THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, September 25, 2025
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 10:32 a.m. [ET], partially in camera, to consider Bill S-228, An Act to amend the Criminal Code (sterilization procedures).
Senator David M. Arnot (Chair) in the chair.
[English]
The Chair: Good morning, honourable senators. My name is David Arnot. I’m a senator from Saskatchewan and chair of this committee.
I now ask the members of the committee to introduce themselves.
[Translation]
Senator Miville-Dechêne: Senator Julie Miville-Dechêne from Quebec.
[English]
Senator Tannas: Scott Tannas, Alberta.
Senator Boyer: Yvonne Boyer, Ontario.
[Translation]
Senator Oudar: Senator Manuelle Oudar from Quebec.
[English]
Senator Prosper: Paul Prosper from Nova Scotia, Mi’kma’ki Territory.
Senator K. Wells: Kristopher Wells, Alberta, Treaty 6 territory.
Senator Simons: Senator Paula Simons, Alberta, Treaty 6 territory.
Senator Pate: Kim Pate. Welcome. I live here on the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
[Translation]
Senator Saint-Germain: Raymonde Saint-Germain from Quebec.
[English]
The Chair: Honourable senators, we are meeting to finalize our study on Bill S-228, An Act to amend the Criminal Code (sterilization procedures). Our first panel has three members. We are pleased to welcome, from the Society of Obstetricians and Gynaecologists of Canada, Dr. Diane Francœur and Dr. Lynn Murphy-Kaulbeck. Also joining us by video, representing the Canadian Medical Association, is Dr. Margot Burnell, President.
Thank you for joining us here today, witnesses. We will begin with your opening remarks before we move to questions from members.
Your presentation, please, Dr. Burnell, for about five minutes or so.
Dr. Margot Burnell, President, Canadian Medical Association: Thank you, Mr. Chair. Good morning. I am pleased to join you from the traditional territories of the people of the Treaty 7 region in Southern Alberta and home to the Métis Nation of Alberta Region 3.
As a medical oncologist with nearly four decades of experience, I have led hospital departments, contributed to clinical research and advised on national health policy. I have the privilege of representing physicians and medical learners from every corner of this country and, through them, the people for whom they provide care.
Thank you for the invitation to provide the physician’s perspective on Bill S-228, an Act to amend the Criminal Code (sterilization procedures). Mr. Chair, we appeared before this committee last year about the original bill, Bill S-250. We expressed our support. We are here today to support Bill S-228 and further commend the clarity brought by the updates to the wording.
Bill S-228 makes clear that performing a medical act leading to sterilization without free, prior and informed consent constitutes aggravated assault. This clarity can draw attention to the issue for physicians, patients and law enforcement. The new provision can have meaningful influence on the importance of obtaining free, prior and informed consent and on informing patients about the medical risks associated with medical procedures, including the possibility of sterilization if a physician must act to protect a patient’s health or life from a medical perspective. This clarification could also result in improved prevention measures and more thorough investigations.
The Canadian Medical Association, or CMA, condemns the abhorrent practice of forced and coerced sterilization. These acts are rooted in systemic racism and discrimination. They have caused irreversible harm, most often to Indigenous women, girls and Two-Spirit individuals and left a legacy of inequality and injustice in regard to human rights. The harms of the practice of forced or coerced sterilization, which seeks to control human breeding by denying births, are immense and carry forward for generations of those who have been subjected to a non‑consensual sterilization procedure. The dark chapter in our country’s history is not yet behind us.
In the past, both governments and parts of the medical community supported these practices to limit 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.
The Canadian Medical Association is committed to the highest standards of ethics and patient care. However, we must acknowledge our profession’s role in these unethical practices. The medical and legal communities must stand together in an unwavering commitment to protecting the rights and dignity of every person in Canada.
If Bill S-250 was a step forward, the clarity of Bill S-228 is a stronger safeguard and an improvement. We support the amendments to the Criminal Code that make sterilization without free, prior and informed consent a crime. This amendment is one critical step. It is still only the beginning of the work to be done.
We must end systemic racism against First Nations, Inuit and Métis Peoples in our hospitals and across our health system. As we reform the system, we must hold fast to the pillars of medical ethics, treating every patient with dignity and respect, while recognizing vulnerability, supporting autonomy in health decisions and confronting inequities in care. These principles can guide us to a system that is truly universal and just.
The CMA fully supports the changes to the Criminal Code in Bill S-228. We look to a future where every person’s rights are protected and where patient consent is always paramount. Our responsibility is to help ensure a health system that is a place of safety, dignity and care for all. Together, we must ensure that health care providers are equipped to engage in culturally and psychologically safe reproductive health conversations with Indigenous patients.
We commend the government for its leadership in educating the public on this important matter and for the unwavering leadership of the Survivors Circle for Reproductive Justice in supporting those most closely affected by this unethical practice.
Accountability means ensuring these injustices of forced or coerced medical sterilizations are never repeated. This amendment is one step towards justice, and it obliges all of us to do more. Thank you.
The Chair: Thank you, Dr. Burnell. Now we will hear from the Society of Obstetricians and Gynaecologists of Canada, Dr. Francœur and Dr. Murphy-Kaulbeck.
Dr. Lynn Murphy-Kaulbeck, President, Society of Obstetricians and Gynaecologists of Canada: Good morning, Mr. Chair and honourable senators.
My name is Dr. Lynn Murphy-Kaulbeck. I am a maternal fetal medicine specialist and I serve as President of the Society of Obstetricians and Gynaecologists of Canada, or SOGC. I am joined by our CEO, Dr. Diane Francœur, who is also an OB/GYN. We are grateful for the invitation to appear to discuss this issue of profound importance.
