THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, September 24, 2025
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:15 p.m. [ET] to Bill S-228, An Act to amend the Criminal Code (sterilization procedures).
Senator David M. Arnot (Chair) in the chair.
[English]
The Chair: Good evening, honourable senators. I declare open this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. My name is David Arnot; I’m a senator from Saskatchewan and chair of this committee. I invite my colleagues to introduce themselves.
Senator Batters: Senator Denise Batters, also from Saskatchewan, home of the 10-3 Saskatchewan Roughriders.
[Translation]
Senator Miville-Dechêne: Julie Miville-Dechêne from Quebec.
[English]
Senator Tannas: Scott Tannas, from Alberta.
[Translation]
Senator Oudar: Manuelle Oudar from Quebec.
[English]
Senator Prosper: Paul Prosper from Nova Scotia, Mi’kma’ki territory.
Senator Boyer: Senator Yvonne Boyer replacing Senator Dhillon.
Senator K. Wells: Kristopher Wells, from Alberta and Treaty 6 territory.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
[Translation]
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Pate: Kim Pate, and I live here on the unceded, unsurrendered and unreturned territory of the Algonquin Anishinaabeg.
[Translation]
Senator Saint-Germain: Raymonde Saint-Germain from Quebec.
[English]
The Chair: Before we begin, I would ask all the members and other in-person participants to consult the cards on the table for guidelines to prevent audio feedback incidents.
Please ensure that your earpiece is away from all microphones at all times. Do not touch the microphone. It will be turned on and off by the console operator. Please avoid handling your earpiece while your microphone is on. You may either keep it on your ear or place it on the designated sticker. Thank you for your cooperation.
Honourable senators, we’re meeting to begin the study of Bill S-228, An Act to amend the Criminal Code (sterilization procedures). In our first panel, we’re pleased to welcome the sponsor of the bill, Senator Yvonne Boyer. I want to say that our paths crossed in Saskatchewan many years ago. I know that Senator Boyer is a champion on these issues. She’s been working diligently on them since 2017. She has a compelling story. She’s a Métis woman, a nurse, a researcher and a lawyer. I believe the Senate is fortunate to have the benefit of her expertise, experience and leadership on these issues.
Senator Boyer, you have seven minutes or so to give an introductory statement. Then we’ll move into the questions.
Hon. Yvonne Boyer, sponsor of the bill, Senate of Canada: Thank you, Senator Arnot. I would like to thank you all for the opportunity to be here today, and thank you to the survivors as well.
Honourable senators, I wish to begin by acknowledging that we are gathered on the unceded, unsurrendered territory of the Algonquin Anishinaabe Nation. I thank them for their guardianship of this land.
I am here to speak on Bill S-228, An Act to amend the Criminal Code (sterilization procedures). Bill S-228 criminalizes the act of forcing or coercing a person to become sterilized without consent.
Bill S-228 is identical to Bill S-250 as amended and as it stood when it passed third reading in the Senate in October 2024. The drafting of the bill that sits in front of you is the result of careful and deliberate study by this very committee.
In the previous Parliament, after hearing from my colleagues on the Legal and Constitutional Affairs Committee, departmental experts, survivors, medical associations, Indigenous midwives and legal specialists, it was clear that both senators and witnesses had concerns about the broad drafting of the original version of Bill S-250 and the potential for unintended consequences.
After hearing these concerns, I consulted with the Minister of Justice and his department to develop the amendment that significantly simplified the bill while maintaining the core goal, to make it explicitly clear in the Criminal Code that sterilizing someone without consent is aggravated assault under subsection 268(1).
This amendment was unanimously adopted by this committee on September 19, 2024.
The amendment reduced the bill from 55 to 14 lines, removing complexity and eliminating potential unintended consequences. The bill targets circumstances such as those reported in the Kotaska case, where Dr. Kotaska, while operating on a 37-year-old Inuk woman, said, “Let’s see if I can find a reason to take the other tube.” And indeed he did, and this high-handed decision left her sterile.
These are the circumstances and abuses of power that this bill targets. This bill is not aimed at inadvertent medical complications, recognized surgical risks or procedures voluntarily requested by patients. Its sole purpose is to ensure that intentional sterilizations carried out without valid consent are unmistakably criminal.
Bill S-228 is the very same text that Bill S-250 was in October 2024. I am reintroducing it in this Forty-fifth Parliament.
The legislative mechanism is precise. Subsection 268(1) of the Criminal Code already defines aggravated assault as wounding, maiming, disfiguring or endangering the life of the complainant. Bill S-228 inserts a “for greater certainty” clause, which clearly brings Bill S-228 into the aggravated assault provisions in section 268 of the Criminal Code. The phrase “for greater certainty” in legal documents is used to clarify and emphasize specific points to deflate the possibility of any ambiguities or misunderstandings about the application of the interpretation of a law.
Subsection 268(1) of the Criminal Code, which Bill S-228 seeks to amend, establishes the offence of aggravated assault. This offence includes acts that wound, maim, disfigure or endanger life. Bill S-228 adds a new provision stating, for greater certainty, that a sterilization procedure constitutes wounding or maiming for the purposes of aggravated assault. The bill also defines a sterilization procedure as any intervention that permanently prevents reproduction, regardless of whether there is a potential to reverse the procedure.
Bill S-228 does not create a new consent framework. Instead, by expressly tying sterilization procedures to aggravated assault under section 268, it ensures that the existing consent rules in subsection 265(3) apply. Those rules state that consent is not valid if obtained through force, threats, fraud, duress or the exercise of authority. In other words, the bill reinforces that sterilization without free and informed consent is an aggravated assault and that all the Criminal Code’s general consent protections already in place govern these cases.
Bill S-228 affirms this well-established framework for consent in the specific context of sterilization given its irreversible consequences.
Most importantly, this bill is clear that medical providers who sterilize someone during an emergency surgery are protected by section 45.
Section 45 reads:
Every one is protected from criminal responsibility for performing a surgical operation on any person for the benefit of that person if
(a) the operation is performed with reasonable care and skill; and
(b) it is reasonable to perform the operation, having regard to the state of health of the person at the time the operation is performed and to all the circumstances of the case.
Reproductive autonomy is also preserved. Those who voluntarily seek sterilization or gender-affirming care remain entirely unaffected. This bill only targets those who abuse and sterilize without consent or with coerced consent.
Colleagues, this committee’s own study demonstrated why this clarity is necessary. Despite existing assault provisions found in section 268, no prosecutions have ever been brought forward for forced sterilization. Survivors told you — often at great personal cost — that the absence of an explicit prohibition has enabled impunity, as did national and international bodies, including the Senate Standing Committee on Human Rights in its report The Scars that We Carry: Forced and Coerced Sterilization of Persons in Canada —Part II. Its first recommendation was to criminalize the act of forced and coerced sterilization. Recommendation 1 reads “That legislation be introduced to add a specific offence to the Criminal Code prohibiting forced and coerced sterilization.”
This bill is before you because after more than seven years of study and testimony, the issue has not gone away. Survivors such as Nicole Rabbit and many others told this committee that forced and coerced sterilization continues and that action is urgently needed. Their collective voices led to the introduction of Bill S-250. Bill S-228 carries that work forward. The evidence is on the record. The drafting has been refined with input from the Department of Justice. The Senate has already endorsed this bill unanimously.
