Honourable senators, I rise today to speak to Bill S-228, An Act to amend the Criminal Code (sterilization procedures).

This is not an easy speech for me to give. We just finished marking the National Day for Truth and Reconciliation, which is about more than orange T-shirts and more, even, than about the memory of those who survived residential schools and those who did not. It is supposed to be about exposing the truth of generations of violence and trauma inflicted on First Nations, Inuit and Métis Canadians. It is about accepting that truth, and it is about finding meaningful ways in the here and now to make amends and to break down the existing structures of systemic racism and oppression that persist today, in spite of all our land acknowledgements, all our brightly coloured T-shirts and all our promises.

Part of that journey of reconciliation means reckoning with the abuses that Indigenous Canadians have suffered and continue to suffer in our medical system, including — though certainly not limited to — abuses related to reproductive health care.

I cannot begin my analysis of Bill S-228 without acknowledging the extraordinary, visionary and courageous leadership and work of our friend and colleague Senator Yvonne Boyer who has dedicated so much of her professional life to exposing cases of Indigenous women and other racialized and vulnerable women who have been sexually sterilized against their will or without their full and informed consent. She has brought to this work her knowledge and experience as an operating room nurse, as a lawyer, as an investigator and as someone who is willing to listen and to hear. She has earned the trust of Indigenous women across the country, creating a safe way for them to speak — often for the first time — about their sense of trauma, betrayal and loss.

Her bravery, her patience, her compassion and her determination should inspire and humble us all. Bill S-228 is more than just another Senate public bill. It is her passion project and represents the culmination of her promises given to all those women that she would seek justice for them and protect all those who came after them.

I also want to thank and acknowledge Senator Gerba, who shared her own deeply personal pain with us, talking so courageously and passionately about her own experience with racism and misogyny and the way she was sterilized without her consent and understanding.

How, then, can I find the courage myself to raise concerns about this bill because — I confess — I feel more than a little awkward standing here and standing in the way, however briefly, of all the good work that Senator Boyer seeks to do with this legislation.

In the end, I’ve decided that I have to stand here because before we vote, I wanted to share some of the concerns that legal scholars and medical experts have raised about this legislation, which seeks to do so much good but which may have unintended consequences for thousands of Canadians, including Indigenous women who wish to make their own choices about their reproductive autonomy.

Bill S-228 looks simple enough. It defines a sterilization procedure as:

. . . 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 . . . .

And it is defined as a form of aggravated assault punishable by up to 14 years in prison.

If you just read section 268 of the Criminal Code, which Bill S-228 seeks to amend, you might assume that all sterilization procedures were illegal, even if the patient consents to them or, indeed, seeks them out. But this amendment has to be interpreted in light of another earlier section of the Criminal Code, which is section 45. It 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.

This might seem to protect any surgeon or other medical professional who carries out a sterilization procedure in good faith or during a medical emergency from criminal liability. And yet the Standing Senate Committee on Legal and Constitutional Affairs heard from expert witnesses, both via testimony and via written brief, who raised serious concerns about, among other things, the chilling effects that Bill S-228 could have on the ability of Canadians to get reproductive or gender-affirming care.

The National Association of Women and the Law put it this way in their recent brief to the Legal Committee:

One of the most dangerous aspects of Bill S-228 is that it moves sterilization out of the realm of healthcare and into the realm of criminal law. Like abortion, permanent sterilization (when done with consent) is healthcare and should be regulated as such. As soon as sterilization falls under the ambit of criminal law, it becomes easier to restrict access to it.

Now, maybe I’ve read The Handmaid’s Tale too many times, but I fear a future when a different government could use these provisions as a way to start to prevent women — and men — who wish to have reproductive control over their own bodies from getting that care.

In the shorter term, the association also raises the concern, which I share, that some doctors may simply stop offering or providing such care for fear of prosecution or even just fear of investigation. And, they argue, the bill’s very wording may mean that the most vulnerable women will be the ones least likely to get the care they need and desire.

Let me quote again from the association’s September brief:

A related concern is Bill S-228’s potential reinforcement of paternalism and sexism in health care. For example, physicians may not take a woman’s consent to permanent sterilization at face value and may require the presence of witnesses or multiple verbal and written affirmations. This ignores the reality that some women experiencing family violence, especially those experiencing reproductive coercion, may wish to undergo permanent sterilization without informing their partner or families. It could also be seen as a value judgment that discourages women from accessing this type of care. . . .

Ironically, then, it may be Indigenous women, immigrant women, women in abusive relationships who may be most hurt by Bill S-228.