Let me begin with absolute clarity. The SOGC strongly condemns coerced or forced sterilization. No woman should ever be subjected to permanent contraception without her free, prior and informed consent. Autonomy and consent in reproductive decision making are a cornerstone of ethical medical practice and a fundamental human right.
We issued an opinion in 2019 on non-coercive contraceptive care precisely because of the systemic racism and violations of trust that have come to light, including the tragic treatment of Joyce Echaquan and the broader revelations of the truth and reconciliation process. We must continue to acknowledge these harms and take responsibility as a profession.
Our organization has made deliberate attempts to confront these legacies to try to prevent such harms from happening. We have embedded training on consent, cultural sensitivity and acknowledgement of past and ongoing medical harms into our accredited continuing education programs. The SOGC ensures that every physician who takes part in our courses receives evidence-based education that reinforces the principles of informed and non-coercive care.
When it comes to medical harms that have been inflicted on Indigenous Peoples in health settings in Canada, we have publicly acknowledged that historical, ongoing and unacceptable harms have unfortunately taken place. Acknowledging these wrongs is an important step toward reconciliation and healing. In June 2024, we issued a public statement unequivocally condemning coerced sterilization.
We recognize that Bill S-228 is presented as a measure to make explicit what is already covered under existing law, as coerced sterilization is already illegal and should never be performed in Canada. We also know that section 45 of the Criminal Code already provides important protections for physicians in emergency situations.
Our concern, however, is about how this bill will be interpreted and applied in real clinical settings. Obstetrics and gynecology can be high-stakes fields where emergencies can unfold in minutes. In the middle of a massive hemorrhage or a ruptured ectopic pregnancy, physicians cannot pause to parse the fine distinctions of the law. Their focus must be on saving the patient’s life.
If there is even a perception that those life-saving actions could later be second-guessed as a potential criminal offence, hesitation becomes a real risk, and the consequences fall on the patient, who may lose precious minutes of care. There is also the concern that if procedures are perceived as criminalized, physicians may step away from offering tubal ligation to women who want one in their regular clinical practices, not just in emergencies.
We have seen how this type of chilling effect has already unfolded in the United States, where legal uncertainty around reproductive health laws has led some physicians to delay or withhold urgent treatment for fear of prosecution. These situations have led to preventable deaths of women in the U.S. If physicians in Canada begin to question whether they could be facing up to 14 years in prison for providing emergency care to a woman whose life may be at risk, this could lead to similar dire consequences here.
Our concern is not with the principle of outlawing coerced sterilization; we strongly support this. It is with ensuring that we do not inadvertently create an environment where physicians feel less secure in providing the urgent care that women need to survive and thrive.
Senators, we share your goal to end the abhorrent practice of coerced sterilization in Canada. We also have a duty to safeguard women’s access to timely, respectful and life-saving reproductive care.
Thank you for inviting us to speak here today. We would be pleased to answer any questions.
The Chair: Thank you. We’ll now move to questions from the senators, and we’ll start on my left with the deputy chair, Senator Batters.
Senator Batters: Thank you to all of you for being here today on relatively short notice. We appreciate your important contribution here.
To the Canadian Medical Association witness, thank you for your opening statement, and I just wanted to say one thing. There was one point when you were sort of thanking the government for proceeding with this important issue. This is actually a private senator’s bill, not a government bill, and it is Senator Boyer, who is here with us today, who deserves the credit. It is not a government bill. I wanted to make that point because she should receive recognition for that.
To the witnesses from the Society of Obstetricians and Gynaecologists of Canada, the last time you testified before our committee on the predecessor of this bill — it was March 20, 2024 — and I have the transcript from that. At that point, Dr. Francœur was expressing similar reservations or perhaps even greater reservations about this bill because of the potential criminalization, because, of course, this is an amendment to the Criminal Code of Canada. But at the time you were testifying, the bill was substantially more wide-ranging and had a lot more potentially concerning elements for you as doctors, and now the bill has been really dramatically pared down. So it is really for a greater certainty to provide, as you were stating, I think, in part in your opening remarks, Dr. Murphy-Kaulbeck — you were more worried about what the implication could be, I think. I guess I wanted you to address that.
Are you recognizing that this bill has been substantially pared down from what it was? Given that, does that make some of your concerns more muted on this one?
[Translation]
Dr. Diane Francœur, Chief Executive Officer, Society of Obstetricians and Gynaecologists of Canada: Thank you for the question. I would say that, unfortunately, any attack on women’s sexual and reproductive rights, however minor, might lead to a replication of what’s happening in the U.S. They started by restricting access to abortion. Now, as we speak, there are women dying from miscarriages because they can’t get gynaecological services in emergency rooms in many U.S. states. Doctors there need to have incontrovertible proof that there is no possibility of life, given that abortion is now criminalized in some states.
When the door is opened even slightly to criminalization, that will affect women’s sexual and reproductive rights. Unfortunately, what we fear is a potential interpretation based on a fear of being charged and going to prison for 14 years. That’s why we’re against the bill. However, as Dr. Murphy-Kaulbeck said, we absolutely oppose sterilization without consent and are taking the necessary steps to make sure it never happens again. We don’t think that having a legislative or criminal component will be a way of stopping it.
[English]
Senator Batters: I’m not really sure why that started off with a comment about abortion and the United States, because, of course, in Canada we don’t have an abortion law and haven’t since, I believe, 1988, when I was in Grade 12.
I understand your concern for a potential slippery slope, but here we have a senator’s bill where she is trying to protect women in that they don’t have this forced sterilization situation. I can certainly understand that all of the people in your field who are doing their jobs appropriately — that’s part of your job to ensure that they are and to take steps if they are not. But at the same time — and I understand you are speaking about a slippery slope — do you acknowledge that this is a considerably different element here that we’re dealing with, and what it’s doing is basically just reaffirming that forced sterilization, sterilization without consent, falls within the aggravated assault provisions?