Our task now is to finish what we started. Survivors have waited long enough. Every day without this bill risks another violation of someone’s reproductive autonomy.
My goal, which is one I know we all share, is to do everything in my power to make sure not one more person is sterilized against their will in Canada. That was the intention of this bill from the very start. I believe that this bill clearly outlines the path ahead to put an end to this horrific practice.
By reporting Bill S-228 quickly and without amendment, this committee can honour the survivors’ voices, respect the work already completed and ensure that Canada’s criminal law explicitly prohibits this heinous practice.
All my relations. Meegwetch, thank you.
The Chair: Thank you, Senator Boyer. I’ll now go to questions, starting with our deputy chair.
Senator Batters: Thank you for being here, Senator Boyer, and for noting in your opening remarks that this bill is the exact same one that we last dealt with at this committee, so it reflects those amendments that you provided. That helps us to know exactly what we’re dealing with here. Thank you.
You’ve previously noted the support provided by the prior justice minister, as well as his office and department, to you on this bill. You noted they provided help with the significant amendments that resulted in the form of the bill being significantly pared down as it does now stand. Have you had discussions with the current Minister of Justice, Sean Fraser, and found out whether the current federal government supports this bill and, if so, what they potentially plan to do to help it pass?
Senator Boyer: My office did contact Minister Fraser’s office about this, and we didn’t receive any real feedback other than, “Go ahead. That’s fine.” There were no changes to it or anything else other than that, but we did have conversations.
Senator Batters: So someone from his office indicated to go ahead, but there was no indication as to whether there would be an attempt in the House of Commons to try to have it go through relatively quickly? Because, of course, it died on the Order Paper. We passed it through this committee, and it passed the Senate, but then it died on the Order Paper when the government was prorogued and then Parliament dissolved.
Senator Boyer: I believe it had support from all parties then and that it still has support.
Senator Batters: In your recent speech, you referred to the case of Dr. Andrew Kotaska, saying this bill could have a deterrent effect and could have perhaps prevented such an act. I wonder if you could explain how legally Bill S-228 would have changed the outcome of that case, given the RCMP decided not to pursue charges despite the existing relevant provisions of the Criminal Code.
Senator Boyer: Thank you for that question. The Survivors Circle for Reproductive Justice has been in place since January 2023, and it was put together by myself and another lawyer to allow the survivors to speak with one voice.
They’ve become a very strong organization, and we’ve discussed this bill and what sort of implementation and education plans would be in place when this bill becomes law. The fact that this bill would become law in Canada and be implemented with an understanding with survivors would certainly prevent something like the Kotaska case from arising again.
I believe that it would be a deterrent in that there would be a sober second thought. When he said, “Let me see if I can find a reason to take the other tube,” perhaps he would have thought, “There is a Criminal Code that may affect me if I do that.” I think the deterrent factor will be a strong point with respect to this bill when it becomes law.
Senator Batters: Considering that the penalties already provided for aggravated assault are significant, what would make a physician think twice under your bill Bill S-228 and those provisions as compared to the current aggravated assault regime?
Senator Boyer: Because this specifically puts it in as aggravated assault. It puts the act of sterilization without consent into the Criminal Code. It labels it specifically, and that is going to be a deterrent. It hasn’t been before.
There are a lot of reasons throughout provincial law and through medical associations that consent has to be free, informed and prior, but when it isn’t, it needs to be clarified. I think it’s valid.
Senator Batters: The naming of it as sterilization, that’s what you’re saying you think is the deterrent factor. It’s actually naming it that rather than just having it included within the scope of aggravated assault.
Senator Boyer: Correct, yes.
Senator Batters: Could the real problem also lie more in the law enforcement part of this, and the possible reluctance of police forces to act on these kinds of cases, rather than the current wording of the Criminal Code provision?
Senator Boyer: Thank you for bringing that up, because that has been an issue, and I’ll tell you why. There was a point a few years ago when the RCMP Commissioner said that she was really going to crack down on the issue of forced sterilizations because it was very much coming to the forefront. The RCMP put a call out for Indigenous women or any other people to contact them if they had been sterilized. Because of the distrust between Indigenous People and the criminal justice system, many people were reluctant to call, but some did. The next thing they knew, they had the police battering at their door, trying to get information out of them, and then they’re phoning me and saying, “What do I do? The police are at the door, and they’re insisting I give them information. They’re terrifying me.”
There needs to be some work done there. That’s why I’m glad I was able to mention the Survivors Circle for Reproductive Justice. That’s a group that can work with the police to have positive outcomes rather than terror.
Senator Batters: Just to briefly finish off, you mentioned the RCMP. Who was it from the RCMP that said that?
Senator Boyer: That said what?
Senator Batters: You mentioned that someone from the RCMP was calling for women to come forward.
Senator Boyer: It was the commissioner. The commissioner at the time had put a call out, and that’s public information. She put a call out for women who had been sterilized to contact the RCMP, and for anyone who did, it certainly wasn’t followed up on. I think the whole issue was dropped because it turned out to be such a fiasco.
[Translation]
Senator Miville-Dechêne: Good afternoon, Senator Boyer.
I received — and you probably did, too — the brief of the First Nations of Quebec and Labrador Health and Social Services Commission sent to the committee on September 22. It is a fairly long report that includes seven recommendations. I’d like to hear your thoughts on two of them.
This report was prepared by Indigenous people in Quebec. It says that in this bill, perhaps in the preamble, there should absolutely be language around the importance of cultural safety for Indigenous people. I know the bill has been shortened considerably. I am aware of that. However, it is one point of view. I would like to know what you have to say about that. The first page of the report states, “Issues to be considered in Bill S-228”. It’s the first point, “Consideration of Indigenous realities”. Do you think the bill would be improved by adding the issue of cultural safety for Indigenous people? It is said that cultural identities must be respected. You know these issues better than I do. Do you think that’s missing from the bill, as indicated in this report?
[English]
Senator Boyer: If I could have rewritten the whole bill to make it culturally appropriate, I certainly would have, but it wouldn’t jibe with the Criminal Code.
I like the report. I’ve worked with these women since Suzy Basile started doing her work, and I have much respect for it.
As far as putting that into the preamble, I think because the preamble plays such a limited role, especially when it’s amending another act, if we started putting things into the preamble, it would not actually solve the problem. After the bill is passed, we need to take a really good look at it with the survivors, who are the people who have been affected by this. There are between 200 and 300 survivors right now who are probably watching and are very close to these issues. They’re the ones who can direct it.
Us putting this into the preamble is not going to solve the problem, but afterward, the survivors can help do that. They can help with the cultural safety with respect to what the doctors need to know, what the medical institutions need to know and what the hospitals need to know in their consent forms.
With respect to fixing the preamble, it’s good to hear this, see this and get this out in front, but we need some positive action from survivors, who know how they feel and what must be done to help them.
[Translation]
Senator Miville-Dechêne: Thank you.
Another thing surprised me in this report. The bill is very short. It specifies that clipping, tying and cauterizing are the three acts defined as sterilization procedures. However, the report states that cauterizing — burning part of an organ — has not been a standard practice in the medical community for several years. I am surprised that it is included in the Criminal Code, which may not be up to date. Is it a problem to have a practice that is no longer used in a definition of a bill?
