in our commitment to meet the needs of First Nations, Inuit and Métis peoples in Canada.
Dr. Paula Cashin, Board Vice-Chair, Canadian Medical Association: Thank you for the invitation to speak today.
The CMA has been doing incredible work on Indigenous health. It’s one of our strategic priorities. We’re doing this work in a very good way. I’m a Mi’kmaq physician from Newfoundland, and I’ve never quite seen this level of engagement in any medical organization, and I’m involved with a lot of medical organizations, and I have worked in health care for 20 years now. The difference is that the work is being led by Indigenous peoples. About a year ago, we started with our first Indigenous guiding circle, which was a group of 16 elders, knowledge keepers, experts, physicians and other health care workers, and people with environmental and language expertise. It was a broad, diverse group of people from Métis communities, Inuit and First Nations. It was quite an incredible group that we convened at the CMA. We’re fortunate to have the advice and guidance of that group.
Out of that came our Indigenous health goal. Ms. Ross, I think you have it here, so I don’t misspeak. The CMA has made it a priority to make measurable improvements to Indigenous health and wellness, supported by a transformed health system free of racism and discrimination; one that upholds Indigenous peoples’ rights to self-determination; values, respects and holds safe space for Indigenous world views, medicine and healing practices; and provides equitable access to culturally safe, trauma-informed care for all First Nations, Inuit and Métis.
Speaking as an Indigenous woman, I can tell you this is how I want to see our health care system.
That was our first step. At the end of that Indigenous guiding circle, the board unanimously endorsed that health goal. That’s our North Star; that’s how we see that at the CMA. This is what we aim for and how we envision the future of health care in Canada for Indigenous peoples. It’s quite a lofty goal, but it’s one we’re capable of getting to.
Since then, we’ve had a second guiding circle with some repeat members, some new members as well to come in as our Indigenous guiding circle second group. This group has been particularly helpful in guiding our work toward an Indigenous apology.
The CMA is fully committed to looking at the harms that have been caused to Indigenous patients on behalf of physicians in Canada. We’re doing that hard work internally, reviewing our own practices, documents, journals and going back through the last 150 years to see what harm has been done and what has been the CMA’s role in causing that harm. From that information, which we’re still collecting. We’re getting toward the end of that process. The plan is that, on September 18 this year, we’re going to have an Indigenous apology. We’ll be meeting as a group, inviting Indigenous elders, knowledge keepers and leaders from across the country to meet with us and actually apologize on behalf of the CMA and on behalf of physicians in Canada for the harms that have been caused to Indigenous peoples in Canada. It is not only about the harms that have been caused in the past but recognizing that those harms are ongoing.
This bill certainly fits within that framework. One of the things we will be apologizing for is the forced sterilization of Indigenous women.
That is to happen in September. It is not just going to be an apology. I think the most important part of an apology is actually going to be the action plan that follows. The week after the apology, we’ll be announcing what our action plan is. That’s still being formulated — we’re still working on that — with the guidance of our Indigenous elders and knowledge keepers. There will be a strong action plan to follow the actual apology.
Hopefully, we can start addressing the Indigenous racism that exists in health care today.
Dr. Ross: That is how I would consider addressing your question.
Senator Boyer: Thank you.
[Translation]
Senator Dalphond: First of all, welcome to the committee. It’s always a pleasure to be joined by witnesses who know their fields well.
[English]
My question is a bit technical. I assume you’ve read the bill as it is. I don’t know if you followed yesterday. There was testimony from the Chief Executive Officers of the Society of Obstetricians and Gynaecologists of Canada. I don’t know if you listened to it. She raised concerns about the way the definitions are structured in that they might have a chilling effect on surgeons or doctors who are in an emergency situation and might not be able to get consent but need to perform some surgery that might result in sterilization. Do you want to comment on that?
Dr. Ross: Thank you for your question. I’m happy to comment on that, as someone who does a great deal of primary care obstetrics.
The way I have interpreted the bill is not for those emergency life- or limb-saving procedures. I have seen the need for emergency hysterectomies when all else fails. I work in a tertiary-care facility where I have at my disposal everything imaginable to treat and prevent hysterectomy, and even with that high level of care, it’s still possible.
Those are not the things I see captured by this bill. That is not the criminal intent that we see in this bill. We see this as procedures without proper consent and coercion without time for consideration for an irreversible harm. The harms that are done by involuntary sterilization are immense and carry forward for generations, as this committee has heard from other testimony.
I think we have to look at the preservation of life through any means versus intentional harm.
Senator Dalphond: I see you have a master’s degree in Law also.
Dr. Cashin: As a physician, I’m not an obstetrician but I am an intervention radiologist. I’m quite familiar with having to do procedures and having to get consent. It’s part of my everyday practice as a radiologist. I actually welcome this bill. I would argue the opposite side of this, that by having this bill, you’re basically drawing a line in the sand and saying this is the behaviour that’s acceptable, and this is how consent has to happen.
I really feel that how this bill is carried out in the criminal justice system is far beyond my level of expertise, but in terms of medical culture, I know how hospitals work — often there’s a hidden curriculum. So to me, this will start the conversation around consent and how we obtain it. I think that’s a very important conversation.
I teach Indigenous health at Memorial University. Part of my teaching is around medical harms that have happened and how we deal with that. This is one of the examples that I use, forced sterilization of Indigenous women and the importance of consent. Students leave my classroom knowing how I present that and then go out into the system.
We all know how to get consent, but how is this happening day to day? How do we see it on the ground in practice? I really feel that this bill will show exactly how important this issue is because I know there are a lot of physicians who don’t even realize this is an issue. I think it will start that very important conversation around consent. I very much welcome this bill from that perspective. As Dr. Ross has already said, those emergency situations will happen regardless.
Senator Dalphond: The question was more technical. I think we all agree on the principles.
Are there other ways to do sterilization rather than clipping, tying or cauterizing? The definition of sterilization procedures includes any act performed by a person for the primary purpose of permanently preventing conception. That was also raised as a concern, namely, that perhaps the definition is too broad.
Dr. Ross: There are many ways. We’re talking specifically about women and we’re mostly talking about surgical procedures that alter the functionality of the reproductive system. There are medications that will alter fertility in women, and there are medications and surgical procedures for men as well. I think the fact that it is broad leaves open the discussion for consent for all procedures that would impact someone’s fertility moving forward. I don’t argue with that. I think the implication that this is intentional within adequate consent is apparent in the bill.
Senator Dalphond: Are these procedures permanent or reversible?