[Translation]
Dr. Francœur: Let me specify that there is a difference between a planned, elective sterilization and an emergency one. What concerns us are emergency sterilizations. When women are in a precarious medical condition and hemorrhaging…. Their condition is unstable, they could die, they are young and it is their first child. Unfortunately, the only solution after going through all the steps is to perform a hysterectomy after the birth. Hysterectomy is a sterilizing surgery, because she can’t have any more children afterwards.
We know that section 45, in principle, was drafted so that doctors could have the freedom to make decisions without consent, given that the woman is in a life-or-death situation. Obviously, the family needs to be notified, but they are not the ones who decide.
That said, in those critical steps where every minute counts, unfortunately, there will be a step where we wonder if we have made the right decision. Do we risk being charged because we are performing a sterilizing surgery that was not at all intended?
We often go into the operating room and perform procedures before we get to the point of a hysterectomy. We do all kinds of sutures, put balloons or other things in the mother’s uterus so that she can keep her uterus and have a family afterwards. Unfortunately, in 2025, there are still women dying of hemorrhages in Canada.
There is also the example of a burst ectopic pregnancy. When a woman has a burst ectopic pregnancy, it means that the baby is in the fallopian tube. The tube starts to bleed, it bursts and blood spreads through the abdomen. This is an emergency surgery that pre-empts all other cases in the operating room, because women can die of hemorrhagic shock. The treatment is to remove the fallopian tube.
When a woman comes to the ER in an unstable condition, we act right away. We get consent, but it can’t really be called informed consent when someone is in a life-or-death situation. Even though we explain everything that could happen, we do not have time to discuss every detail of the consent, as we would for an elective surgery. Instead, we will take the time required to talk to the anaesthetist, get blood ready and make sure there is an assistant available to help us if we discover something during the surgery. Everything happens really fast. The treatment is to remove the fallopian tube, which is a sterilizing surgery. Do we recommend doing the least possible because we didn’t get consent? No. We go in and remove the ectopic pregnancy. If the fallopian tube is damaged and we don’t remove it, we are back to square one six months later, all because we didn’t get informed consent since the woman we are operating on is in a life-or-death situation.
This doesn’t happen every day, but it happens. In Canada, every woman who dies from a delayed surgery or one that wasn’t done properly due to potential criminal charges is one woman too many. The Canadian Charter of Rights and Freedoms already bans sterilization without consent in cases where consent could not be given or received. However, we believe that colleges of physicians need to assume their responsibilities on this issue and intervene when doctors continue to perform sterilizations without consent. We believe these women. All these things happened. It needs to stop. We agree 100% with you.
[English]
Senator Batters: Just as a quick follow-up on one part that you were mentioning near the end — I was listening through translation, so I want to ensure I understand you correctly — is it your understanding that the Charter of Rights protects women normally from this if this bill were not made law? Is that what you were saying?
[Translation]
Dr. Francœur: Absolutely. I am a pediatric gynaecologist. I have treated disabled children my entire life. I have met desperate parents who asked that their daughter be sterilized because they do not consider her fit to carry through a pregnancy. Every time, we tell them that, unfortunately, if their daughter is not fit to give consent, we cannot perform a sterilizing surgery. That is what we teach.
Senator Miville-Dechêne: Thank you for being with us, Dr. Francœur.
I will take my colleague’s questions a little further. Section 45 does protect you in clear emergencies where the doctor needs to make a decision with no possibility of consent.
The bill as written, despite the additional definition, does not change the substance of the act. From what I understand, we need to put a name to things. Naming sterilization helps women who have not yet come forward to see that the issue is named in the Criminal Code itself. The law is not being changed. Experts from the Department of Justice have mentioned that the law on assault as it stands remains the same.
This is relatively symbolic, while being important. You are opposed to it, while it could help some women understand that they have rights.
[English]
Dr. Murphy-Kaulbeck: I’m going to address one issue that came up before with respect to the example of abortion. I don’t think it’s abortion. I think it’s sexual and reproductive health rights. When we criminalize that for women, then we often see that there is a withdrawal of care. I just wanted to clarify that.
Senator Miville-Dechêne: I’m talking about —
Dr. Murphy-Kaulbeck: No, I know. I just wanted to clarify earlier on that. It’s women’s health, I think, that we’re more concerned about.
[Translation]
Dr. Francœur: We need to see the forest, not the trees. We are worried about a slippery slope. I have to say that since we were here in the spring, the situation in the U.S. has degenerated. Criminalization has become part of women’s sexual and reproductive rights. I clearly understand that we need to inform women and explain to them what sterilization means. Many women have contraindications for hormonal contraception or can’t have an IUD, so their only choice is sterilization or abstinence. We want to be there to better serve them. That said, we need to look at the downside of a potential slippery slope in sexual and reproductive rights that will lead to delays. We may not want to compare ourselves to what is happening in the U.S., but when medical decisions are criminalized, we will think twice. These delays will have a negative effect on women’s medical care.
Senator Miville-Dechêne: I don’t agree with you at all about the slippery slope to the U.S. Our system and our laws are quite different. I understand that it supports your argument, but we’re not in the U.S.
[English]
Senator Prosper: Thank you to the witnesses for informing this very important dialogue on this very important subject.
My question is just in terms of clarity. I’m grateful for the dialogue that just took place. Is it your opinion that section 45 does not provide enough protection for physicians to warrant them to undertake those necessary procedures, subject to this bill?
For example, do you think that this chilling effect amongst physicians could be mitigated by knowing the full breadth and substance of section 45 within the Criminal Code, to help offset that chilling effect and the slippery slope that were just outlined?