[English]
Senator Boyer: I believe that the wording of subclause 1(2) is:
. . . the severing, clipping, tying or cauterizing, in whole or in part, of the Fallopian tubes, ovaries or uterus of a person or any other procedure performed on a person that results in the permanent prevention of reproduction . . .
That covers everything. That will cover every type of sterilization, including chemical castration, on any person, a man or a woman — any human. I don’t think that amending it because we think that “severing” is out of date would do any good. I think it’s caught well enough by the other wording in that section.
Senator Prosper: Thank you, Senator Boyer, for your advocacy and your commitment to seeing this issue through with the extensive history there. It really struck me when you said there were potentially 200 to 300 survivors watching this proceeding.
I want to get your thoughts. I’ve been looking at the report from the Standing Senate Committee on Human Rights, The Scars That We Carry: Forced and Coerced Sterilization of Persons in Canada —Part II. In the introduction, and I’ll just quote the section I want you to provide further detail on, it says:
In June 2021, the Committee released its initial report, which found that the practice of forced and coerced sterilization is clearly continuing in Canada today, and is both underreported and underestimated. The Committee also expressed concern about the disproportionate impact of this practice on vulnerable and marginalized groups in Canada . . .
And it goes on.
Can you comment as to the findings of it being underreported and underestimated, and then later, there being a disproportionate impact? Thank you.
Senator Boyer: Thank you for that question.
As an example, in 2017, I was a co-author of a report entitled External Review: Tubal Ligation in the Saskatoon Health Region: The Lived Experience of Aboriginal Women. I had done that report because two women had been reported to the Saskatoon StarPhoenix that they had been sterilized against their will in the Saskatoon hospital. The reporter contacted me in 2015 and asked, “What do you think about this?” I said, “Well, that’s against the law. You can’t do that; that’s criminal and an assault, and they should be charged. It’s terrible. It’s against both international and Indigenous law.”
Betty Ann Adam, who had called me, said, “Thank you very much,” and she published the first article about two women being sterilized in the same circumstances at the Saskatoon hospital. They were both Indigenous.
Then two more women came forward — and then two more and two more and so on, and pretty soon there were 11 women who had come forward. Regarding the 11 women who came forward, the Saskatoon Health Authority started getting a little worried about that. They decided they needed somebody to do an external review of their tubal ligation policies. They contacted me and asked me if I would do that. In the meantime, I had done several interviews across the country, talking about this issue that was happening in a Saskatoon hospital.
They asked me if I would do it, and I said that I felt very strongly about what they had done. There were other interviews, and they said that the Elders had asked for me to come because that was my home area. They knew that I knew the area and had a wide network of Indigenous People who knew me. I said, “I will do it if the Elders have asked, but only if you will grant me these three things I will ask you. The first is that this report is made public. The second is that I get to choose who works with me.” I chose Dr. Judy Bartlett who was a Métis physician with whom I had worked at the National Aboriginal Health Organization. I had been an operating room nurse before, and she had worked as a physician in the hospitals. She knew the hospital culture, as did I. The fourth thing was that I asked for the resources that we required, and I said they would not be unreasonable.
So at that time when the report was put out, we put it out in Cree. We had women come to talk with us. Many of them would call our hotline and then hang up. Many of them would call and say “hello” and then hang up. Many of them would call, make an appointment and then not show up. That was all because of the trauma involved. The trauma was so outstanding for women who have been sterilized or who hear this.
Sometimes when I’m out speaking to different organizations and there are people waiting to talk to me, they say, “It happened to me. It happened to my auntie. It happened to my sister.” The more other people and I talk about it, the more people come forward. But there are so many who can’t. My office gets calls, and they say, “I need to speak to the senator.” Then they can’t talk.
It goes hidden until it’s talked about.
Out of shame, people whom I’ve talked to have said that, in 25 years, they have never said those words before. It was traumatic for us doing the report.
I will finish with this: We had an Elder with us, Elder Mary Lee from Saskatoon, and she is a wonderful human being. Every morning when we were interviewing, we would all hold hands. There would be me, Elder Mary Lee, Judy and our researcher who was with us who answered the phone — our Cree speaker. We would hold hands, pray and ask the Creator to keep us strong enough to get through that day.
When the women who were strong enough to do so came in and testified, they would fall to pieces when talking about these traumatic events. They would say, “Would you like Mary to come in?” She would be an adjoining room, and she would come in and put her arms around them, hold them and say, “I’m going to hug you back together.” She would hold them until they could gather themselves to finish the interview.
There’s so much happening behind the scenes.
The ones who we interviewed were those who were strong enough to come forward, but there are so many who are in their journey to get to that point where they can talk about it or phone me to talk one-on-one. I have had a lot of people contact me who are so traumatized. We have a brochure we can send to them that asks if they need help, and if they need it right away. It asks, “Who do you have for support? Do you want to talk to someone? Do you need legal help? What do you want? Do you just want to talk to me?” I’m good with that.
This has gone on since I’ve been here at the Senate, which is since 2018. I get calls; my office is a safe haven for people to call. They are going to get help when they call me, but there are so many who can’t come forward. That is why it’s underestimated.
Senator Simons: Thank you so much, Senator Boyer, for bearing witness and for bearing the burden of this work. I have so much respect for your goals and so many outstanding concerns about whether this amendment will do what you want it to do without having unintended consequences for other people.
You have talked a lot about coercion. There is nothing in this bill, as it’s currently written, that deals with the issue of coercion. I want to ask you a short question and get a short answer first: What percentage of cases do you think involve force or something that is done when the woman is unconscious and she has no knowledge of it versus people being pushed, convinced — having this proposition made to them that they regret it afterward? How many are forced versus being coerced?
Senator Boyer: I would say it’s about 50/50. The coercion very much lies on the side of threatening; it’s more threats: “I’m going to take your baby away. We’re going to sterilize you. You’re going to lose your baby one way or the other.”
There was a very hard example to hear about a woman whose first child had cerebral palsy. The doctor wanted to sterilize her for her second child and told her that her second child might have cerebral palsy as well if she weren’t sterilized. Cerebral palsy comes from a lack of oxygen at birth, so that was a threat from the doctor that her baby may have brain damage as well.
Senator Simons: Are you suggesting that he was threatening that he would damage the baby?
Senator Boyer: Correct.
Senator Simons: That’s a powerful allegation.
Senator Boyer: So is sterilization.
Senator Simons: So that I’m clear, the assault provisions say, “For the purposes of this section, no consent is obtained where the complainant submits or does not resist by . . .” Would you say that is the exercise of authority? Because it is not the application of force or fraud.
Senator Boyer: The exercise of authority — the powerful and the powerless.
Senator Simons: Yes. It seems to me that it would be very difficult to prove coercion.
Senator Boyer: When it falls into the assault provisions, there is a lot of case law about that already. Coercion is defined in case law, and there is a lot of case law to back it up. That’s why we should put it into the Criminal Code, and the aggravated assault provision is probably the best place for it. It can fall back on the existing case law and jurisprudence in place.
Senator Simons: Even though there is no mention of the word “coercion” in your bill.
Senator Boyer: There is “coercion” in the assault provisions. I mean, it is with consent.
Senator Simons: But the word “coercion” doesn’t appear, just so that I am understanding.