Dr. Ross: It’s a mixture of both, depending on which medication we are speaking about. When we remove a fallopian tube, we are not able to put that back, but there is some reversal possibility for male surgical procedures, such as vasectomy, and medications have varying impact depending on how they wear off.
Senator Dalphond: Thank you.
The Deputy Chair: I just want to interject here. Going back to one of the questions that Senator Dalphond asked on a more technical aspect, what do you see — and perhaps we can ask Dr. Cashin, given your legal background.
What do you see in this bill that gives you comfort on behalf of the Canadian Medical Association that the type of emergency procedures that might actually be required would not be covered by this?
Dr. Cashin: In an emergency situation, we all know that physicians are going to be covered, as Dr. Ross has said, to save life and limb. We know, as professionals, that we will be covered for that.
I think that in terms of this bill, we’re looking at situations where you have time to get consent and you’re not doing that properly, or you’re getting consent in the wrong circumstances, such as when a woman is in the middle of labour and insisting that she have a tubal ligation. It depends on the situation and the timing.
I think that in terms of emergency situations, as a physician, I don’t think you would have to worry that you’re going to be accused of a criminal act if your intention is to save a life.
The Deputy Chair: Is that because of the existing Criminal Code section or something like that? I’m wanting you to point us directly to what you’re relying on to be able to state that.
Dr. Cashin: To my knowledge, the current Criminal Code has not been used for forced sterilization. I’m not aware of any cases that have successfully used that legislation to deal with forced sterilization.
Senator Prosper: Thank you to the witnesses. I was quite curious about the question just mentioned by Senator Batters with respect to the bill and any language within the bill that suggests it’s strictly applicable to non-emergency situations.
But I take it from your testimony, Dr. Cashin — or even Dr. Ross — that you don’t see any language within this bill that would put it strictly within the purview of non-emergency situations?
Dr. Ross: I would have to acknowledge that neither Dr. Cashin nor I are lawyers. In terms of the specific wording, I did not see anything that I found threatening as someone who is involved in these situations. I acknowledge that there is a difference of opinion from the testimony of Dr. Francœur yesterday, but from the perspective of non-lawyers, looking at the issue of consent and trying to dismantle anti-Indigenous-specific racism and discrimination inside the medical profession, the wording in the bill did not cause us alarm.
Senator Prosper: Thank you for that.
Another point, and this was subject to the testimony yesterday as well, is an element of consent with respect to the person not initiating a voluntary request to undergo a sterilization procedure.
I’m curious. The way that it seemed to be framed, the duty of medical practitioners is to examine some of the options with respect to the health of a particular patient. Part of that might be talking about sterilization with respect to the patient themselves. It seems that some of these considerations around consent, if it’s not initiated by the patients themselves, then it can draw a question to a medical practitioner raising it in the first instance.
What I’m curious about, do you think that can cause certain problems down the road for medical practitioners, as a long continuum of health care for the patient, to even consider this subject matter?
Dr. Ross: Certainly, I counsel women routinely for postpartum contraception. Patients will come with the questions — “I’m looking for something temporary; I’m going to have another child in a few years.” We do ask the questions: “Are you planning to have other children? When would you be planning to have other children?” Out of that conversation will typically come the ask that, “I’m done. Should it be me or my partner that has the procedure done to end our fertility?” These questions do come up routinely.
I think what we’re trying to avoid in the wording of the bill, as I’ve interpreted it, is that it is avoiding those discussions out front, saying, “We’re doing a C-section, so we can take your tubes at the same time.” That is planting a seed of an irreversible procedure. Whereas other women will say, “I’m going to book my elective C-section, and I would like to have permanent sterilization done at that time.” Those are very different conversations.
I think the way the bill is worded prevents that pre-emptive suggestion of “we can end your fertility” without having that wholesome discussion about all the alternatives. We have a lot of alternatives for contraception that could be considered permanent or long-standing versus surgical procedures.
Senator Simons: I want to pick up right where Senator Prosper left off because this is a concern that was raised by the officials from the Department of Justice Canada, and by Senator Cotter yesterday.
As I read the act, if someone other than the patient initiates the conversation, the patient can never consent. I worry not just that a physician could go to jail for making a good faith, medically logical suggestion, but that you would actually be infantilizing patients by saying they lose the capacity to consent if somebody puts this forward as a suggestion.
I’m curious, have you ever in your practices suggested to a man that he have a vasectomy or suggested to a woman that tubal ligation or hysterectomy might be an option, whether that’s for endometriosis or for a fibroid tumour or something else?
Dr. Ross: There’s no question at all that those discussions happen. They happen every day in primary care — absolutely — offering a potpourri of treatment. However, it’s a different process to approach people with a single mindset that this is what we’re going to offer you, rather than providing a list from which a patient can feel empowered — can go away, make the decision and do their own research.
Senator Simons: The problem is that the legislation doesn’t differentiate. It says that if a person has not initiated a voluntary request, they can never give consent. I’m worried that someone could be trapped.
I also wanted to ask you about the age limitation, which says that it is a criminal offence to sterilize anybody under the age of 18. Not even a parent can give consent in an emergency situation or a situation where somebody has a rare but possible uterine cancer or has terrible endometriosis or is seeking gender confirmation surgery. Are you worried at all that nobody under the age of 18 would ever be able to receive this treatment without the doctor running the risk of criminal sanction?
Dr. Ross: I’ll speak personally as a physician first, because at the Canadian Medical Association, or CMA, we don’t have a policy that guides that specific challenge. As a physician who deals with people from many ages and stages, I would support that age limitation, knowing that I have significant alternatives to provide care to address the specific issue of fertility. If it is a cancer or something that requires a larger discussion around pelvic organs for removal or treatment to address severe endometriosis or cancers, I think that’s a different conversation than specifically what the bill is intending. I understand the risk.
Senator Simons: What worries me is that the bill says every sterilization is illegal — each one unless, unless, unless, unless. This absolutely — as I read it — applies to men, whether that’s a 17-year-old basketball or football star who has a testicular torsion. I’m just really worried that it is going to reduce patients’ abilities to give consent and to have surgeries when they need them.
I understand that you’re saying that, in your mind, that doesn’t apply, but reading the legislation, I don’t share your confidence.
Dr. Ross: I think that’s fair.
Senator Tannas: I’m going to take the baton. Personally, I am onside for this bill. We’ve heard unequivocally that you’re onside for this bill.
Have your lawyers looked at this and said that this is all good and there are no worries here? Are they saying there is nothing that your thousands of colleagues are exposing themselves to and that they’re not being captured inadvertently in something they might do every single day? Have your insurers for malpractice via lawyers seen it and said that this bill is perfect? Are you here to tell us that? Or are you here to tell us you’re onside for the concept?