[Translation]
Dr. Francœur: Section 45 should be used sparingly, in the sense that even though doctors cannot be charged, there still need to be recommendations for emergency procedures even when informed consent could not be obtained. In obstetrics, everything goes well or everything goes badly. You go into a room and you may not have seen the woman in labour yet because she started bleeding suddenly. She just arrived an hour before, the nurse is evaluating her while a delivery is going on in a different room. Unfortunately, the delivery room is an unusual care environment, where you are always between joy, life and death. Something goes wrong, the baby is not doing well, and so on.
In terms of section 45, we are glad that it contains some protection for medical decision-making. However, we always have to try to explain things and gain the trust of someone we met five minutes before we have to tell her she is bleeding, her condition is unstable and she might die. We tell her we are going to the operating room to put in stitches to try to save her uterus, but we may have to do a hysterectomy. That is not informed consent, it is a horror film for her.
We understand the intention. However, doctors will still have to justify themselves. All these situations will obviously be discussed. Hospitals have medical procedure evaluation committees where these situations are reviewed to ensure that the minimum has been done. We are asked if we met with the family to explain things to them and if we sent an intermediary to tell them what is going on. We are always trying to improve our practice. Unfortunately, these situations occur.
We feel that section 45 is full of good intentions. The fact remains that in a situation where, for example, doctors haven’t had a chance to meet the patient or her family because they were held up, there could be delays in the timely care that is required. While it might not cause a death, it could lead to multiple transfusions or more extensive surgeries than were planned.
[English]
Senator Prosper: Thank you for that elaboration. Given what you just said, Dr. Francœur, do you see informed consent as part and parcel, as a necessary condition, within section 45? Is that what you’re saying — that when we consider section 45, you must have that additional requirement of informed consent?
[Translation]
Dr. Francœur: In a medical emergency, we can’t always get informed consent. I’ll give you an example of a clinical situation that happened to me last year. A new immigrant from India spoke an ancient language similar to Punjabi. We tried in vain to find interpreters. She was in pre-term labour and the baby was premature. I couldn’t cut open someone’s belly without being sure that she understood what I was about to do. We finally found an interpreter in Vancouver. Everyone got on the phone so we could at least tell her what was happening. Her baby was premature, she had a placental abruption and she was bleeding. Her condition put her at great risk.
There is no profession where the practitioners are perfect. Most obstetrician-gynaecologists will take care of women and be very attentive when explaining what is happening. Situations always arise where we can’t be sure that the person in front of us has understood the consequences, and we don’t have time to explain further or delay the procedure.
[English]
Senator Boyer: I just want to continue on with that a little bit. Are you saying that informed consent is part of section 45?
[Translation]
Dr. Francœur: No. In any case, when we inform someone about a procedure, depending on the urgency, we will obviously explain the consequences. From what I understand, section 45 is not intended as a protective measure. It does ensure that we won’t be sued every time there isn’t detailed, informed consent due to the situation’s urgency. I’m sorry if I misunderstood your question.
[English]
Senator Boyer: Bill S-228 targets only sterilizations without free and informed consent. If the patient initiates the request and valid consent is obtained, physicians don’t have anything to fear. Section 45 still protects doctors who are acting in good faith in emergencies. That’s the key reason this committee amended and simplified the original bill, Bill S-250, from last year.
I have another question. What are the chances of having an ectopic pregnancy in both tubes? You had mentioned ectopic pregnancies in tubes. That would leave the patient sterile, but doesn’t it usually happen in just one tube? You don’t have them two at a time, in both tubes.
[Translation]
Dr. Francœur: Yes, but most of the time, an ectopic pregnancy occurs in the better tube, because the other one is blocked. That’s why the pregnancy occurs in the one that’s less sick, so to speak.
[English]
Senator Boyer: So it could possibly leave somebody sterile?
[Translation]
Dr. Francœur: Yes, absolutely.
[English]
Senator Boyer: It could. Have you heard about Katy Bear? The CBC did an article about Katy Bear who was sterilized against her will when she was 21 years old. She had an ectopic pregnancy 20 years later, and she had her tube removed. It was an eight-week ectopic pregnancy, so it was very much an emergency surgery.
At the same time, the doctor who assisted her in this emergency procedure knew her background, knew that she had had a tubal ligation without consent 20 years before. They talked about it after, and she had a tubal reanastomosis; the clip was removed. She had less than 5% chance of having a baby, and she did. Baby Sage was born in March.
Not everyone has double ectopic pregnancies and is left sterile. I just want to make that clear. Usually it occurs in one tube, and it doesn’t always leave somebody sterile.
[Translation]
Dr. Francœur: You’re absolutely right. However, we can’t know without seeing the condition of both tubes. Obviously, the first choice is the conservative treatment, which is to remove only the ectopic pregnancy and not touch the other tube.
[English]
Senator Boyer: I have one more thing I’d like to talk about. You said Bill S-228 would have a chilling effect, and doctors in emergency surgery would be thinking about whether they should do it or whether they will be subjected to it. But we already have assault provisions in place. We have section 45 in place. Do they say the same thing about the assault provisions that are in place?
Dr. Murphy-Kaulbeck: I think it comes down to the criminalization aspect and having that be so explicit. As we said right from the beginning, we disagree. It is not right. Where we’re coming from is that there is such a lens now on women’s sexual and reproductive health rights. This is something that will bring even more spotlight.
The other thing is that we know, physicians know when they obtain informed consent what that includes, but we recognize more needs to be done, no question. We have section 45, and we know it is illegal to do this. But there needs to be such an opening up of public education and, more particularly, physician education. What is informed consent? How do you actually get that? In many places — well, in all places now — there’s what is called “time out.” It’s like an airline checklist. One of the things that you need to ensure before you move forward in anything is that you have that signed and done.