Senator Boyer: Right.
Senator Simons: Okay. My underlying concern remains this: As Senator Batters has pointed out, it is already aggravated assault to remove somebody’s uterus without consent. The problem seems to be one of either women who are afraid to come forward or police who are hesitant to charge.
At the same time, I worry that a physician, looking at the language of your proposal and not looking to section 45, which is in a completely different part of the Criminal Code, would see that standard, ordinary medical procedures are now being criminalized. We don’t criminalize an appendectomy performed against one’s will or an amputation performed against one’s will. But now we are putting language in that says that every sterilization procedure, from a vasectomy on down, is illegal. And I know that’s not your intent, because it’s saved by section 45.
But I really worry about a chilling effect — that a physician who is not well versed in the ins and outs of the Criminal Code would look at that and say, “I may be hesitant to offer or even suggest a tubal ligation to a woman or a hysterectomy to somebody. I may be hesitant to perform a vasectomy. I may be particularly hesitant to perform gender-affirming care for somebody who is trans.”
I’m wondering if you can explain to me how we avoid having a chilling effect — because I think we’re all agreed that what women need is reproductive choice — so that we’re not, in order to protect one class of women’s reproductive rights, taking away another group of women’s reproductive rights.
Senator Boyer: Thank you for your question. I don’t think it restricts any type of gender-affirming care or sterilizations for people who have the ability to give consent. Every doctor is going to know that section 45 of the Criminal Code allows them to do emergency procedures. They are protected through section 45, so I think that any new doctor going in will not have to be worried about that.
In an aggravated assault provision, that is exactly what it is. It doesn’t create any new restrictions. It simply states that sterilization without valid consent is aggravated assault. Section 45 covers surgical operations.
Senator Simons: If I were a doctor, I might be concerned that if I talk to a woman, we have a conversation, I have a good-faith belief that she has agreed and then afterward she very much regrets her decision, I might be charged. I think it would make me as a practitioner a little worried.
Senator Boyer: That’s why we have prosecutors who would delve into it, why we have case law and jurisprudence that goes back 30 years on these topics and why it is in the aggravated assault provision. Thank you very much.
The Chair: We have a few short minutes.
Senator Pate: Thank you, Senator Boyer, and thank you to your team, for all your work on this — and not just while you were in the Senate, but before. You are shining a light on something that very few Canadians knew about before you started doing that work.
I was, as you know, in Saskatoon when Ms. Adams broke that story, and I was struck by not just the forced sterilization. Now we know about Joyce Echaquan’s case, and there are many examples like that, of people coming forward — particularly Indigenous People and Indigenous women — and talking about the racism and misogyny within the health system, as well as the lack of support.
Criminal law is a standard that we set to show what behaviour we expect and what we won’t abide. You know what I’m going to ask because we’ve talked about this, and you mentioned that part of your motivation is to deter, of course, the criminal, racist, misogynist behaviour of medical services.
I’m concerned — and I know others are raising concerns — that part of the reason prosecutions haven’t been brought forward is, as you’ve said, people are reluctant to come forward. There is a mistrust of the system. I’m not sure how the law changing will help that. I would like to hear more about how you think that will help — and I understand that’s the will of the survivors — but, as well, what added value the bill offers in addressing the root causes of why these forced and coerced sterilizations have happened, such as the systemic racism, colonial history and ableism in health care, things you know a lot about and have worked on. Could expand on that and why there is this focus, as well as what else needs to be happening?
Senator Boyer: Thank you very much for that because I would like to speak on that. I believe the key to the door that has just been opened is the Survivors Circle for Reproductive Justice. Pulling those survivors together and watching them have that power — they are taking their power back. They are setting a template for others to do the same.
We know that the Survivors Circle for Reproductive Justice is a very powerful organization led by very powerful women. And we know that they are creating the template, this plan to eradicate situations such as this and address racism in the health care system, but they are starting in little pockets here and there and watching it grow.
I think that they can set a standard for this to become a national framework for other organizations to work with. For example, there are women’s groups in the Maritimes — I have gone to speak with their Indigenous women — who are pulling themselves together and banding together. It is the same thing on the Prairies. Pockets of very powerful women who are survivors spread out through the country can be joined in a national framework that would start addressing some of these issues.
There is also working with the police, because there is such a history there. There needs to be a section within each of these pockets that does collaborative work with police and policing to build relationships of understanding and be able to make them grow. Those are some of the areas that we can look at.
For the first time, I’m really hopeful. After all these years, that survivors circle was put together, and I see it growing and thriving and blossoming right now, as well as their registry. They are hard-core. They are ensuring people are verified. They have a system in place, and they’re perfecting it and bringing more people in with more voices.
There is hope there. There is hope for all of these issues that we have talked about already. There is hope that there are people out there who can really lead and take some pressure off me. There are people who I can call. I can call and say, “I need you to help here. I need you over here in Halifax,” and so on.
I think there is a national framework coming. Thank you for that.
[Translation]
Senator Saint-Germain: Senator Boyer, through your training, your experience and your status as an Indigenous woman, you are at the heart of the two fundamental issues that this bill raises: on the one hand, respect for women’s and human rights, respect for their right to control their own bodies, and therefore their right to health, and on the other hand, maintaining a certain balance with the protection of doctors who, in good faith, may have acted well or made mistakes in accordance with the code, without being able to obtain the necessary legal protection. So these are two issues that are clearly important.
You are a woman of justice. In introducing this bill, you are currently satisfied that these interests — both those of patients and of doctors — are truly protected and respected.
Could you briefly explain why you believe this bill will achieve those objectives in both cases?
[English]
Senator Boyer: Thank you for that. Again, I want to refer to what I see coming in the future. It’s not just one or two of us paddling away, trying to get things done and ensuring that everything is right in place legally and the women are tended to. There is power in numbers. With every one of the women that I spoke to, that I interviewed and still talk to, I say, “There is a whole army behind you right here, and we’re strong and we’re tough and we can figure these things out together and I’ll get you what you need; you can then take over.”
I go to medical schools. I go to the youth. I go to the high schools. I usually take a physician with me. There are many Indigenous physicians who like to do these things with me.
We will have a huge class of medical students, and I will say, “Tell me what you would do if you were in the OR and asked to assist on a woman who says she doesn’t want this tubal ligation. What do you do?”
They look at each other and say, “What do we do?”
I say, “Figure it out right now. Break into groups and tell me what you would do.”
Then they come up with these ideas about how they can take control themselves and how they can stop it. That’s taking a huge risk as a medical student. You have a senior doctor there.
Not all of the doctors are doing this, but there are handfuls that are. But there are ways to stop it, and it’s infiltrating from below. That’s one way; it’s through the medical students.
We have the survivors who can now go out and do that — give talks and talk to the medical students.
That’s one way that I believe is very effective, because those students are now doctors, and some of them have actually come and thanked me for that, because they get into situations where they need to take their power; they need to do that themselves, and they do.
It’s figuring things out as you go too. You come up with one of those problems and we’ll figure it out. There are enough of us out there. I have brainstorming sessions with other lawyers, and there is a strong network of people who are working behind the scenes here — and not just with Indigenous People. This is with people with disabilities too, as well as intersex people and people who need gender-affirming care. There are instances of reproductive justice — and injustice — that comes to me all the time, and there is a huge network of people who are very committed, very strong and ready to figure out what we must do.