How much harder will this make it for any First Nations, Métis or Inuit woman or any woman of colour who sincerely wants a tubal ligation or hysterectomy to get one in a timely fashion?

The National Association of Women and the Law also raised a concern in their brief that no witness, alas, raised in our hearings on the bill. Section 45 of the Criminal Code, they note, only protects people who perform surgeries, not physicians who might deploy other therapies that could end up causing sterilization as a side effect.

They note that certain medications, like chemotherapy and hormone therapy, may result in infertility later in life. It is possible that physicians may hesitate to prescribe such treatments out of fear of later prosecution.

And that leads to one of the other concerns about the bill, its potential inadvertent impacts on gender-affirming care for trans patients. Allow me to quote again from the association’s brief:

Anti-trans activists often point to the loss of fertility as a key reason for denying gender-affirming minors, describing it as mutilation and maiming. Additionally, they use the rhetoric of a so-called “transgender agenda” to suggest that parents and physicians are coercing or pressuring children and adults into becoming trans.

In this context, Bill S-228 may empower governments, particularly in provinces that are already attempting to restrict access to gender-affirming care, to prosecute physicians by claiming that gender-affirming care amounts to forced/coerced sterilization. Even if such prosecutions are unsuccessful, it could result in a chilling effect where fewer physicians offer this type of care due to the risk of prosecution.

Speaking as a senator from Alberta, this is a very real concern in a time when my own province is considering invoking the “notwithstanding” clause to deny Charter rights to trans Albertans. How might Bill S-228 be weaponized in an assault on the health and privacy rights of some people in provinces such as Alberta? I think it is extremely unfortunate that our committee never heard from any witnesses from the trans community, either in our hearings on Bill S-228 or in the hearings on its predecessor, Bill S-250.

But it wasn’t only the National Association of Women and the Law who sounded concerns over this bill. We also heard passionate testimony from doctors, specifically from the Society of Obstetricians and Gynaecologists of Canada. The society’s president, Dr. Lynn Murphy-Kaulbeck, told us this when she spoke to the Legal and Constitutional Affairs Committee last week:

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. . . .

Dr. Murphy-Kaulbeck compared the possible risks of Bill S-228 to the disastrous consequences of criminalizing abortion in various American states in the wake of the U.S. Supreme Court’s striking down of Roe v. Wade. Doctors in states there have let women suffer and even die in the delivery room for fear of violating the law.

Dr. Murphy-Kaulbeck raised concerns that doctors here may similarly hesitate to take immediate action to save a life for fear of a criminal inquiry. She said:

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.

Dr. Diane Francœur, Chief Executive Officer of the Society of Obstetricians and Gynaecologists, offered a concrete example of what can happen in a delivery room in a crisis when a woman who spoke no English needed urgent care, and doctors struggled to explain the situation to her and to get her consent. I will do my best to quote Dr. Francœur’s testimony in French, since we don’t yet have an official translation.

She said the following:

In an emergency, you can’t always get informed consent. Let me give you an example of a clinical situation I encountered last year. A new immigrant arriving from India spoke an ancient language that resembled Punjabi. We tried in vain to find interpreters. She was in pre-term, premature labour. I couldn’t open up someone’s belly unless I was sure that she knew what I was going to do. We finally managed to locate an interpreter in Vancouver. Everyone jumped for the phone to at least be able to tell the patient what was going on. Her baby was premature, the placenta had become detached and she was bleeding. Her condition put her at all sorts of risks.

In this case, Dr. Francœur took extraordinary efforts to obtain consent. But what if she had had to act without it? In such a life‑and-death moment, we surely don’t want physicians, paralyzed by indecision, putting at risk the health and indeed the life of a mother or a child.

The damage that forced sterilization does, the pain it causes — these things are real and profound, as are the racism, classism, ableism and the misogyny that allow it to continue.

But criminalizing a basic medical procedure that tens of thousands of women need every year is a very blunt and brutal way of solving a profound social malaise that has more to do with power, bias and ignorance than with the mens rea required to sustain a criminal conviction.

I’ve laid out some worst-case scenarios if doctors start to be prosecuted. But there is another scenario in which this bill is ineffective because charges are never laid, because Crown prosecutors don’t see a reasonable likelihood of conviction. Then what have we done to deal with the underlying causes that lead to these abuses?

Let me quote again from Dr. Murphy-Kaulbeck’s testimony before our committee last week:

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 can’t put it better than that.

My gratitude goes to Senator Boyer, to Senator Gerba, to Senator Wells and to all the members of the Standing Senate Committee on Legal and Constitutional Affairs, past and present, who’ve worked so hard on this important piece of legislation. And thanks to all of you for allowing me this opportunity to put these concerns on the record. Hiy hiy.