There needs to be more education, like I said. We need to look at our colleges as well. What is their role in this? There are 10 colleges in the provinces and 3 in the territories, and we’re not hearing from them on this. They are actually the bodies that should be addressing these issues that we’re speaking about from that perspective of physicians doing what is wrong and illegal.
For me, as I said, women’s sexual and reproductive health rights are front and centre in many things now. We want to make sure we protect that access for women but that we also address all the things that need to be addressed in the informed consent process. We must work with women, particularly Indigenous women, to make that happen. We must sit down and go through this and ask what we need to ensure that all women are protected and cared for in the way that they should be.
That is part of it, this lens on women’s sexual and reproductive health rights. Again, this is something that potentially causes a withdrawal of access or a question of access for women.
Senator Boyer: Okay. Thank you.
Senator Simons: Thank you very much to all three physicians for being here today. I share very much your concerns about what happens in an emergency situation if doctors are second‑guessing themselves, even if they have the news stories from the United States in the back of their minds. Granted, this is not the United States, but if you’re taking a moment to pause to think whether you’re going to be criminally charged, it’s very different than thinking about maybe facing sanctions from the college.
I want to talk about a different kind of chilling effect. I am old enough to remember hearing stories from my mother-in-law. When she sought a tubal ligation after five babies and seven pregnancies, she was required to get a psychiatric exam. When my own mother sought a tubal ligation a couple of years later, she was required to get a signed letter of consent from my father, something she never let him forget.
I worry that in our very-good-faith efforts to try to protect Indigenous women, we may be reducing access for Indigenous women and other women to necessary gynecological health care. I worry that doctors may be disinclined to provide tubal ligations to women who ask for them, disinclined to recommend hysterectomies for women who are suffering from gynecological conditions where a hysterectomy could be therapeutic. They may be very disinclined to offer gender-affirming care if there is a concern that six months later the patient could come forward and say, “I didn’t really understand. I really regret my decision. I wasn’t properly informed.”
Could you speak to my larger concern about whether doctors might be more likely to hesitate to offer or provide therapies if they’re concerned about criminalization over what are basically routine medical procedures?
Dr. Murphy-Kaulbeck: Thank you for those points. I do agree. That was one of the points I made in my statement. Again, I hate to keep going back to it, but when you criminalize something, it takes on a completely different lens. Quite truthfully, in having discussions, there are physicians who will step away from offering tubal ligations based on the fact that there is nothing else in medicine that could possibly end in a 14‑year prison sentence.
Again, when you put that criminal lens over it, it causes physicians to really pause and move away. We alluded, again, to the U.S. where that is what is happening. Women are coming in with ectopic pregnancies, but doctors will not help them if there’s a fetal heartbeat because it’s criminal for them to do so.
When you put that lens over it, you will see physicians step away and say, “No, I’m not going to do this anymore because I can’t take that risk.” This is where I go back to that informed consent and what we need to do to improve that so that the public — women, particularly Indigenous women, and physicians — are all reading from the same page. They all need to understand what that consent is and what the safeguards are that we need to put in place so that when we move forward and that procedure happens, everyone involved — not just the physician, not just the patient — everyone who’s in that operating room or wherever it’s taking place understands that everything on this checklist has been covered and that consent is obtained, yet again, before the procedure is started.
The criminalization of anything puts a completely different lens on it, and I do worry. Doing the work that I do, I have seen the devastating consequences of the criminalization of some things in the U.S. Women are dying. I think access to this procedure and possibly others will go down.
[Translation]
Dr. Francœur: You’ve raised a very important point: the disinformation that is, unfortunately, circulating right now. Women have so much trouble accessing our health system that they often turn to social media for information. Let us tell you that Mr. Trump has caused us some headaches with this Tylenol business.
We are forced to take this position to reassure women in Canada, because some are against vaccines or pregnant women taking Tylenol. For the first time ever, the Society of Obstetricians and Gynaecologists of Canada, or SOGC, gave around 35 interviews over the last three days to reassure women that they can take Tylenol if they have a fever.
To come back to gynaecological problems, with what women hear on social media, they will be very frightened of being sterilized without being told. Suddenly, they will have doubts. They will often delay some procedures. Black women, for example, have three times as many fibroids as white women. Fibroids cause bleeding. These women will miss work. They will have anemia and need transfusions. They may not be functional out of fear that they will have surgeries performed on them without consent, whether sterilizing ones or not.
Unfortunately, this is where it happens. We work with the uterus and fallopian tubes, and it is very hard to separate each of the anatomical parts.
Unfortunately, when women start having doubts because they were given false information and doctors start fearing criminal charges, it is the perfect storm for women to be left alone with their problems and no solution. I think we could provide better care to women in Canada.
Senator Simons: Thank you.
Senator Saint-Germain: I’d like to thank you three for being with us.
I note that in our conversation this morning, there has been some confusion about understanding the bill. Section 45 exists for medical emergencies and already protects physicians.
What Bill S-228 adds is to ensure that the rights of women who have suffered abuse during medical procedures that were not necessary, urgent, or respectful are respected, and that the free and informed consent of female patients is ensured — and I would add male patients, because we are also covering human reproductive rights. So what the bill adds is respect for women’s rights; at the same time, it implies — and you both mentioned this — that it is necessary to educate women and all humans about their reproductive rights, and it also informs physicians on the protocols so that when they need to require free and informed consent, they know what it is and how it can be done in their practice.