But I am sure this bill is really important because this is going to be a marker. This is a marker for people to look at. Yes, we have something in the Criminal Code now. We have power. We’re taking back power. We can figure out everything as we go too. That’s what happens when you make change.
[Translation]
Senator Saint-Germain: If I understand you correctly, the coexistence of patients’ rights and the necessary protection for doctors who comply with the Criminal Code as amended is already set out in the act. You also argue that, in addition to the act, there should be enhanced practice protocols, awareness and information.
In other words, some of the recommendations we see from certain groups are not worthy of being included in a bill. However, they should be part of the awareness campaign once the bill is passed. Consequently, there would be more protocols that should be included in practice. Is that correct?
[English]
Senator Boyer: Yes. After it is incorporated into the legislation, there should be codes of practice. I know the First Nations Health Authority have been very active and leaders in the area of revising all of their consent forms to be culturally appropriate and trauma-informed in British Columbia. I know that because I’ve worked on it with them, and they’re leaders in that area.
So yes, there need to be codes of practice for every hospital. There needs to be a code of practice for every medical association that’s culturally appropriate and trauma-informed by survivors. Thank you for that.
Senator Saint-Germain: Thank you very much.
[Translation]
Senator Oudar: I would also like to say a few words, first of all to thank you, Senator Boyer. When I arrived in the Senate, you had been working on this bill for several years already. You have my full support.
I would like to follow up on a previous intervention regarding the amendments to the preamble of the bill. I would like to hear your thoughts on this subject: Would an amendment to the preamble as set out in the question asked not have an adverse effect on other groups of women?
Thank you for submitting documents, including the 2021 report of the Senate Standing Committee on Human Rights, entitled Forced and Coerced Sterilization of Persons in Canada. On page 12, the committee stated that, according to the testimony heard, poor women, women living with disabilities, African and North African Canadian women, racialized and ethnic women, and women living with HIV are particularly vulnerable to being subjected to forced or coerced sterilization in Canadian health care settings where their personal agency is removed or limited.
I am pleased to hear your response about not amending the preamble. You just talked about a pivotal moment for other groups of women who are also experiencing this kind of procedure. I think the bill as it is currently worded is entirely satisfactory, including to cover all the other situations that the Senate Standing Committee on Human Rights examined in 2021.
Earlier, Senator Boyer also used this pivotal moment for these other groups, which I would not want us to forget here today. I’m going to allow Senator Boyer to expand on this idea.
[English]
Senator Boyer: Thank you. In the first report from the Senate’s Human Rights Committee, it was very important that we took a big look to see who’s affected by this. I didn’t know that 250 Black women in Nova Scotia underwent hysterectomies without consent. There are really pressing issues out there.
We also received a letter from Inclusion Canada about people with disabilities and how important it is to note that they’re also undergoing sterilization without consent. So there are a lot of issues. Because the survivors circle are leaders in this area, I think their cohesion and organization can help to lead other groups. It can be a big umbrella group to address sterilization in all of these other areas that we noted and that were brought to us in the testimony on the first report. I believe it is possible; I’m hopeful. Thank you.
Senator K. Wells: Thank you for the amazing advocacy that you’ve continued to pursue and the justice that you hope to see enacted for the survivors, at least as much as we can give.
We’ve heard recently from politicians, including in my province of Alberta, who are equating gender-affirming care with a form of coercive sterilization. So I’m glad to hear that, in your opening comments, you’re correcting this misinformation and clearly indicating that this bill would not apply to gender-affirming care. The concern is that a bill can be weaponized with unintended consequences to target a vulnerable minority for political gains. We’re certainly seeing a lot of that these days.
Could you talk a little more about the consultations you’ve done with groups and stakeholders and particularly with the 2SLGBTQI+ community? Many concerns have been raised by the intersex community, who continue, especially as babies or as infants, to be subjected to coercive sterilization by doctors who convince parents that these are medically necessary procedures.
Of course, we have the challenge of the Criminal Code which gives a blanket exemption over what appears to be “normal” genitalia. I’m not sure exactly who defines “normal.”
What are your thoughts on what you’ve heard, and how have you been sensitive to that feedback in crafting your bill?
Senator Boyer: Thank you. I talk to a lot of people. One issue stands out for me, and I would like to have the time to research it or to ask the survivors groups to do that. I’m looking at the policies within each province. When people are transitioning from female to male, the requirement for them to be sterilized is in the health policies — at least it was in Ontario — and I found that completely appalling. I couldn’t understand why.
It’s an area about which I need to talk to various physicians who are working there. I want to ask why and what goes on. I need to know what’s going on in other provinces and why that would be necessary. I was told it was something to do with hormones, but I don’t understand that yet. I haven’t had any kind of reasonable explanation for that happening. I’m not 100% sure; I’m only mentioning it now because it’s an outstanding issue on my plate of things to work on.
A lot of people have contacted me regarding various issues of reproductive injustice, especially in Alberta. They are scared — terrified. This bill doesn’t have anything to do with people who do or do not want to be sterilized; it doesn’t take any agency away from anybody.
I appreciate you bringing that up, Senator Wells, because it’s an area that needs more exploration. There should be some type of committee or research group — I know the survivors would definitely be interested in something like that as well. It’s a very important issue, and I believe they think so as well. Thank you for that question and for bringing that up on the record.
Senator Clement: Mr. Chair, my questions have been answered.
I just want to thank you, Senator Boyer, for your leadership. I did want to come back to what Senator Oudar was raising; the work of Indigenous women around this issue means that other women who live in the intersection, such as Black women, will benefit from this work. Their voices are there, too, and noted. I wanted to just come back to that point and thank you.
The Chair: Colleagues, thank you for your questions.
Senator Boyer, thank you very much for your evidence here today, for your advocacy and for your leadership on these issues.
Senators, we now move to the next panel.
We welcome, from the Department of Justice Canada, Nathalie Levman, Senior Counsel, Criminal Law Policy Section; and also Morna Boyle, Counsel, Criminal Law Policy Section. Welcome. Thank you for joining us. We’ll begin with your opening remarks. We’ll give you five to seven minutes or so and then have questions from the senators. Please proceed.
Morna Boyle, Counsel, Criminal Law Policy Section, Department of Justice Canada: Thank you for the opportunity to be with you here to discuss Bill S-228.
I know that this committee has considered this issue previously and is very familiar with the changes proposed in this bill. We appreciate the opportunity to return to this committee, as we did when you considered former Bill S-250, and we hope that our appearance today will assist you in your ongoing deliberations.
[Translation]
We have been asked to share a few opening remarks. We thought it would be useful to share with the committee our understanding of the impact of the proposed amendments and their compliance with current criminal law.
[English]
As Senator Boyer has previously explained, Bill S-228 proposes to amend the Criminal Code to clarify that the law of assault applies to all coerced sterilization procedures. It would do this by specifying that a sterilization procedure constitutes a wounding or a maiming for the purposes of the aggravated assault offence provision in the Criminal Code.
Aggravated assault is the most serious assault offence in criminal law, carrying a maximum penalty of 14 years’ imprisonment, and it applies where an assault wounds, maims, disfigures or endangers the life of the victim.