I would.

Senator Boyer, I’m sorry, but the time allocated for your speech has expired. Are you asking for more time to listen to the question and answer it?

Yes, if I could.

Is it agreed?

There is a twofold answer to that question. We still have sterilization because many women seek it out, as it’s necessary that they have reproductive autonomy over their own bodies. I fear that we’re going to create a situation where women who need to have hysterectomies or seek to have tubal ligations, people who seek gender-affirming care or men who want to have vasectomies will be denied access, because we will have created a situation that has a chilling effect whereby physicians will be sincerely worried they will run into the risk of prosecution.

To answer what I think is your underlying question about why we still have abuse, it is because we still have systemic racism, classism and ableism, and we have a profound culture of misogyny in our health care system, despite the fact that so many more women are now physicians.

I absolutely agree with the Society of Obstetricians and Gynaecologists of Canada: We need conversations, better education in our medical schools and better steps taken by our colleges of physicians and surgeons so that if doctors do commit assault, they lose their licences and are properly investigated — there are consequences that are not necessarily imprisonment for gross acts that are assaults and malpractice.

Again, thousands of women seek out sterilization. If you are asking for a world in which women are not sterilized, I do not want to live in that world. If you’re talking about women being sterilized against their will or without full, informed consent, the reasons we have that are manifest, but they go back to the things I stated: misogyny, systemic racism, systemic classism, systemic ableism, bad practices in education in medical schools and the failures of colleges of physicians and surgeons to enforce the rules.

What we really need is to respect the reproductive autonomy of all women.

Your speaking time has expired.

Do other senators have questions? If you have questions, then we need more time.

Do you agree on more time so Senator Simons can answer the questions that you have?

Are you willing to take more questions?

Yes, with agreement.

Your Honour, I don’t have a question, but I wanted Your Honour to define how much extra time it is. Is it one question, is it five minutes or is it open-ended?

We’ll take two questions, one from Senator K. Wells followed by one from Senator Dalphond.

Is Senator Simons willing to take questions?

Yes, if there is time. I don’t want to monopolize all the time.

Is it agreed, senators?

I want to thank my honourable colleague for her allyship, which is always admirably demonstrated. I know she will join me in thanking Senator Boyer for her advocacy on this particular issue.

Regarding the work that has led up to this bill, we both know that Senator Boyer has engaged in significant consultations and worked in her policy approach to ensure this legislation will protect individuals from non-consensual sterilization while avoiding unintended consequences of restricting important services, such as gender-affirming care. I believe this bill strikes the right balance.

Does my colleague not agree the difference here is in informed consent? For example, in the situation of gender-affirming care, you have informed consent. In situations considered by Senator Boyer’s bill, you do not have informed consent. Is that not the key?

I think there’s a twofold answer to that. First, many physicians may decide not to take on any additional risk. If you’re a doctor and you have a choice of whether to perform gender-affirming care — and there is only a very small pool of physicians who do that work — that’s the nature of the chilling effect. We all felt the chill this morning. It’s the beginning of a concern. The concern may not be grounded in fact. There may not be a realistic threat of somebody being investigated, prosecuted and convicted. Nonetheless, if you’re deciding whether to perform a particular kind of difficult procedure, knowing that you could be charged is certainly going to inform your decision about whether to continue that in your scope of practice.

Second, the question that was raised in the brief from the National Association of Women and the Law is a separate concern, and that is that a provincial government could weaponize this legislation and charge physicians, even if a patient consented — for example, if the government says the patient was 17 and couldn’t give consent — or if the parents consented and shouldn’t have. That’s the concern they raised: that a province that is anti-trans could take well-intentioned legislation and twist it to their own uses.

Would you take another question?

Yes.

Am I right to believe that this bill is identical to the bill that was approved unanimously before prorogation and sent to the House of Commons? If my recollection is correct, Senator Boyer agreed, after some witnesses raised some concerns you mentioned, to have amendments. We received the assistance of the Justice Department to redraft the bill. Then it was accepted by the committee as being a full answer, as prepared by the Justice Department, to some of the concerns you’re raising.

Am I hearing that the bill is now different from what it was before prorogation?

No, Senator Dalphond; indeed, you are correct. Your memory is perfect: That is the case.

The reason I decided to speak is that this time, witnesses were called who did not have the chance to testify to the bill as amended. They had testified on the scope of the original bill. We brought them back in, and they said that although the bill was much improved, their concerns remained.

I cannot tell you how difficult it was for me to decide to speak out today because of the depths of my respect for Senator Boyer and all of her work.