Dr. Ross: Senator, I don’t follow a ton of bills; I’ll acknowledge that. But I have yet to see one that was perfect as written. However, with that aside, I think we are on board with the concept. We want to uphold that north star of ethical professionalism that prevents racism- and discrimination-induced sterilization and harm to all Canadians. The legal aspect — the technical aspect — I would have to leave to lawyers. However, we are onside with this concept.
Senator Tannas: Are your lawyers coming, or are you hoping that we’ll get the bar association or somebody to come? Will there be medical and legal experts not from the CMA but from some other place coming that you would leave it to them to talk about? That’s what you’re saying, right?
Dr. Ross: That would be a great question. I don’t know who else is testifying on this particular matter. What we are trying to throw our support behind is the wording that specifically prevents intentional harm.
Senator Tannas: Thank you.
The Deputy Chair: To follow up on that, yes, we will have others to testify from a legal perspective. However, I have to say that a lot of times when we have major organizations like the Canadian Medical Association, the legal perspectives are usually taken into account when they’re coming to the Senate Legal Committee.
I want to briefly follow up on that too. You are representing the physicians of the Canadian Medical Association, and I’m assuming that your organization has significant legal representation behind you. Was your presentation today to come and suggest no amendments to this bill in support of this bill? Was that something that you received their guidance on?
Dr. Ross: Absolutely.
Dr. Cashin: The Canadian Medical Association represents physicians, but the conversations we’re having now around malpractice — in the interest of full disclosure, I am on the council for the Canadian Medical Protective Association, or CMPA. I’m not here to speak on behalf of them today. I don’t speak for them today. I’m here for the CMA.
I think those perspectives would have to come out of those bodies and out of our medical colleges as well. I think they would have that perspective. The Canadian Medical Association certainly represents physicians, and we are fully in support of this bill. If there are legal technicalities and issues we have to address, then I don’t know that the CMA is particularly the body that would do that. However, there certainly are medical organizations that could look at that and could be brought before this committee to speak to those.
The Deputy Chair: Yes, and we will have that. Thank you very much.
Senator Cotter: Thank you for being here. Most of us are not medically trained in this committee, and that’s certainly the case for me. As much as anything, mine is a medical question.
Does it occur that minors — that is, people under 18 — sometimes need medically necessary treatments that lead to sterilization? Does that happen in some circumstances based on a young person’s — usually a young woman’s — health?
Dr. Ross: It did, in fact, happen in my practice. We had a young person with an ovarian tumour that required removal at the age of 16 and subsequent bulk of the opposite ovary removed several years later at the age of 18, which significantly compromised her fertility. I have seen harm done inadvertently in dealing with trauma from car accidents and blood supply to ovaries as a result of trauma where, again, life and limb resulted in treatment that compromised fertility. Those are definitely possible.
Senator Cotter: My second question is this: You had mentioned that there are emergency circumstances where doctors intervene to save a person’s life and that could, in some cases, lead to permanent sterilization of the young woman. This bill doesn’t explicitly talk about the exception of emergency situations. I guess the question is whether that is a concern for you. Could the bill be modified to address that issue, both for good health reasons but also for the protection of the practitioner who might do it?
Dr. Ross: I think we would certainly welcome a modification that would explicitly name those emergency situations. But, as Dr. Cashin has mentioned, when it comes to life and limb preservation, there are already protections in place for physicians performing those life-saving procedures.
As Dr. Cashin mentioned, in general, enforcement of clinical standards is in the purview of the provincial-territorial regulatory bodies, but many of those bodies look to the code of ethics and professionalism and other policies that the CMA implements to guide their decisions.
Senator Cotter: They might also have to look to the Criminal Code.
Thank you.
Senator McBean: Thank you for your time and expertise. I’m finding it really interesting.
I understand this is an act to amend the Criminal Code, and I’m looking at this on the other side, after the fact. The criminal sanction could be up to 14 years.
Maybe my question is just moot, but does the CMA have a licensing role with doctors? If not, who does? Would there be any result to the licence of that doctor who has been sanctioned with an offence on this? What would be the CMA’s response to that doctor’s licence?
Dr. Ross: The CMA’s position is as a policy and thought leader. We are not involving directly with the licensing of professionals.
Dr. Cashin: The CMA is not involved in the licensing of physicians. That would be down to our medical colleges. That is done by provinces and territories. They would be the bodies that would look particularly at our licences. So that is not in the direct purview of the CMA, although, as Dr. Ross said, they do look to the CMA, our code of ethics and professionalism guidance to set out their laws, bylaws and their overview of positions.
Senator McBean: So there’s no response to the doctor’s licence for doing this. They might do some jail time but . . .
Dr. Ross: Not within the purview of the Canadian Medical Association.
Senator McBean: Is that concerning at all? I always think that if someone can do something, go to jail for it, come out and then continue on with no impact on their career, even though they have had such an impact on other people.
Dr. Ross: It would be difficult to say there would be no impact. Regulatory bodies look at criminal records. We’re obligated to report even charges that haven’t been completed when we do our licensing with regulatory bodies on an annual basis.
It’s hard for us to answer as the CMA, because we’re not involved directly in regulating those physicians, but we are certainly involved in reporting and being open with the college that does regulate us to ensure that we’ve included all information.
The Deputy Chair: The CMA is more like an advocacy organization for the profession. It’s the College of Physicians and Surgeons, and associated technical colleges that would do the professional sanctions element, correct? Okay, thank you.
[Translation]
Senator Carignan: I don’t know if you’ll be able to answer my question or whether you’ve looked into the matter, but the age of consent to care in Quebec is 14 years. In Eastern Canada, the term used is “mature minors.” Isn’t there some constitutionality issue at play? Aren’t we entering the realm of provincial jurisdiction in matters of consent to care? We know that people under 18 but over 14 years of age can consent to care without even consulting their parents. Do you see that as an issue? Have you considered that aspect? Has this constitutionality issue been brought to your attention?
[English]
Dr. Ross: I’m going to clarify the question if I can. Are you asking, specifically, why age 18 in this bill and age 14 in other jurisdictions? That is the question I heard, senator; is that right?
[Translation]
Senator Carignan: We have a problem, because a child 14 years old or more can consent to care, but not that kind of care, because it would be a crime for the person who — Isn’t there a constitutional and jurisdictional conflict involved?
[English]
Dr. Ross: I think that there are alternatives for limiting conception that exist for discussion.
Senator Carignan: Yes, I got it.