[Translation]
The bill would also define the term “sterilization procedure” extensively to include any act that permanently prevents reproduction, whether or not the procedure is reversible through a subsequent surgery.
[English]
Because all surgeries, including sterilization procedures, involve wounding or maiming a patient, they already constitute aggravated assault if they are performed without valid consent.
In this respect, Bill S-228 reflects the current state of the law by making clear that the provision is for greater certainty, which means that the amendments are intended to clarify the law, not change it.
[Translation]
This approach would therefore clarify that established legal principles related to assault would continue to apply to forced sterilization procedures.
[English]
Those principles are articulated in both the common law and section 265 of the Criminal Code which defines assault for the purposes of the Criminal Code’s assault provisions. These principles also clarify that assault law does not apply where legally effective consent is provided.
In particular, those principles stipulate the following:
First, legally effective consent must be freely given or voluntary, which means there can be no fraud or duress. This principle is codified in subsection 265(3), which specifies that consent is not obtained in law where the complainant submits or does not resist by reason of violence or threat of violence, fraud or the exercise of authority.
Second, legally effective consent must go to the nature of the act, which requires that the patient have a “foundation of knowledge.” This has been described as “knowledge of the purpose of the operation,” “knowledge of the events” and “perception as to what is about to take place.”
Third, legally effective consent must be given with the ability to understand, which means that patients must be able to appreciate the nature of an act.
The Supreme Court of Canada has affirmed that medical procedures carried out without valid consent constitute assault and that assault law will recognize consent to applications of force that have social value, such as “appropriate surgical interventions.” These principles are articulated in the Supreme Court’s 1988 Morgentaler decision and 1991 Jobidon decision respectively.
[Translation]
Thank you again for giving us the opportunity to be here. We are available to answer any questions you may have. Thank you very much.
[English]
The Chair: Thank you. We will now move to questions. We will start with the deputy chair, Senator Batters.
Senator Batters: Thank you for that very good explanation of exactly what we’re looking at here. I just wanted to go back to something. I was going to ask the previous panel when this arose, but because there wasn’t time for a second round, I decided I would tailor it to bring it up here.
There was a reference to this issue of coercion by Senator Simons when she was asking some questions, and she mentioned my name. I wanted to clarify what I’ve said at this committee in the past about that issue directly.
I’m looking back to the transcript of this committee from September 19, 2024, when it was last discussed and when we had some discussion of the bill as it currently stands. At that committee, Ms. Levman was actually giving her — as usual — very good testimony to help us understand these types of complex matters very well. She was at one point answering questions from Senator Boyer, and Ms. Levman said:
I would like to underscore that the proposed amendment in no way alters existing assault law. However, it does underscore that the law of assault continues to apply to all sterilization procedures — all of them — that are performed without the patient’s legally effective consent. . . .
And then she said, speaking again to Senator Boyer:
. . . your amendment underscores that valid consent must be provided to all sterilization procedures regardless of whether sterilization was the primary purpose, regardless of whether subsequent surgical intervention could reverse it. There is clarity there through the amendment that you have proposed.
When Senator Boyer was asking Ms. Levman whether we should take out the word “coerced” out of the existing motion we have before us today because that had previously been in there, Ms. Levman said:
I am saying, yes, that including the term “coerced” could be interpreted as requiring proof of something more than the absence of legally effective consent under assault law. That could make non-consensual sterilization procedures more difficult to prove than other forms of aggravated assault, which I understand is not at all the committee’s intention or objective. That is why the concern was raised.
She went on further to say:
. . . sterilization procedures, which, of course, are legitimate medical procedures that do have social value provided that legally effective consent is provided. That is why the assault provisions are silent on consent in respect to legitimate medical procedures. This means that the assault law consent rules always apply to legitimate medical procedures and that those procedures constitute assault where those rules are violated.
Then, a little after that, I asked Ms. Levman:
I do agree about the need to take out the word “coerced” out of what is paragraph 268.1(1) in this proposed amendment, because to say “coerced sterilization procedure” I think could also add another element that the prosecutor would have to prove in that case to say, “coerced.” Then in paragraph 268.1(2) the definition provided for sterilization procedure simply says “sterilization procedure” and then provides the definition rather than “coerced sterilization procedure.” Is that also part of your reasoning that you think it is problematic to include the word “coerced”?
Ms. Levman responded:
I think the main concern about including the term “coerced” is that it looks like it adds another element to the offence that needs to be proved by the prosecutor.
I wanted to include that, because I think it is important for the public watching this to understand what the actual situation is in dealing with the word “coerced.” Do you have anything to add to that to add further context, or does that provide what you would need on that?
Ms. Boyle: I will turn it over to my colleague. I believe it provides the main crux of the point.
Nathalie Levman, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: Thank you for the opportunity to speak, senator.
I would like to underscore for the committee that the term “coerced” in this context is being used loosely as a label to describe what you’re talking about. However, what makes the procedure coerced in law is the violation of the assault consent rules, and they are both in section 265 and in jurisprudence. We must not forget the jurisprudential part. It is not just section 265 and subsection 265(3); it is also jurisprudence. I believe Senator Boyer was quite eloquent on that point. Thank you.
[Translation]
Senator Miville-Dechêne: My colleagues, including Senator Simons, have asked questions about facts that could be harmful to obstetricians or doctors who perform sterilizations. You worked with Senator Boyer on these amendments.
Did you consult with outside experts in the medical or obstetric professions before proposing this amendment? Did you receive confirmation or at least engage in discussions with individuals who perform sterilizations, sometimes for entirely obvious reasons, to determine whether they are concerned about this legislation as it has been rewritten?
[English]
Ms. Levman: Thank you for that question.
Just to clarify, consistent with my testimony last time, we did provide support but through our minister’s office only. We considered the different viewpoints of the impacted parties, and one of the reasons why a “for greater certainty” clause was suggested is specifically because it wouldn’t change the law. If it doesn’t change the law, it can’t have a chilling effect, and it can’t impact medical practitioners either.
Section 45 continues to operate the way it always has, and the aggravated assault provision continues to apply to all non-consensual surgical procedures, meaning surgical procedures that are performed without legally effective consent, as per section 265 and assault law jurisprudence.
[Translation]
Senator Miville-Dechêne: Great. Were there consultations with the doctors? I understand that you are saying that the law doesn’t change. Sterilization is now mentioned in the act, and the mere mention of a particular procedure can cause concern within a profession. Was there any consultation with the medical profession before this proposal was made?
[English]
Ms. Levman: No, we did not speak to people from the medical profession. We did speak informally with some nurses and midwives from Indigenous Services Canada, so we did get some informal perspectives from them. However, there was no formal consultation, which is fairly normal for a private member’s bill.
[Translation]
Senator Miville-Dechêne: Thank you.
[English]
Senator Prosper: Thank you to the witnesses for being here and discussing this very important topic.
I have a question, and it was noted within the previous panel and just now with respect to the consent provisions within the Criminal Code. I believe you reference subsection 265(3), which sort of gives the context for consent.
My question is, I guess, quite simple: Do you think that provision involving consent should stand and is sufficient when we take into consideration some of the factors that we have heard through the testimony involving sterilization, particularly as it relates to vulnerable and marginalized people? Do you think those provisions adequately meet those challenges that vulnerable and marginalized people face within the context of sterilization?
