Criminal Code
Bill to Amend--Twenty-seventh Report of Legal and Constitutional Affairs Committee--Debate Adjourned
September 26, 2024
Moved the adoption of the report.
He said: Honourable senators, I rise today to speak to the report on Bill S-250, An Act to amend the Criminal Code (sterilization procedures).
The bill, as many will recall, seeks to make clear in the Criminal Code that the practice of sterilizing a person without their consent is a serious invasion of a person’s autonomy and a serious criminal offence.
I would like to acknowledge and thank the sponsor of the bill, Senator Yvonne Boyer, for her tireless advocacy on this issue, and I also thank members of the Standing Senate Committee on Legal and Constitutional Affairs for their dedicated work in reviewing the bill and the amendment.
The committee’s work on Bill S-250 began in the spring of 2024. Eighteen witnesses were heard over the course of three meetings. Eight briefs were submitted, which contributed valuable perspectives to the committee’s understanding.
Clause-by-clause consideration took place on September 19, 2024, and the committee adopted one substantial amendment, as proposed by the bill’s sponsor, Senator Boyer. Additionally, one observation was made to ensure the intention behind the legislation is clear and that future interpretations uphold its spirit.
In my role as chair, I am required by the Rules to explain amendments that occurred at the committee. In this case, we had a single amendment, but as I said, it was substantial.
First, though, a word or two about the original unamended bill. It proposed a series of new sections to the Criminal Code to establish a series of offences for people who cause the sterilization of a person without that person’s consent. The bill offered a definition of what constitutes a sterilization procedure and the scope of what would and would not constitute consent.
While supportive of the goals of the bill, a number of senators raised concerns regarding the narrow scope of what would constitute consent and a provision of the bill that would disallow the application of section 45, colloquially understood to be a provision that would enable medical professionals to intervene for the health of a person in emergency circumstances.
The sponsor of the bill, Senator Boyer, heard these concerns and undertook a concerted effort on her part over the summer to address concerns raised by our colleagues last spring. Senator Boyer introduced an amendment at clause-by-clause consideration of the bill intended to streamline the bill and place sterilization without consent within the provisions of Section 268 of the Criminal Code. Specifically, it clarifies that a sterilization procedure constitutes wounding or maiming for the purposes of aggravated assault. This ensures that this heinous act is properly recognized as a serious violation under criminal law.
Furthermore, the definition of a sterilization procedure was expanded. The amendment now covers all sterilization procedures, regardless of whether sterilization was the primary purpose or whether the procedure is potentially reversible through subsequent surgeries or procedures. The amendment also preserved the medical emergency exemption pursuant to Section 45 of the Criminal Code.
Importantly, several other clauses that were in the original bill were removed to ensure clarity and focus on the criminalization of coerced sterilization. The amendment proposed reduced the bill down from 3 pages to 13 lines.
The amendment was unanimously adopted by the committee, which I believe reflects the broad agreement on the importance of the bill and the wisdom of the change.
As I say, the amendment was adopted by the committee, in my view and in the view of my colleagues on the committee, in order to achieve the goal of simplifying and strengthening Senator Boyer’s bill.
I close with these few observations. The sponsor of the bill, Senator Boyer, has long been a champion of exposing the horrific practice of forced and coerced sterilization in Canada, particularly as it has been inflicted upon Indigenous women. She has consistently raised awareness of the serious breach of medical ethics and human rights that this practice represents.
The committee also heard that Indigenous peoples — as well as other vulnerable communities including Black Canadians, low-income individuals and persons with disabilities — were most targeted by these reprehensible practices.
As many of you know, Senator Boyer’s work led to the Standing Senate Committee on Human Rights studying this issue. The result of that work is a report entitled The Scars that We Carry: Forced and Coerced Sterilization of Persons in Canada —Part II.
The work of our Human Rights Committee shed light on how these violations are not just a part of our past but continue to this day, making this legislation a vital step toward addressing ongoing harms.
In conclusion, I thank Senator Boyer for her tireless advocacy on this critical issue. I also want to express my gratitude to the committee members, to our staff and to the dedicated committee staff for their hard work in refining and advancing this important legislation. Your collective efforts are truly appreciated. This bill is an important step toward justice for many of our most vulnerable citizens. Thank you.
Honourable senators, I rise to speak at third reading of Bill S-250, An Act to amend the Criminal Code (sterilization procedures). It has been well over a year since I spoke to this bill at second reading in March 2023. At the time, I expressed my unequivocal support for the bill. I continue to support it in its current form as the amendments proposed and passed at committee are the result of addressing the expert testimony heard by the committee on some of the more technical legal issues — testimony that makes the bill less assailable to criticism.
The aim of the bill is to clarify that non-consented sterilization is an indictable criminal offence punishable by up to 14 years in prison. The heartbreaking testimony of many of the witnesses, as well as the testimony of the bill’s sponsor, the Honourable Yvonne Boyer, has only strengthened my resolve to see this bill passed. When I think of the tireless efforts of Senator Boyer and her team of allies in this effort, I am put to mind of the quote from the famous anthropologist Margaret Mead: “Never believe that a few caring people can’t change the world. For indeed that’s all who ever have.”
That again takes me back to my remarks at second reading when I said that I, like many others in this chamber, thought that forced sterilization was a thing of the past, a relic. So I was shocked to learn that it happened as recently as 2019 and maybe since then.