[Translation]
Apart from alternative solutions in this situation, if the young person wants to consent to care that results in sterilization for reasons related to cancer or for other reasons, wouldn’t a jurisdictional conflict exist with provincial laws?
[English]
Dr. Ross: [Technical difficulties] aspect. The age of 18, which is included in this bill, seems a reasonable number to us, because we can access a potpourri of alternatives up to age 18, which is more of an appropriate age to be making decisions around permanent irreversible treatment. But I don’t know that I can technically answer that question.
[Translation]
Senator Carignan: Madam Deputy Chair, are there any plans to call on any constitutional expert witnesses during consideration of this bill?
[English]
The Deputy Chair: I’m not sure we have constitutional experts on the list, but we certainly have the Canadian Bar Association and defence counsel who act for physicians, so we can make sure that we have the necessary expertise on that.
Senator Clement: Thank you to the witnesses and for your careers.
I’d like to follow up on the answers you gave to Senator McBean around the CMA being thought leaders as opposed regulating bodies. Dr. Cashin, you used words like “hidden curriculum.” I’m not sure what you mean by that; I’d like you to expand on that. You also said that many physicians do not even realize this is an issue. I’d like you to expand on that, with this in mind: Do you know what kinds of cultural sensitivity training they get in med schools? Is there such a thing? When does that happen? Does it happen in med school? Does it happen throughout their careers? Can you comment on that.
Also, which provinces and colleges do better than others? You probably have that kind of an overview.
Dr. Cashin: In terms of the curriculum around ethics, professionalism and consent issues, medical learners are taught at all stages of their learning. I teach Indigenous health, and part of my teaching is to medical students. I also teach residents. You get that throughout your training. Every medical learner would have that basic understanding and that teaching. As an example, I teach first- and second-year medical students mostly, and part of my teaching is about the medical harms, professionalism and ethics. So that’s all covered. They get that at multiple stages as they move through their training.
Senator Clement: That seems wonderful. Is everybody as wonderful across the country?
Dr. Cashin: Thank you so much for saying that. I know a lot of physicians doing this work in this space, and yes, I would say that it’s being very well done.
You mentioned the “hidden curriculum.” I said those words. I think that speaks to the culture of medicine in a lot of cases. For example, my first-year medical students I taught last week left my classroom knowing about medical harms that have happened to Indigenous patients, specifically around these issues. It is one of the topics I talk about and about consent. When they go out into practice, on the wards, in the operating rooms and clinics, and they see how things are done. Sometimes, if corners are cut or consent is not taken, they learn those things as well. There’s always the idea that we need to be very aware of how we’re setting an example for learners. They learn a lot just by observing and by being part of that system. So sometimes things are hidden there.
That’s where a lot of systemic racism comes in and why we still experience that. Yes, every medical school in Canada, I can assure you, is teaching their medical students and all learners that this is not acceptable behaviour, but then when you go out into practice, you can still see that. That still very much exists for Indigenous patients. There are so many examples. The most recent one would be Joyce Echaquan and what happened to her. So there’s something happening between the time the medical learners leave our system and go into the system, because those behaviours are continuing. That’s what needs to stop.
But this is being taught across the country.
The second part of your question was about —
Senator Clement: The Colleges of Physicians and Surgeons across the country —
Dr. Cashin: The standards of practice are set by our colleges. In my case, I’m a specialist, so it would be the Royal College of Physicians and Surgeons of Canada that set my standards of practice. They have their own guidelines around ethics and professionalism. The CMA has its own guidelines around ethics and professionalism. Those expectations are set by, in my case, the Royal College of Physicians and Surgeons of Canada. They are expectations set for every specialist across Canada, and we’re all expected to adhere to those guidelines. They’re doing incredible work right now in even looking at those guidelines and incorporating anti-racism and Indigenous health.
Senator Clement: Thank you.
Dr. Ross: I would add that the regulatory bodies across the country are incorporating anti-racism equity, diversity and inclusion in their requirements for licensure as well.
I want to highlight that the medical community does reflect society at large. While we bear responsibility within the health care system, we recognize that there is substantial work that needs to be done in society at large to highlight anti-racism and discriminatory behaviours.
Senator Boyer: I would like to talk to you about Andrew Kotaska, who has served as the Northwest Territories Medical Association president, has had years of practising medicine at the Department of Obstetrics and Gynaecology in Toronto, Manitoba and UBC and published articles on Indigenous patients and informed consent and ethics.
In July 2019, through a remote ultrasound, he diagnosed a 37-year-old Inuk woman and performed surgery to address a painful cyst on her right ovary at the Stanton Territorial Hospital in 2021. She consented to the removal of her right fallopian tube and ovary, if necessary. He removed her right fallopian tube and ovary before he also removed her left fallopian tube and ovary and said, “Let’s see if I can find a reason to take that left tube.” He left her sterile forever.
A civil suit was launched in April 2021 for $6.5 million. An official complaint was launched with the Northwest Territories Health and Social Services Authority and a hearing was held. The board of inquiry found that he violated responsibilities in the Code of Ethics and Professionalism and suspended his licence for five months. He was ordered to pay $20,000 in costs and had to complete an ethics course. He is currently working and living in B.C., and that picks up on what Senator McBean had said. I’d like you to comment on that, please.
Dr. Ross: From my perspective, I find these reports deeply disturbing and soul-crushing on many levels, but it signals that we have a long way to go. The Code of Ethics and Professionalism that the CMA has put forward and updated within the last five years is the North Star, and we need to work to raise the medical profession’s awareness, involvement and acceptability of living up to that code. This is an example where that standard was not upheld, and I think we need to do better.
Senator Boyer: Thank you.
Senator Dalphond: I think you said in some of your answers, including to one of my questions and another, that you feel you’re protected when you do surgery in the case of emergency. I think you said the law offers protection in such cases, and I think you rely on section 45 of the Criminal Code that protects individuals — including doctors, of course — from criminal responsibility if they perform with reasonable care and skill, and it’s based on the person’s state of health and circumstances. Are you aware that this bill excludes the application of section 45?
Dr. Ross: That is even more concerning. As I said, I am not a lawyer, but I can speak to the ethical standards.
Senator Dalphond: I’m a lawyer by training. I’m sorry.
Dr. Ross: I can speak to the ethical standards and the North Star that we want to establish as a medical profession. I can speak to realities that emergencies happen, and as an ethical, practising physician, we do our best to protect patients.
Senator Dalphond: I understand, but your comment that you feel protected in such cases is based on section 45 of the Criminal Code?
Dr. Ross: Yes.
Senator Dalphond: Thank you.
The Deputy Chair: Thank you for raising that. I was going to raise that at the end if it didn’t come up.