I don’t want to get into medical examples; that’s not my angle. I’ll give an example mutatis mutandis. Medical assistance in dying was quite complex. You know this because you were involved in the discussions; I was in Quebec at the time, too. We agreed that it was important to have training and protocols in place. It’s a major issue.
Suppose the bill is passed and comes into force: How do you think the College of Physicians and the Canadian Medical Association could usefully contribute to ensuring that physicians understand that they have protection and ethical obligations — reference has been made to the highest medical standards — and that they can practise medicine well without fear of criminalization, while being aware of their rights and obligations with regard to respecting patients’ rights?
Dr. Francœur: Thank you for that question. Senator Boyer knows my answer, because we approached her. Dr. Murphy-Kaulbeck was talking about time-out, which is a procedure prior to surgery. All of this stemmed from the fact that surgeries were done on the wrong leg, for example. They are safety nets. We think we can do the same thing with all sterilization surgeries. It’s easy; we just need funding so we can make videos in all languages so that women can understand the procedures in their own language. We just need some rules: sterilization must never be carried out if it has not been discussed during pregnancy; there must be clear notes in the file; the woman must reflect on it and revisit the issue at a subsequent visit; the procedure must be discussed again on the day of sterilization during a Caesarean section.
These things are possible, but they must be done on a large scale with women. You know, we talk a lot about First Nations women because they have been the biggest victims — and we know these things happened — but we have to find ways to stop this from happening again to any woman in Canada. We have a language problem in our country. Sometimes, consent is obtained from a child because no one speaks the language.
We need to have these standardized tools from one province to another, and they will have to be applied like the time-out, which is one of the measures reviewed when Accreditation Canada visits hospitals. It has to be in operating rooms.
Senator Saint-Germain: Would you agree, then, that if the legislation is passed, if these protocols are applied nationwide, and if women are better educated about their rights, the impact of the bill will be to prevent as much as possible the documented situations we have seen?
Dr. Francœur: I would like to say that I hope all of this will eventually be implemented, even if the legislation is not passed, because it is truly essential and necessary.
With all these women who have suffered and shared their stories and their personal lives, we can no longer pretend that the problem did not exist. This is the third time we have come to testify. We need to come up with concrete solutions. For us, criminalization is not the only solution.
Senator Saint-Germain: Thank you very much.
[English]
The Chair: Dr. Burnell, Senator Saint-Germain mentioned the Canadian Medical Association. Do you have any comment on the issue that she’s raising about protocols and education and the role of the Canadian Medical Association?
Dr. Burnell: Thank you, Mr. Chair. First of all, I would like to thank Senator Batters for her correction on the information and Senator Boyer for her work on this.
The CMA supports this new bill. I think it’s the first step in recognizing the issue. As a physician, I’m sensitive to what has been raised by my colleagues. The most important step, if this bill should become legislation, is really the education and training of all of our staff and discussions with our patients to build that trusting relationship. We may need to expand the least common side effects or possibilities when we’re doing that, just to make sure that we’re comfortable, that the patient and the loved ones with them are there. That really is starting the dialogue and empowering women to make choices, to be involved in the discussion, and that we respect their ultimate decision.
The Chair: Dr. Murphy-Kaulbeck, would you like to make a comment?
Dr. Murphy-Kaulbeck: Just one comment. I think it needs to be said that regardless of this legislation, whether it passes or not, there’s a need to follow through on all the things that we’ve discussed today.
I put that out there that regardless of where this legislation goes, we need to work with our partners on this, like I said, regardless of whether it goes or not. I think that message needs to be very clear to all, as well as the colleges and the CMA, that we all have a role in this. I would just say that from the perspective of the SOGC, we would prefer to go forward doing that without the criminalization, given the discussion today and what some of the potential fallout is from that. Thank you.
The Chair: Thank you. I’m going to exercise my discretion to make sure all the questions get answered.
Senator Pate: Thank you to all of our witnesses. My question is for Dr. Francœur and Dr. Murphy-Kaulbeck, but I’d also be interested in Dr. Burnell’s perspective on this.
This issue and the rationale for bringing forth this legislation are very clearly rooted in historical and ongoing discriminatory attitudes and practices by the medical profession. At the root of that is clearly racism. We know that this has happened to Indigenous people but also other racialized folks, particularly those of African descent, as well as those with mental health problems and other disabilities, poor people and — in an area in which I’ve worked a lot — in prisons. We know that’s at the root.
You’ve been very clear about why criminalization is not the answer. That’s often the position that I put forth in many issues because from where I sit, we often see criminalization resulting in a lawyering up of not just professional bodies and individual doctors but also those whose aim is to protect, not necessarily for good reason, these kinds of discriminatory practices.
If you were in the position of Senator Boyer, what would you be proposing at this stage? That question is for both groups.
Dr. Francœur: We met with Senator Boyer many times, and we know where her heart is. Ours is not so far. It’s just about how we’re going to get to the same goal and be able to reach a consensus.
I’ll give you an example. What will be the limit? I’m a pediatric gynecologist. The most common cancer in teenagers is leukemia. What happens when you have chemo? Dr. Burnell knows because she is an oncologist. Your ovaries are done — not always but in many cases. What are you going to do with these young women? You just think about surviving. Then you get older and realize that you can’t have a baby because your ovaries do not function after chemo. So it’s not surgery, but it’s a sterilizing medical treatment. Where was the consent? She was a child; you saved a life.
When we talk about criminalization, where is the limit? Where does it stop? From my perspective, it’s opening traps that are going to put a lot of doubt in many women that there was no other way. We’ve seen this situation, and it’s really hard to kind of go back and unknit all the history. It’s totally different from what happened with Indigenous women, but it’s going to have an impact, too. That’s why we are recommending no criminalization. Nevertheless, we have to find a way to make it stop.