Ms. Levman: I believe the last time I was here, I talked about the three underlying principles undergirding the concept of consent in assault law, which my colleague has already gone over. I pointed to some examples that they would capture.
For example, the first one is that consent must be freely given. What types of cases would that cover? I had said that this rule is at issue where a patient is pressured or deceived into consenting to a medical procedure.
The second one is that consent has to go to the nature of the act, and I pointed out that rule was at issue when a patient isn’t provided with sufficient information to understand the nature of the procedure to which they are consenting.
Then the third principle is that consent has to be given with the ability to understand, and I pointed out that rule is at issue when the patient is a child or has a cognitive impairment.
I would also point out that where a person isn’t told — where it’s just performed and there’s no consent at all — the assault provisions would operate there to say that legally effective consent was not given.
My understanding from the testimony before you and from the extensive studies that Parliament has undertaken on this issue is that does capture what people have so bravely come forward to share with you.
Senator Prosper: Thank you.
Senator Boyer: Survivors have told us that consent was often sought at very inappropriate times — during labour or while under medication or under duress or intense pressure from authority figures. Can you speak to how the existing law of consent addresses those circumstances and why reinforcing it in the context of sterilization is so important?
Ms. Boyle: I’m happy to start the answer and then turn it over to my colleague to complete.
As I said in my opening remarks, for consent to be legally effective in the context of assault law, it must be freely and voluntarily given. There cannot be fraud or duress. In situations where women are pressured, fooled or in an otherwise vulnerable position and told by a person in authority that this is something that must happen, an argument could be made that the consent given was not legally effective because it did not meet those criteria of being freely given and void of duress.
I can turn it over to my colleague to speak to that further.
Ms. Levman: I would point out that it can be very difficult to provide definitive answers in respect to general cases. Usually the law is applied on a case-by-case basis, as you know. We can’t definitively say that in a particular set of circumstances, consent would absolutely be not valid.
What we can say definitively, though, is which rules are operable, and I think that’s what my colleague has done in the sense that principles like duress and fraud are operable. Duress is a very well-developed principle in assault law. I would like to stress that, and I think I pointed out for this committee last time that assault law is quite ancient. And you, Senator Boyer, have already pointed out the extensive jurisprudence that applies.
All of that helps courts, prosecutors, police and so on decide whether a charge is warranted, whether to pursue a prosecution and then whether a court finds legally effective consent has been given.
But I absolutely support what my colleague said, which is that those types of factors, when they are present, compromise the meaningful consent for the purposes of assault law. These are the types of cases that you have heard, I know, and the assault law principles do operate in that space.
Senator Boyer: Under those circumstances, what happens if a woman signs the consent form and then revokes it before surgery? Would that be valid? What if they say, “No, you can’t revoke it. We’re taking you into the operating room and doing the tubal ligation.”
Ms. Levman: She has withdrawn her consent in that case, so there is no consent.
Senator Simons: I laughed a little bit, Ms. Boyle, when you said assault law is the oldest. It is because we have been assaulting each other for longer than we have, for example, been engaging in crypto fraud. It’s the original sin. And I understand what you say about the huge body of jurisprudence behind all of this, meaning that the courts, the prosecutor and the judge would understand in a way that a layperson would not what the scope of assault is.
What concerns me is the more psychological chilling effect on physicians who are being told that a standard operation that they perform day in and day out is prima facie a crime unless they read up to section 45.
If you look at the plain text, it says “all sterilizations” are aggravated assaults in a way that we don’t say “all appendectomies without consent” or “all amputations without consent,” although they would be assaults. They would all be assaults.
I’m concerned about the chilling implications for people seeking gynecological care or men seeking care that is encompassed by sterilization.
My office has drafted a hypothetical amendment just in case, and I want to lay it out to you for you to tell me if it would be valuable or would confuse things more. This would be to hypothetically add to subsection 268(1): “For greater certainty, but subject to section 45, a sterilization procedure, et cetera.” I know that legally that is not necessary, but could it be socially or politically useful?
Ms. Levman: Thank you for the question. First, I would like to go to Bill S-228 itself. It says, “ . . . a sterilization procedure is an act that wounds or maims a person for the purposes of subsection 268(1).” It does not say a sterilization procedure is an aggravated assault. It says that it’s a wounding or a maiming. You still have to prove assault.
In order to prove assault, you must go to section 265 and prove a non-consensual touching of some sort. That operates very similarly to the existing subsection 268(3), where you see the following:
For greater certainty, in this section, “wounds” or “maims” includes to excise, infibulate or mutilate, in whole or in part, the labia . . .
Senator Simons: Genital mutilation like that doesn’t have a medical function. That is only done to oppress women, whereas these other things are done routinely for people’s health.
Ms. Levman: That is why in subsection 269(4), it says, “For the purposes of this section and section 265, no consent to the excision, infibulation or mutilation . . .” of the labia is valid.
They have specifically said consent to excision, infibulation or mutilation of female genitalia is not valid unless it falls within two narrow exceptions. Bill S-228 has no provision like that, which means that consent is valid. If proper consent is given according to section 265 and the common law and all of those principles are followed, the sterilization procedure is not an aggravated assault any more than any other surgical or medical procedure would be any form of assault.
That’s why there is no equivalent of subsection 269(4) in Bill S-228. So to your question about adding “subject to section 45 . . .” I would say that it’s not necessary at all.
Senator Simons: It is not necessary legally.
Ms. Levman: No, section 45 is a valid defence. It exists in the general defence part of the Criminal Code and is available to any doctor or medical practitioner who provides medical services to someone who is incapable of consenting, usually in an emergency situation, like when they are unconscious. That is usually where it operates.
Senator Pate: Thank you both for your work. I’ve received some information from lawyers who are concerned that introducing the phrase “permanent prevention of reproduction” might inadvertently raise the threshold for aggravated assault by requiring permanence, which is not otherwise necessary to establish maiming under the Criminal Code. I’m curious about your thoughts on that.
While you’re contemplating that, research from the Department of Justice has shown that laws, in particular criminal and sentencing law, do not necessarily deter behaviour and that there is some suggestion that the identification of a law like this might encourage doctors to lawyer up, for lack of a better term, and not necessarily change their behaviour and that education is needed. I’m curious what steps the Department of Justice is taking to provide general and specific education for doctors, lawyers and the like.
Ms. Levman: I’ll start with your latter question because that was more recent.
I agree that when you develop new provisions in the code, training is always very important. Senator Boyer referred to the survivors circle. I have had the great honour to meet with them in person, and I have heard of all the wonderful work they are doing. Certainly, we are there to support them and will continue to do so going forward.
This amendment may well serve as some kind of anchor or hanger to place training initiatives on. That’s what I would say about your second question.
Your first question was about the phrase “. . . results in the permanent prevention of reproduction —” and then it says “— regardless of whether the procedure is reversible through a subsequent surgical procedure.”
That deals with the possibility that sometimes snipping Fallopian tubes, for example, can be fixed, but snipping Fallopian tubes involves going into a person’s body, so it involves a wounding of and serious damage to internal organs.
I don’t think that the inclusion of “permanent” is a problem, particularly where you have “regardless of whether the procedure is reversible.”