Thank you very much to our witnesses. You provided us with valuable perspectives today. Thank you for taking the time today to be here to answer our questions.
Honourable senators, we are resuming in public to continue our study of Bill S-250.
For our second panel, we’re very pleased to welcome today from the Native Women’s Association of Canada, Sarah Niman, Senior Director, Legal Services, and from the Women’s Legal Education and Action Fund, Pam Hrick, Executive Director and General Counsel.
Welcome, and thank you for joining us.
We’ll begin with opening remarks from Sarah Niman and then from Pam Hrick. The floor is yours for five minutes when you are ready. We’ll start with Ms. Niman.
Sarah Niman, Senior Director, Legal Services, Native Women’s Association of Canada: Hello and boozhoo, honourable committee members.
Thank you for inviting the Native Women’s Association of Canada, or NWAC, to speak on your study of Bill S-250. We are on unsurrendered, unceded Algonquin territory.
I also want to thank Senator Yvonne Boyer.
Thank you. You have tabled this legislation on behalf of survivors of forced and coerced sterilization.
I want to thank all the honourable senators for taking a united approach to this bill, because this human rights violation is one for which we all share collective responsibility.
I’m honoured to be here to speak on behalf of NWAC in support of Bill S-250. It’s a travesty that this bill is necessary, and it is imperative that it be enacted. This bill honours the survivors and the next generation of Indigenous children by acknowledging that those who sterilize Indigenous women by force or coercion are criminals and cogs in colonial machinery, and it’s high time that this country’s legislation reflects that.
Forced sterilization of Indigenous women is an act of genocide. The Native Women’s Association of Canada supports enacting Bill S-250, and it is long past due. NWAC does not want to impede its progress. In addition to this bill, however, NWAC calls on the Senate to consider drafting additional legislation and a national action plan, because this approach will further address the outstanding issues and concerns related to forced sterilization.
I would be remiss as NWAC’s advocate if I didn’t share our top ten issues that remain to be addressed in order for this legislation to fully align with the United Nations Declaration on the Rights of Indigenous People, or UNDRIP, and with Canada’s stated commitment to reconciliation, recognizing that those most disproportionately impacted by forced sterilization are a marginalized group.
One, survivors deserve a formal apology and acknowledgment by the Government of Canada.
Two, reparations. Healing from genocide requires financial, cultural and emotional support. This support needs to be trauma informed and led by the survivors.
Three, Indigenous women need culturally safe and trauma-informed reproductive health services in their communities.
Four, to ensure that the threshold of free, prior and informed consent can be provided, Indigenous language interpreters must be funded and be available at these health care facilities.
Five, healing. We need to develop and fund an advisory council to assist the women who have experienced forced or coerced sterilization in order to facilitate their healing.
Six, accountability. We need to help Indigenous women lead the measures to hold the medical authorities, the federal government and the provincial governments accountable.
Seven, education. We heard earlier about the importance of going beyond criminalizing these assaults by training and educating all our health care providers on Indigenous cultures, human rights, Indigenous rights and Indigenous reproductive health issues and what free, prior and informed consent means.
Eight, data collection. Develop a Canada-wide data collection system to better understand the scope of forced and coerced sterilization.
Nine, investigate. A transparent, trauma-informed, Canada-wide investigation conducted in collaboration with Indigenous people and survivors examining forced and coerced sterilization so they never happen again.
And ten, legislative amendments. In addition to those proposed through Bill S-250, NWAC believes it’s important to investigate and identify what other relevant acts need to be amended to make sure that Bill S-250 can be effective.
We raise as an example that the Canada Health Act could be amended to pass further regulations requiring provinces to update how they will address forced and coerced sterilization with the coming into force of Bill S-250.
Notably, Bill S-250 does not provide a redress mechanism. For several years, NWAC has been advocating for a system of redress to survivors of forced and coerced sterilization. We believe that the legal framework advising this is found within UNDRIP Article 8, and it paves the way for Canada to reconcile this haunting tragedy and aligns with Canada’s obligations under the United Nations Declaration on the Rights of Indigenous Peoples Act.
Putting money through redress on the table does not undo the harms — nothing can — but it signals that it is urgent to provide redress for those Canada has abused so terribly.
The Native Women’s Association of Canada remains available for further questions on these remarks, or other concerns this committee may have.
Thank you and meegwetch.
The Deputy Chair: Thank you very much.
Pam Hrick, Executive Director and General Counsel, Women’s Legal Education and Action Fund: Good afternoon. My name is Pam Hrick. I’m Executive Director and General Counsel of the Women’s Legal Education and Action Fund, or LEAF.
I’m grateful to be here with you today on the traditional and unceded territory of the Algonquin Anishinaabe people.
I also want to acknowledge the contributions of my colleagues Kat Owens and Lou Lamari for their work in preparing for this appearance today.
As many of you know, LEAF is a national charitable organization that uses litigation, law reform and public legal education to advocate for the equality of women, girls, trans and non-binary people. We have been doing this for almost 40 years.
Thank you for inviting me here today to speak about Bill S-250.
I would like to acknowledge the courage of the survivors who have spoken out, including before this and other Senate committees, to demand an end to the practice of forced and coerced sterilization.
I would like to commend Senator Boyer’s leadership in bringing forward this bill.
As this committee has heard, forced and coerced sterilization is a human rights violation and a crime disproportionately committed against Indigenous women. Black women, disabled women, poor women and intersex children have also been targeted for forced and coerced sterilization in Canada. This practice is a profound violation of gender equality and bodily integrity grounded in racism, colonization, ableism and sexism.
The Women’s Legal Education and Action Fund support the introduction of a Criminal Code offence that specifically targets forced sterilization and coerced sterilization. We do not do this lightly. As members of this committee have observed, the criminal legal system has both failed to protect and caused harm to members of marginalized communities in Canada, in particular, Indigenous, racialized and disabled women.
The offence provisions in this bill, however, are most likely to apply to health care providers who hold positions of power, privilege and trust relative to their patients. The introduction of a specific offence will leave no doubt as to the illegality of this practice. It will play an important deterrent and communicative role for medical professionals, regulatory bodies and professional associations.
It is important that any offence apply in narrow and targeted circumstances. The definition of sterilization procedure included in this bill encompasses acts for the primary purpose of surgically or permanently preventing conception. It does not encompass acts that result in the prevention of conception but have a different primary purpose, such as treating medical conditions like cancer, uterine fibroids or endometriosis.
In addition, as Senator Boyer has noted in her testimony, many people may want to undergo sterilization procedures. This bill allows them to ask for these procedures and, critically, to consent to undergo them.