We think that education and standardization, making it part of the hospital how-to is important. This is what accreditation in Canada is doing when they come. They ensure people wash their hands properly, et cetera. Rights and consent should be part of all these decisions because the reality is that when you sign informed consent — I don’t know how many lawyers are in this room — you have two pages of fine print that most people don’t understand. We call it informed consent, but if there were a test after you signed it, a lot of people would fail because they didn’t realize what they were signing.
The consent is more to see what the procedure will be and what the consequences will be after.
Dr. Murphy-Kaulbeck: I can keep it on a very simple level. I would want us to move forward with many of the things that we had put forward with truth and reconciliation. I would hope, again, regardless of whether we move forward with criminalization or not, that we take a step back and determine what we need to do. What do we need to do as physicians? What do we need to do as society, the public and the government to address this issue but also all of the other issues that we’ve talked about today?
If we move forward with criminalization — and that’s our hammer — but we don’t put anything else in place, I think we’ve failed everyone. We truly need to address all of the things that we have talked about over the course of time in truth and reconciliation. If we criminalize and leave it, we haven’t fixed anything. We’re still in that place where we haven’t actually sat down and talked about how to right these wrongs. How do we work with Indigenous groups, marginalized groups, all women and people and determine how we fix this? Criminalization is just going to be for those rare cases; it doesn’t fix that systemic problem.
I see it more — criminalization or not — as just one part of this. We have to address all of the other things that we’ve brought up today. Thank you.
Senator Pate: Dr. Burnell, you’ve spoken in favour of this. The provisions already exist in the Criminal Code that criminalization could have occurred and has not. I have the same question but, in addition, how do you see this changing that practice at the prosecutorial and other levels?
Dr. Burnell: Thank you. We support this legislation, and I think that this new amendment helps to deal with the previous concerns. I would fully support the fact that there needs to be those other processes of discussion, education and creating culturally and psychologically safe spaces for individuals to discuss this.
Many of these decisions are foreseeable, and what the other physicians are concerned about are really the emergencies where they may not anticipate that. We feel that commenting on the section 45 exemption provides those safeguards.
Senator Pate: Thank you.
Senator Clement: Thank you, doctors, all of you, for your careers, not just for being here but for the work that you’ve done.
I fully endorse Senator Saint-Germain’s question about training. I wanted it to go further. We’re often at this committee criminalizing things because there is no trust. Black women and Indigenous women don’t necessarily have trust in our institutions that are there to protect us, so we need full transparency in terms of the training that is actually being done now. Is it current? Are you trained in medical schools? Are you trained to keep up with the legal challenges that are being posed today, at this very moment? There has to be clarity and transparency with communities and with the general public so that we have trust. Otherwise, this is the process that we have to address issues, which is to go to the Criminal Code.
Dr. Murphy-Kaulbeck: I can comment, and I think it goes back to what I said earlier.
As far as the training goes, as we had said, we need to improve that not just in obstetrics and gynecology but with the overall process of obtaining informed consent. I think medical assistance in dying has helped us with that because that is one where there are sober second thought and all kinds of things about that.
Going back to why we’re here today, if we’re going to do training and we’re going to look at informed consent and how physicians — not just physicians but other allied health professionals — obtain informed consent, I think we need to strip that down. I think we need to start and say, “Okay, what has led us to this?” That would be that we haven’t had those conversations. We haven’t brought in those groups that we need to and said, “Let’s work together.” I think that’s the biggest thing about what I bring today, which is that we need to break down the barriers, and we need to actually have those conversations. We actually need to look at our training.
I will say that in medical schools this is coming much more to the forefront, but it needs to be within the entire system, and it needs to be through the trajectory of my career. If I learned it in medical school, but here I am — I won’t say how old I am — I still need to go at that. I still need to have that CME, that is continuing medical education.
That’s where I think we need — and I’ll stress this again — to bring in our partners, the women that we actually care for day after day, and determine how to work together. What do we need to improve this so that we are all on the same page and we all understand one another and where we’re coming from when we do this process?
I think, again, irrespective of this bill, these are things we should be doing anyway. We should be having those conversations and bringing our partners into the process. The SOGC is moving forward with this, but there is a lot of work to be done, and it can’t be done by just one group. It has to be within the system itself.
Senator Clement: Not just should, but must be done.
Dr. Murphy-Kaulbeck: Must be, absolutely.
Senator Clement: Thank you for that.
Dr. Francœur: The SOGC has an international project, and we have an education program that we give in Africa, in Haiti and around the world called ALARM, and we have tried so many times to have the support to do ALARM in the North with the community because it is training with all the health care providers — the midwives, the nurses, the community, the Elders — but when are they going to implement it here?
Most of this focus is on respectful care in the labour and delivery room and how you should be treating women. We’re more successful sometimes in countries where women have barely any rights. Here, in our country, we just kind of push it to the side. We need to put it under the spotlight.
The Chair: Thank you. Dr. Burnell, did you want to make any comment on the question of Senator Clement?
Dr. Burnell: I would suggest that this legislation is really the last safeguard in a process, and I would agree that education, training and discussion amongst all of our women, their choice and their understanding, are critically important.
This was proposed by Senator Boyer because she had so many patients bring this to her attention, and I would hope that if it were passed, it would never be used because we’ve done such a good job in providing education, discussion and building those trusting and safe spaces.
The Chair: Thank you.
Senator K. Wells: My questions have been answered. Thank you to our witnesses for the very informative dialogue from everyone and our colleagues.
The Chair: I think we all share Senator Wells’ comments. Thank you very much, witnesses, for participating here today and informing our committee on this important issue.