I also commented at the time that over 12,000 women have been subject to this in Canada, and yet not one individual has been charged much less convicted of assault under the current sections of the Criminal Code that allegedly apply in this area. To me, that is a crime in itself.
Senator Boyer, in her testimony before the committee on her bill, related the story of Dr. Andrew Kotaska, who in 2019 sterilized without consent a 37-year-old Inuk woman at the Stanton Territorial Hospital in Yellowknife. “Let’s see if I can find a reason to take the left tube,” he was reported to have stated. He had already removed the right one and an ovary with her consent in order to resolve the pelvic pain she had been having, which was the reason she was admitted to the hospital in the first place. He did remove the left tube, and she was sterilized — sterilized after having gone to the hospital to resolve pelvic pain.
That story, like so many others, is heartbreaking. But unlike so many other instances, this time, something was done. A complaint was lodged with the Northwest Territories Department of Health and Social Services. An inquiry was established, and Dr. Kotaska was found to have violated the Canadian Medical Association Code of Ethics and Professionalism. He was suspended for five months, made to pay $20,000 for the legal costs of the hearing and ordered to take an ethics course.
Honourable colleagues, if, like Dr. Kotaska, you have been practising medicine for years; if, like Dr. Kotaska, you have held professorships at the Department of Obstetrics and Gynaecology at the University of Toronto, the University of Manitoba and the UBC School of Population and Public Health; if, like Dr. Kotaska, you have published articles in peer-reviewed journals, no doubt, on caring for Indigenous patients and, surprisingly, on informed consent and ethics, I am guessing that the impact of an ethics course may be marginal at best.
Honourable senators, at least in this case something was done, when in so many other cases — in fact, all other cases — nothing was. In other words, there have been approximately 12,000 procedures, probably more, without a single criminal charge, much less a conviction. I would like to know why. Why is this? Senator Boyer can tell us.
I’m not the only one who asks why. In December 2018, the UN Committee against Torture not only recommended legislation similar to what we are debating at third reading today but also recommended that Canada:
. . . ensure that all allegations of forced or coerced sterilization are impartially investigated, that the persons responsible are held accountable and that adequate redress is provided to the victims.
To that I say, “hear, hear.”
Honourable senators, Senator Boyer’s bill is intended to address the legislative situation. As she told us at committee, she undertook to introduce this not of her own volition but at the urging and support of the victims of forced and coerced sterilization. I’m going to quote Senator Boyer, who told us at committee:
This bill is a direct response to their calls for action. This bill is also a response to Recommendation 1 from the Senate Standing Committee on Human Rights report The Scars that We Carry: Forced and Coerced Sterilization of Persons in Canada —Part II. It states “That legislation be introduced to add a specific offence to the Criminal Code prohibiting forced and coerced sterilization.”
Colleagues, I was on that committee when we heard that testimony, that terrible testimony from the victims. When I read that, it sounds to me like the government is satisfied with the status quo and convinced that the mechanisms are already in place to address the situation, which again begs the question: Why have there been no charges, much less convictions, under the existing Criminal Code?
At committee stage, Senator Boyer brought forward an amendment. Her amendment directly addresses concerns about the bill that were raised by witnesses and senators during the committee’s study of the bill. This amendment simplifies the bill and makes it clear that coerced sterilization is a Criminal Code offence. The goal of Bill S-250 has always been to make it clear that a non-consented sterilization procedure is aggravated assault and will be treated as such.
Colleagues, Senator Boyer’s amendment to Bill S-250 aims to address concerns raised during previous debates, particularly the overly broad drafting of the initial bill and the potential unintended consequences, especially in the context of emergency surgeries that could result in sterilization.
The amendment removes a significant portion of the bill and only creates sections 268.1(1) and (2), as seen in Senator Boyer’s amendment, to clearly indicate that forced sterilization constitutes an offence under the provisions for aggravated assault, as per section 268 of the Criminal Code. This section addresses aggravated assault, including forms of mutilation, like female genital mutilation. The amendment explicitly places forced sterilization under this section of the code. The goal is to maintain protection against forced sterilization without interfering with the reproductive rights of those who voluntarily choose this procedure.
The amendment also ensures that health care providers will be protected under section 45 of the Criminal Code in cases of emergency medical procedures where sterilization is a necessary outcome to save a person’s life. Section 45 protects health care professionals from prosecution when performing legitimate medical acts, which excludes situations of non-consented forced sterilization.
By removing the initial procedure from the bill, the amendment allows the bill to clearly indicate that forced sterilization is a criminal offence and that anyone performing this operation will fall under section 268 of the Criminal Code, which addresses aggravated assault.
This amendment significantly simplifies the bill while maintaining the core goal to make it explicitly clear in the Criminal Code that forced sterilization, meeting the requirements of an aggravated assault, is against the law and will be prosecuted — finally prosecuted, colleagues.
I know that Senator Boyer’s goal, shared by so many of us, is to do everything in her power to make sure not one more person is sterilized against their will or against their knowledge in Canada. That was and remains the intention of this bill, and I support this.
I believe that with her amendment, we now have a clearly delineated path forward that places the predominating interests of life givers ahead of others. It is our duty to protect the public from the violation of their human rights, and this bill is a necessary part of fulfilling that duty.
Finally, colleagues, I want to thank our colleague Senator Boyer for her care, her concern, her dedication and, most importantly, her action. So many people were counting on her, and she delivered. For all these reasons, colleagues, I support this bill at third reading. I urge you to do so as well. Thank you.