Nonetheless, as somebody who has spent their entire professional career championing the right to reproductive health for women, I felt it was important that this chamber hear some of the testimony that we heard in committee and hear some excerpts from the briefs we received so that, before we vote, everyone in this chamber who was not privy to all of the testimony, both on this bill and its predecessor, would have the chance to hear that there are very respected organizations that are opposed to the forced sterilization of women who are, nonetheless, raising important and, I think, legitimate concerns, which I wanted to be on the record for us all today.

Honourable senators, I had a question earlier, but then I realized that as critic I have 45 minutes to say what I want to say. But I assure you, I will not take 45 minutes.

I wish to begin my remarks with a couple of comments on the previous interventions from Senator Wells (Alberta) and my colleagues across the aisle.

This is about informed consent. This is not about an emergency procedure, which happens regularly in hospitals, unexpectedly. This is about informed consent where knowledge, forethought and consideration have been given. Of course, in an emergency, that is not always the case. I think, obviously, the law would have some flexibility there.

Secondly, when I embarked on this — not with Senator Boyer, I’m not in that league — when I was at the Human Rights Committee a couple of years ago when this was first addressed — and other colleagues will have heard me say this before — I did not plan on being even conversant on the topic. Senator Boyer has led me down a path where, first of all, I was shocked to know that this still happened. I thought when we were doing the study at the Human Rights Committee, we were going to look at some remnant of the past. When I learned there were in excess of 12,000 documented cases, and colleagues among us, this was something that became more important than would normally be of importance to me.

Thank you, Senator Boyer, for all that you have done.

Honourable senators, I rise to speak at third reading of Bill S-228. As we heard from Senator Dalphond, this is the same bill that passed third reading here in the last Parliament and was sent to the House. With the prorogation of Parliament, the bill’s precursor, Bill S-250, died on the Order Paper.

It is worth noting that the Senate has examined this bill thoroughly a number of times. We’ve debated it at second reading twice. We’ve studied it at committee twice. It was amended by the sponsor, Senator Boyer, after careful reflection and advice from colleagues and witnesses.

As Senator Boyer explained in her testimony before the committee last week:

In the previous Parliament, after hearing from my colleagues on the LCJC 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.

Of course, colleagues, here in our chamber of sober second thought, we try to look ahead to the unintended consequences and what might happen, and we try to mitigate that within the wording of the law, within the wording of the legislation.

Senator Boyer continued:

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 section 268(1).

This amendment was unanimously adopted by LCJC — this committee — on September 19, 2024.

I want to thank Senator Boyer again for her persistence and her dedication and her education really of all of us in championing this bill, and even more importantly, for providing a voice to the voiceless. She has shown what it means to be a senator: standing up for minority voices in our country. It is our most important job here in the Senate and one of the main reasons this institution was established. Senator Boyer is an inspiration to us all.

I was encouraged to hear that many of the victims of forced sterilization followed our proceedings — that’s rare. I am pleased that they did not have to go through the ordeal of testifying again this time around.

Colleagues, in the initial study we had at the Human Rights Committee, some of our witnesses chose not to give their names. Others chose to appear as a silhouette. It is a difficult circumstance at the best of times, and then you have the cameras of the world on you, making it even more difficult to relive that again. I thank the committee members for sparing them that burden and for moving the bill forward quickly.

I have often spoken about the risk of unintended consequences in legislation. That is why I appreciated Senator Boyer’s recognition of this concern in the amended version. She listened to witnesses, senators, the medical community and government lawyers. The result is a bill narrower in scope than the original. It does not amend the Criminal Code, but it clarifies – clearly and directly – that sterilization without consent is aggravated assault. It always was, but now the law leaves no room for doubt.

I would also caution, colleagues, if we decide to not adopt this in the Senate and move it to the other place, what message would that be sending to medical practitioners around the country?

Having said this, no one can possibly account for all the unintended consequences of a bill. Unintended is often because it is unforeseen, which is why legislation and lawmaking is a journey and not a destination. It’s another one of the reasons the Senate exists as an institution — to review legislation that almost invariably amends previous legislation, which is frequently, though not always obviously, being amended because of unintended consequences or changing circumstances. That is what we have in this case now.

Honourable senators, in this case, I can accept the possibility of remote or unlikely unintended consequences. At some point, the pursuit of perfection becomes the enemy of good. And when critics suggest that this bill might have a chilling effect on some medical professionals, then I consider that good news. Sometimes a chilling effect on what some perceive as normal is exactly what is needed.

With that, honourable colleagues, if there are no questions for me, I would like to call the question on this bill.

Are senators ready for the question?

Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

(Motion agreed to and bill read third time and passed.)