We would, however, recommend amending the bill to remove the bar on consent for persons under the age of 18. This would be in line with the standard approach to consent to health care procedures for minors, which focuses on whether they can understand the nature and purpose of treatment and the reasonably foreseeable consequences of it. Legislating a minimum age for consent in these circumstances, we believe, would open the door to age restrictions on consent to sexual and reproductive health care procedures, such as abortion.
This bill is an important starting point for prevention and accountability. However, as Ms. Niman has said in her opening statement, all levels of government, as well as non-government actors in the health care and education sectors, must take steps to end forced and coerced sterilization. There needs to be further research and disaggregated data on this practice. There needs to be a framework for reparations. The Government of Canada must issue a formal apology to survivors of forced and coerced sterilization, including survivors like Ms. Rabbit, who previously spoke before this committee.
Also, we must do more to combat systemic discrimination in health care and ensure equitable access to that care. This will include increasing representation within health care, including through Indigenous and community-based midwifery. It will require providing anti-racist and cultural competency training for all health care officials and providing properly trained medical interpreters. It will require providing equitable access to comprehensive and culturally safe education on sexual and reproductive health.
Thank you for your time. I look forward to your questions.
The Deputy Chair: Thank you very much. I appreciate that from both of you.
Senator Boyer: My question is for you, Ms. Niman. The Native Women’s Association of Canada has continued to be a strong advocate for the reproductive rights of Indigenous women, girls, two-spirit, transgender and gender-diverse peoples in Canada.
In your opinion, how do you envision the implementation of Bill S-250 to contribute to the empowerment and autonomy of Indigenous women and girls in making decisions about their own reproductive health?
Ms. Niman: Thank you for your question. The Native Women’s Association of Canada has heard from the Indigenous women and gender-diverse folks we have consulted with that they already understand they have the right to their own bodily autonomy, but what Bill S-250 does is codify it and ensure there is a criminal penal sanction for those who would violate that right. As my submission summarized, this approach needs to happen in concert with a multifaceted approach to dealing with the systemic discrimination that was the breeding ground for forced and coerced sterilization.
Senator Boyer: Thank you.
Senator Dalphond: Welcome again. When I walked in, I said I think I recognize you; you’ve been here a few times before. I learned it has been five times before. We have a group of the best before us. Thank you very much for appearing again. We always appreciate it.
My question is to follow up, Ms. Hrick, on the age. You said your group also speaks for trans people. Is there a problem there? I think Senator Simons raised this issue yesterday or at a previous meeting, that the way sterilization procedures are defined, it could target somebody who wants to have a sex change, including transforming from a woman to a man or something else, and that will imply some form of sterilization. Is that a concern for you at your organization?
I have two questions, the age limit, which you have started to explain, and people who are not yet 18 and would like to have surgery in the process of gender transformation, for example.
Ms. Hrick: I’ll take the questions in order. With respect to the age limit, what we would say is that this is a matter of sexual and reproductive health care. In terms of the approach, we would want to be consistent with the general delivery of that but have a very targeted approach to the harm that is really underlying what this bill is trying to address.
In the common law generally, you would operate under the mature minor doctrine, which governs consent to medical care. The focus would be on whether the minor is capable of consenting. We don’t think there would be a broad swath of folks under 18 who would seek a sterilization procedure for the primary purpose — and I want to focus on that language, which I think is a good thing about the way this legislation is drafted — the primary purpose of permanently preventing conception. Those are some of the rationale for wanting to suggest removing the age limit and because we wouldn’t really favour setting the precedent that might allow for age limits to be set in criminal law for other health care matters as well.
For the second part of your question, with respect to what I think can more accurately be called gender-affirming care, this is something that has come up for us in consideration of our position on this bill as well. What we appreciate about the bill again is that it is quite targeted if we go back to that primary purpose being the prevention of conception.
For gender-affirming care procedures, there’s a broad swath of them that would not come anywhere near that particular definition, where there would be, for minors in particular, the very rare circumstances where such an intervention would take place, I also think that it would be clear. The purpose of this bill is not meant to prevent gender-affirming care, and gender-affirming care is meant for the primary purpose of affirming one’s gender rather than preventing conception. That is what my response would be.
Senator Dalphond: That’s why you said you favour a very narrow interpretation based on the goal of the bill?
Ms. Hrick: Correct.
Senator Dalphond: Thank you.
Senator Prosper: Thank you to the witnesses for providing your testimony. I have a question for Ms. Niman. It’s along the lines of informed consent.
I understand there are a number of considerations in that regard, when we’re talking about marginalized groups and Indigenous women. You talked about interpreters, for example. I’m wondering, what other considerations do you find relevant when we’re discussing the subject of informed consent?
Ms. Niman: Thank you for the opportunity to speak on this. The Native Women’s Association of Canada has done significant amounts of research, especially in the field of health care, about what informed consent looks like, given the rampant discrimination against Indigenous women within health care. You’ve asked for examples of what that might look like. In the situation of future fertility choices, that might look like having a conversation well before the anticipated date of delivery that says these are the options that you might want to consider. This is all the information that you need to know. Now, go and consult with your family, with knowledge keepers, with elders, and when you’re ready to make a voluntary request for any of these services, you can come back to us and ask.
It is contextual, of course. The Native Women’s Association of Canada favours not just free, prior and informed consent but free, prior and informed choice. So in different situations, acknowledging that not everybody accesses health care the same way when under the thumb of systemic discrimination, where there is an opportunity for advanced free, prior and informed discussion to inform choice, NWAC presupposes that those consent thresholds need to be grounded in the ethic standard but need to be case-specific and conscious of the marginalization that Indigenous women face when accessing health care.
Senator Prosper: Thank you.
[Translation]
Senator Carignan: I’m looking at the definition of sterilization procedure. In French, it only seems directed at girls, but in English, it could include boys. Paragraph 268.1(1)(b) says, “any other act performed on a person.”
Does the bill apply to girls only, or is it meant to include boys as well? No mention of boys is made at all, but the English version could be interpreted to include boys. I’d like to hear from you on that matter.
[English]
Ms. Niman: Thank you for the question.
One of NWAC’s recommended amendments is to add to the preamble to clarify that although this is meant to redress the harms of forced sterilization, to add a qualifier as to why that has happened and what some of the colonial impacts have been, specifically for Indigenous women.
I think what you’re asking is in terms of interpreting the difference between English and French. I would say that access to health care and to free, prior and informed consent is a human right regardless of gender and that it should be freely accessed by anybody, regardless of their intersectional identity as an Indigenous man, woman or gender-diverse person.