In any event, as I said, aggravated assault is really an offence of general application, and that may be one of the reasons why there isn’t as much awareness around how the law applies in a medical context. This just clarifies that sterilization procedures, regardless of whether they can be reversed, constitute aggravated assault if legally effective consent is not provided.
I don’t see a problem unless I’ve misunderstood your question, senator.
Senator Pate: I think you’ve answered the question, but what they were saying was the evidentiary threshold might be raised by this to a requirement of permanence in order for it to be maiming. I can think of a lot of examples where aggravated assault may result in very serious injury but not necessarily permanent injury. That was the suggestion. Would this possibly raise the threshold?
Ms. Levman: I don’t think so, because when you’re talking about a surgical procedure, you are talking about something with at least temporarily permanent results. You would have to go back for another surgery in order to correct it.
I think that the definition is quite clear. I understand from previous testimony that Senator Boyer did a lot of work and consultation on that definition. Maybe she wishes to speak to that.
Senator Pate: There is also the question of whether there has been any new research on deterrence since of the Department of Justice —
Ms. Levman: Not that I’m aware of.
Senator K. Wells: I am going to ask you to help me understand something. If this new section becomes law, would it prevent coercive or forced sterilization on an intersex child or does subsection 268(3) take precedence here? Is there a conflict between these clauses?
Ms. Levman: Maybe I should, for the committee’s benefit, review the female genital mutilation, or FGM, provision and how it works with the exceptions, because I think maybe that’s what might be tripping you up.
Senator K. Wells: It’s the specific exception in subsection 268(3) that would seem only to apply to the language that is used, sexual disorders of development, which we commonly would call intersex conditions. My reading of this would be that this is the only group in society that could legally be sterilized without consent.
Ms. Levman: First, I want to stress is that the female genital mutilation provision was designed to address a very particular form of violence against women. It didn’t contemplate the issue that you’re raising.
I want to point out that with female genital mutilation, what it says is that excising, infibulating or mutilating female genitalia constitutes a wounding or maiming for the purposes of the assault provisions. Then it says that you can’t consent to it except in two very limited places. One of them is surgical procedures that are legitimate, generally meaning that they would apply to things like removing a cancerous growth from the labia or perhaps repairing damage that was done by the process of female general mutilation in the first place. That would involve excision. “Excision” just means “to cut.” That is all that means. So we need to be mindful of the fact that most surgical operations do involve cutting.
What paragraph 268(3)(a) says is that the law will recognize a person’s consent to a valid, legitimate medical procedure that involves excision to female genitalia. The question then becomes this: What is a valid medical procedure to female genitalia? I’ve just given you two examples.
In terms of intersex children, I understand that there is some development in the medical world, and I would refer to them because they are the experts on this, but the pediatric urology people have said that, generally, these things should not be done. So the question is the validity of a procedure on an intersex child. Also, what we’re talking about here are labia — only female genitalia.
Senator K. Wells: Let me give you another example that steers away from female genitalia. What would happen in the case of a botched circumcision, where the penis was removed and the child then had their gonads removed and was assigned a female gender? We have a famous case of this. It has happened without the consent of the child or even the knowledge of the parents.
This could be considered, then, a case of forced sterilization if there was no consent from the child, the parents or the guardian.
In your reading here, subsection 268(3) would not be a defence because that deals with, let’s say, female genitalia.
Ms. Levman: No. I’m just saying that the only time the law will recognize consent in the context of excision of female labia is when it is a legitimate medical procedure. In the case that you just articulated for us, there was no valid consent given at all. So aside from the botched operation part, you have the no consent part, which means that it is an assault, but the botched operation part also implicates section 216, which imposes a duty of reasonable care on medical practitioners and implicates the criminal negligence offences as well.
We have been focusing, in the context of coerced sterilization, on aggravated assault because that’s what is operative there, but I want to underscore that there are duties in the code on the part of medical practitioners to take reasonable care when they operate and provide medical procedures. When that duty is not fulfilled, there is a marked departure from what a reasonable physician would do in that context, and the criminal negligence laws would also apply.
Senator K. Wells: What we’re getting at here is that in the case of an intersex baby, no baby can give consent. Sometimes, then, there is, as has been, coercion by a physician to have the parents agree to a surgery. Then, as the child develops their gender identity and realizes their anatomy does not match their identity, that causes this kind of distress, which is why with this section, as it applies to female genitalia, there has been concern in the intersex community that it could be misused.
As you say, we’re perhaps getting to an understanding — nothing codified — but there are some physicians who disagree that we should wait until the child is able to determine what surgeries, if any, that they would like in order to correspond with the gender they identify with.
There is some concern, and I don’t know if our conversation muddies things or clarifies things further for individuals about a misuse of a particular section of the code.
Ms. Levman: I don’t think the problem is with subsection 268(3). I think the issue is whether the criminal law should recognize the consent of someone other than the patient, who’s a child in a case like that. That raises separate legal issues from what’s in current subsections 268(3) and (4).
Senator K. Wells: Sure, and I don’t want to go down the rabbit hole too far but the word “normal” — what do “normal reproductive function” and “normal sexual appearance” mean? By default, by using the word “normal,” you’re assuming there is an abnormal. Would that be abnormal because it’s preventing a necessary medical function? That is often the defence: “This is a medically necessary surgery.”
Ms. Levman: My understanding from the record of the bill that enacted this provision is that they meant “normal” to mean normal female genitalia. If there were a cancerous growth, for example, and you’re removing it, you’re making it look normal. It might not be the best term, and perhaps now, another term would be used. It has now been almost 30 years since this was enacted. It is the same if you’re repairing the damage done by female genital mutilation: You’re trying to re-establish a “normal” appearance, which means what normal female labia would look like.
Senator K. Wells: Thank you for bearing with me.
Senator Clement: I want to follow up on that in a different way. You answered a question about assault being one of the most ancient types of criminal activity covered by the code, so there would be a lot of ancient jurisprudence around how to interpret this. However, Senator Wells raises emerging important and different issues that we’re now paying attention to. So do we have now jurisprudence that can help with addressing some of these issues and our growing awareness, as a society, that we’ve done wrong in terms of how we define things?
Ms. Boyle: The jurisprudence on these issues is limited. An in-depth case law search found that there have been many cases where doctors have been found criminally liable for non-consensual acts performed on patients in the course of their duties. However, the jurisprudence largely — almost exclusively, in fact — focuses on sexual assaults — sexual acts — performed on patients without their consent. It is a separate issue.
We did find very limited case law in which the law of assault simpliciter has applied to cases of assault, basically in situations where the individual administers medical treatment without actually being a qualified medical practitioner.
So the large majority involves sexual assaults in the case law to date.
Ms. Levman: And that would be fraud if you’re holding yourself as a medical professional and claiming a treatment will have a beneficial impact that it doesn’t and the person agrees to undergo that treatment. Then that consent will not be recognized in law.
To add to what my colleague has said, one of the purposes of an amendment like this might be to encourage the reporting of cases, to make people feel heard and to have the confidence to come forward. That, of course, is what eventually leads to modern case law.
Senator Clement: That’s super helpful. Thank you. I just want to pitch the fact here that our Criminal Code has not been reviewed in over 50 years, so we are woefully out of date, generally speaking.
The Chair: Are there any other questions by senators? If not, colleagues, please join me in thanking our witnesses for their participation and presence here today. Thank you very much.
(The committee adjourned.)