Colleagues, as you know, the work plan stated that we’re now going to move to clause-by-clause consideration of the bill. I want to say at the outset that as a matter of practice, the committee generally prefers to dedicate a full meeting to clause‑by-clause consideration of bills. In this instance, however, the circumstances are special, and the steering committee has recommended that we proceed with clause by clause. We don’t believe this will set a precedent, given that the committee has already studied this bill and reviewed a previous version of Bill S-228, Bill S-250, during the last Parliament.
Senator Batters raised this issue, and we had a good discussion, so unless there is any objection, we will now move to clause by clause. I see none.
We’ll move as follows: Since it’s been a while since we conducted clause by clause, I would like to remind senators of a number of points.
First, if at any point a senator is not clear where we are in the process, please ask for clarification. I want to ensure that at all times we have the same understanding of where we are at in the process.
Second, in terms of the mechanics of the process, when more than one amendment is proposed to be moved in a clause, amendments should be proposed in the order of the lines of the clause.
Third, if a senator is opposed to an entire clause, the proper process is not to move a motion to delete the entire clause but, rather, to vote against the clause as standing as part of the bill.
Fourth, some amendments that are moved may have consequential effects on other parts of the bill. It is therefore useful to this process if a senator moving an amendment identify to the committee other clauses in the bill where the amendment could have an effect. Otherwise, it would be very difficult for the members of the committee to remain consistent in their decision making.
Fifth, because no notice is required to move amendments, there can, of course, have been no preliminary analysis of the amendments to establish which one or ones may be of consequence to others and which may be contradictory.
Sixth, if committee members ever have a question about the process or about the propriety of anything occurring, they can certainly raise a point of order. As chair, I will listen to the argument and decide when there has been sufficient discussion of a matter or order and make a ruling.
Seventh, the committee is the ultimate master of its business within the bounds established by the Senate, and a ruling can be appealed to the full committee by asking whether the ruling shall be sustained.
Eighth, I wish to remind honourable senators that if there is ever any uncertainty as to the results of a voice vote or a show of hands, the most effective route is to request a roll-call vote, which obviously provides unambiguous results.
Finally, senators are aware that any tied vote negates the motion in question.
Are there any questions about what I’ve just said in the previous nine points? No? If not, we can now proceed.
Senators, we’re now moving to clause by clause of Bill S-228. Is it agreed that the committee proceed with clause by clause?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1 carry?
Hon. Senators: Agreed.
The Chair: Shall the preamble carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill carry?
Some Hon. Senators: Agreed.
The Chair: Does the committee wish to consider —
An Hon. Senator: On division.
The Chair: On division? Okay. Does the committee wish to consider appending observations to the report?
Senator Pate: I thought, because of these last witnesses, that something around the need for better education processes for the medical profession and through the colleges of physicians and surgeons, but I did not work on wording, so I am at the mercy of the committee. I think something to that effect would be helpful, given the evidence we heard.
Senator Batters: One option, instead of having it be an observation to this committee’s report, is it could be just simply noted in someone’s speech or even in a question if a senator doesn’t want to make an entire speech, but Senator Boyer, no doubt, is going to make a speech. Then, perhaps, someone wanting to raise that issue could bring it up in debate and ask a question about that or make a comment asking for Senator Boyer or whoever else — I’m sure the critic of the bill, who I think is Senator David Wells, could ask. That could be part of it, too. It doesn’t necessarily have to be an observation to be part of the proceedings.
The Chair: Do you have any further comments, Senator Pate?
Senator Pate: No. I didn’t prepare it in advance, so I will accept that.
The Chair: We won’t have any observations.
Is it agreed that I report this bill to the Senate, in both official languages?
Hon. Senators: Agreed.
The Chair: The steering committee has met, and I would like to put on the table now the idea that I present a general order of reference for this committee at the very next sitting or the first available opportunity.
Do you want to see this, or do you want me to read it? It’s standard. I would move:
That the Standing Senate Committee on Legal and Constitutional Affairs, in accordance with Rule 12-7(9), be authorized to examine and report on such issues as may arise from time to time or relating to legal and constitutional matters generally; and
That the committee submit its final report to the Senate no later than September 3, 2029.
Is everyone in agreement with that?
Some Hon. Senators: Agreed.
Senator Batters: Could you explain why we would do such a general order of reference? It’s not something that the Legal Committee usually does, usually because we don’t have time to do such things.
The Chair: It’s in recognition that there may be issues that will come up that deserve study. Senator Batters, you mentioned one, the report of the elections officer. In times past, those reports have been dealt with in the committee by calling the Chief Electoral Officer of Canada to comment on reports about previous elections, as an example. It gives the committee a wide berth to examine issues. Of course, there would have to be agreement by the steering committee and the whole committee on anything.
Senator Batters: Do you want someone to move that our committee accept that?
The Chair: It would be nice if you moved that.
Senator Batters: Yes, I will move that.
The Chair: It is moved by Senator Batters that this motion that I’ve discussed be agreed upon by all of our members and I take action on that motion.
Hon. Senators: Agreed.
The Chair: Honourable senators, that brings to a close what we’ve intended to do today. I believe we know that we want to discuss future business, potential studies that the committee may undertake, but we haven’t taken any action on that, pending any issues that members of this committee wish to put forward as studies. We’re not in a position to have a discussion about that today.
Senator Miville-Dechêne: I want to say that I’ve sent to all your offices two tables that I’ve done for the study of Bill S-209, which is supposed to start next week, one on the changes in the bill — I’ll explain — and another one on the international comparison between countries. You will have that in your inbox this morning.
Senator Saint-Germain: Mr. Chair, I have a question regarding the process. Shouldn’t those documents be sent through the clerk of this committee?
The Chair: The clerk advises that he had sent some of these in the past, but he’s going to resend them to everyone today.
(The committee adjourned.)