Ms. Hrick: I would agree.
[Translation]
Senator Carignan: Usually, for bills or for offences of a sexual or intimate nature, provisions are made to protect the victim, such as exclusion orders, publication bans, refusal to allow a self-representing accused cross-examine the victim... Different orders can be applied to protect the victim. Do you think that these orders should apply to the new offence as well, so that courts have the necessary jurisdiction to protect the person’s identity and integrity?
[English]
Ms. Niman: The Native Women’s Association of Canada’s opinion is that this bill doesn’t need to be amended to reflect the hypothetical you’re presenting, because there already exists a legislative framework for navigating that specific issue.
[Translation]
Senator Carignan: However, it is not specifically provided. This new section doesn’t add to the list of protection order jurisdictions. In other words, should we add a specific section, section 268.1, to the Criminal Code, so that judges have the required jurisdiction to order such protections?
[English]
Ms. Niman: In the interest of advancing the bill through this legislative process, NWAC doesn’t propose that specific amendment if it were to delay its enactment. In terms of protecting the victims in a situation you’re proposing, I suggest that might be putting the horse before the cart and it would be prudent to see whether this bill does, in fact, help protect victims of forced and coerced sterilization. As my predecessor at NWAC presented to the committee in 2019, murder is illegal. If it’s not stopped, there is an onslaught of murdered Indigenous women.
Where the primary focus of this bill is to criminalize conduct that heretofore has been allowed in policy and law, the primary focus is to make sure there’s a penal sanction for those who would commit this act of genocide.
[Translation]
Senator Carignan: I’m not sure that my question was properly understood. The goal is to offer victims greater protection by protecting their identity and blocking direct contact between the accused person and the victim for the victim’s protection. Do you have any objection to that? Maybe I misunderstood.
[English]
Ms. Niman: Thank you. Your rephrasing that has brought more clarity, and I think I’m on the same page as you. Thank you for restating.
No, NWAC would not object to that.
The Deputy Chair: I have a couple of questions for Ms. Niman from the Native Women’s Association of Canada.
I’d like to discuss your recommendation about the need to clarify what is required for a physician when obtaining consent for a sterilization procedure. That proposal aims to ensure that patients are fully informed of their options and the potential implications of such procedures so as to allow for clear understanding and truly informed consent.
Can you provide us more details on how you would see the integration of that recommendation into the text of Bill S-250? What clarifications do you suggest so that the obligations of physicians regarding consent are explicitly defined in the law in a way that strengthens patient protection but also ensures legal security for practitioners?
Ms. Niman: Thank you.
In answering your question, I’m still thinking of what the witnesses on the panel before us said, which was that many physicians don’t realize this is a problem. In terms of an approach, one of the suggestions we would make is that there be a collaboration with provincial bodies and licensing authorities to ensure there is a clear threshold on what free, prior and informed consent looks like and there should be a positive obligation for physicians to demonstrate that they understand what that threshold is as a qualifier for maintaining their licence. I know that’s a high bar, but it’s not a high bar when you consider what the repercussions are.
In terms of clarifying that threshold, across Canada, we are continuing to clarify what consent thresholds are. In this situation, I think having a conversation before the person gives birth, where that’s available, where there’s an ongoing relationship between a care provider and a patient in obstetrics — having that conversation beforehand, presenting options, whether that comes from the patient asking or the physician introducing them, and giving space for the patient to then meaningfully consider those and then come back and, in demonstrating their autonomy, say what their choice is — that’s the kind of threshold that NWAC is looking for.
The Deputy Chair: Within Bill S-250, there are two different proposed offence sections. One is subsection 268.1(2), about performing the sterilization procedure, and in this one it says that person would be potentially “guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years.” New subsection 268.1(7) is about coercion. That’s a difference offence, but it still has the same sentencing provisions.
What’s your comment about the feasibility of having those two proposed subsections split like that? Would you think it would be a better scenario to have them in the same proposed subsection but defined like that? What is your impression of the potential sanction part of that?
Ms. Niman: In terms of the decision to bifurcate those two proposed subsections — and I think throughout the discussions in this committee — the phrase has been forced or coerced sterilization, recognizing those are distinct approaches. I think the legislation, as drafted, reflects the possibility for there to be a spectrum of what coercion and consent look like, without having to define one from the other, which allows for flexibility on a case-by-case basis.
Some of the examples in Senator Boyer’s report, for example, would reach the level of non-consent but don’t quite reach the level as prescribed here. They’re not unconscious, for example, or they don’t have the mental capacity. Where there could be an argument on one side or the other, this will allow those enforcing and affirming their right not to be forcibly or coercively sterilized to have that flexibility under the bifurcation.
In terms of the penalty, the position of NWAC, is that it is relatively preliminary to anticipate what the penalty would look like because nobody has ever been charged with these offences before. Therefore, I don’t want to comment on the appropriateness of sentencing a doctor for doing this. Our concern has been more about the appropriateness of redress and reparations.
Senator Klyne: Welcome to our quests.
It’s puzzling to understand how this type of assault — forced and coerced sterilization — can occur, and it begs the question. When you think about the bill’s objectives and the aims and criminality that are attached to this, you would think that would serve as a deterrent. As well, you would think that protocol in surgery should be an assurance of compliance — that the hospital and doctor will comply. Ms. Niman touched on this in terms of getting the appropriate consultation and/or assistance that should be obtained whenever possible, but also that prior, informed consent that should come through medical staff carefully explaining the surgery to the patient before they have it, including why the patient is having it, the risks and what to expect afterwards. The patient should also be advised of any viable alternatives for the patient’s consideration. Then and only then should the patient be asked to sign an informed consent form.
How can the legal community collaborate with health care professionals, policy-makers and civil society organizations to ensure this bill reflects a comprehensive and rights-based approach to preventing this criminality and also ensure justice?
Ms. Hrick: There are, obviously, standards in law and standards in practice that should reflect what you have just set out as the ideal of what practitioners should be doing: explaining the procedure they’re proposing and the options that are available to a patient and ensuring that all of those steps are taken to reflect prior and informed consent.
Regarding the collaboration between legal professionals, civil society organizations and physicians, I think there will certainly be a role to play if this bill is passed to ensure knowledge, compliance and adoption of appropriate standards as well as guidance from medical associations to those they govern — the ones providing health care services — to ensure compliance with the standards of consent that are set out in this bill. It is certainly our hope and expectation that having a very particular, well defined, narrow and clear definition of what is and is not permitted when it comes to sterilization and how it must be carried out will provide a deterrent effect. It will deter those who are able to provide sterilization procedures from doing so unless those specific requirements have been met. I think there is a real deterrent effort and consequence here that would result from the passage of this bill.
Senator Klyne: Thank you.
Ms. Niman: I would see your call for collaboration and raise you — the importance of making sure that collaboration also includes Indigenous communities. The thresholds for consent have not worked in their favour up until now, so the solution moving forward must consider that Indigenous legal orders and Indigenous communities have different concepts of what consent is. In order for this genocide to stop — at least through the avenue of forced sterilization — their collaboration also needs to be prioritized.
Senator Clement: You two are always great witnesses, and I echo Senator Dalphond’s comments. We welcome your repeated visits here. It’s always helpful.
I want to ask you about the disconnect between this bill and what Canadian society understands. My nieces and nephews have taken an interest in Senate work. I love it. Thank you to them. When I told them about this bill, they said, “I don’t understand. This is happening?” They’re shocked as young people.
Also, I’m not sure what you watched yesterday in terms of our meeting, but we got a letter from the RCMP, saying they weren’t going to appear here as witnesses. The letter states that:
Allegations of forced sterilization are relatively rare in Canada’s overall criminal landscape. In 2019, the House of Commons Standing Committee on Health was informed that no allegations of forced sterilizations were found to have been reported to the RCMP.
Maybe that’s correct, but is it rare? What do we know? You both mentioned data collection in your opening statements. What would that look like? How should that be done? Is that the answer to this disconnect? Because we’ve heard evidence and seen the research of Senator Boyer that speaks to the contrary — that this is not as rare as the RCMP is saying.
Ms. Hrick: I’ll start by stating what I think is obvious, which is the problem of measuring the prevalence of this sort of conduct by reports by Indigenous women — who are disproportionately impacted — to the RCMP, given the RCMP’s role and history in the existence of systemic racism. I think we would all agree that it is not an accurate measure of the prevalence of this practice.
I will defer to Ms. Niman to speak about the way data collection could proceed to give a true understanding of the prevalence for this, given that it is one of the recommendations, of course, that she put forward.
Ms. Niman: Thank you. Data collection is one element. It would certainly need to be Indigenous led and survivor led to inform a truly trauma-informed practice. As we’ve heard through Senator Boyer’s work before this committee, revisiting these issues is incredibly traumatic, and it’s not in NWAC’s interest to put anybody through more harm than they’ve already survived.
I’m not surprised that many Canadians haven’t heard about this because that means colonialism is working. As the researcher Karen Stote said, the reason Indigenous women are forcibly sterilized more than non-Indigenous is because then there will be fewer of them. There will be fewer of them to have land-based rights that the government is obligated to affirm and recognize.
It’s no wonder that people have not heard about it when it has not directly affected them. Then there’s the cloud of shame over those survivors who have been hesitant to share their stories because they take on a personal responsibility for it as a mechanism of ongoing genocide. It’s working. But by talking about these stories, tabling this legislation, holding Canada accountable and providing redress, apologies and reparations, we disseminate the effect of those genocidal activities.
Senator Simons: I wanted to say, Ms. Niman, that I think the ideas you outlined in your opening presentation are fantastic and perhaps even more effective than criminal sanction. Some of the stuff you’re talking about is absolutely common sense — to have interpreters that wouldn’t just be for speakers of Dene and Cree but for speakers of Urdu. There are so many women who are affected by the inability to understand what they’re consenting to in a variety of situations because of language barriers.
As well, I thought what you had to say about education, language interpretation and other forms of access — because, really, to correct this problem, sending someone to jail is probably less effective than a more holistic look at why our medical system is not delivering services equally to people — men and women — on the basis of where they stand in the intersection of intersectionality.
Having said that, I want to ask my question to Ms. Hrick. One thing we haven’t talked about today, although we talked about it yesterday, is the final clause of the bill, which deals with coercion. It says that anybody who coerces someone to have sterilization could be subject to criminal sanction. When speaking with justice department officials yesterday, I said that could be a husband, a wife, a mother-in-law, a social worker, a school guidance counsellor — it could be all kinds of people. Do you have any concerns about the broadness of that, especially because the bill doesn’t define coercion?
Ms. Hrick: I’m just bringing up the language right in front of me, so I have it as well. I take the point, and I think there is a need to ensure that, whatever this bill looks like in its final form, it is carefully tailored and has a narrow focus and a narrow scope.
In yesterday’s exchange, I understand you were asking questions in relation gender-affirming care as well. I wanted to take the opportunity to encourage the committee to consider hearing from folks who are leaders within trans organizations that are specifically trans-led as well.
Senator Simons: I would ask for that as well.
Ms. Hrick: Wonderful.
Senator Simons: This is where I would like to end, then. You’ve said that you would read the bill very narrowly, only dealing with cases where the single primary goal is sterilization for the purpose of contraception. My concern is that it says something fuzzy about that, but it also says, as sort of the primary foundation, that section 45 doesn’t apply, that every single sterilization is illegal, until proven otherwise. I’m wondering if that doesn’t strip doctors of the traditional protections that they have had and if it might not create a chilling effect. The Women’s Legal Education Action Fund has fought for generations for women to have access to reproductive care, including right to tubal ligation. In my mother’s generation, she needed my father’s permission to have a tubal ligation. I’m worried about a chilling effect where doctors are going to say: “You know what? This language is murky enough that I’m not going to offer this service to anybody, because I don’t want to accidentally get caught up in criminal sanctions for doing my professional job.”
Ms. Hrick: I would go back to the comments of Dr. Ross and Dr. Cashin earlier, although understanding the limitations that they put themselves on their own comments here about their comfort with the language that is included here as well.
I think what we are concerned to ensure is that any law that would criminalize a sterilization that is forced or coerced, again, that primary-purpose language being important, that it is clear also that there are not prohibitions, for example, and chilling effects. I agree with not having chilling effects on the ability of a physician to discuss with the patient a full suite of options available to them.
Senator Simons: We worried about that too.
Ms. Hrick: If there is clarifying language that would help ensure that that is the case, while also getting at the heart of the significant harms that have been done to Indigenous women, in particular, by this practice over the years, that would be, I suspect, welcomed by the physicians and health care providers, who are doing this work on a daily basis.
I would also say that we would want to ensure that there is clarity in the steps that can be taken to get to the point of a fully consensual legal proceeding.
Senator Simons: I think the steps in 5 and 6 are good. I just worry about the bread on either side of the sandwich.
The Deputy Chair: Thank you very much again to our witnesses for taking the time to be with us today and to answer our questions. If there are no other questions or matters that members around the table wish to raise, then thank you, senators.
(The committee adjourned.)