Thank you, everybody. My name is Amanda Therrien. I'm a staff lawyer with the National Association of Women and the Law. For those of you who may be less familiar with NAWL's work, we are a feminist law reform organization with more than 50 years of experience in working to advance substantive equality for women through legal education and policy reform.
I'm here today to discuss Bill S-228, which seeks to address the practice of forced and coerced sterilization in Canada. We're here today to share some recommendations and potential amendments to the bill to ensure that it addresses forced and coerced sterilization without introducing unintended harms.
Our first point of concern regarding this bill is that it is not fully gender-inclusive. As drafted, the bill focuses on female reproductive anatomy: the fallopian tubes, the ovaries and the uterus. Although we recognize that forced and coerced sterilization has been largely used against indigenous women, men—particularly disabled men—intersex people and non-binary individuals have also been targeted. We are therefore recommending that this section instead refer to the reproductive organs of a “person” more broadly.
Second, the bill risks chilling access to gender-affirming care and wanted permanent contraception. This is one of our most serious concerns. A prior version of this bill captured only procedures that were for the primary purpose of preventing reproduction, but this bill goes further. It is capturing any procedure that results in the permanent prevention of reproduction. This is an issue in the context of gender-affirming care. We often see individuals, organizations and governments that are opposed to gender-affirming care describe it as mutilation, as maiming and as being coercive. One of the most common talking points is around the supposed loss of fertility. A broadly worded Criminal Code provision like this could be used or threatened in ways that create fear and hesitation among providers, which will limit access to this life-saving care.
A similar concern exists when it comes to consensual permanent contraception. As mentioned in our brief, the concern surrounding access to wanted contraception was previously raised when Bill S-250, was being studied during the last session. Dr. Diane Francoeur, CEO of the Society of Obstetricians and Gynaecologists of Canada, noted that it is still incredibly difficult for women to obtain permanent sterilization in Canada and that there's currently a three-year wait-list in Ontario for this procedure. Unfortunately, this is no longer a theoretical concern. Following the bill's passage through the Senate, a physician contacted NAWL to advise that their hospital was instructing them not to provide permanent contraception to women. We believe this change was at least in part a response to this bill.
The consequences are significant. It means fewer providers, more gatekeeping and more barriers, particularly for women who are rural and remote, as well as women navigating reproductive coercion or family violence who may need access to permanent contraception safely and discreetly.
Our solution to this is twofold. First, remove the phrase that refers to “any other procedure performed on a person that results in the permanent prevention of reproduction”. It is overly broad and creates legal uncertainty far beyond what this bill was meant to capture. Second, add a clear safeguard stating that nothing in this section limits access to contraception or gender-affirming care, with the consent of the person.
Finally, if I can raise a more technical point, this bill may make forced sterilization harder to prosecute—or at least more confusing—rather than easier. Under the current state of law, without this bill, non-consensual surgical procedures, including sterilization, constitute aggravated assault. In order to prove aggravated assault, you do not have to prove that the impairment was permanent. However, if we look at the definition of sterilization procedure in Bill S-228, we see it defined as “any...procedure performed on a person that results in the permanent prevention of reproduction, regardless of whether the procedure is reversible”.
This introduces a bit of uncertainty. If prosecutors want to charge someone with aggravated assault in the context of a sterilization procedure, are they now going to have to prove that the prevention of reproduction was permanent? The fact that it's not completely clear in this bill is the reason we recommend removing the definition of sterilization procedure. We want to keep the focus on the lack of consent rather than on invasive and potentially contested medical questions.
This would also bring it into alignment with the section on female genital mutilation, which is also a for-greater-certainty clause. It does not introduce a definition of FGM or require a permanent loss of function; it lists only the behaviours that constitute maiming for the purposes of aggravated assault.
The final version of Bill S-228 that we're proposing would be very short. It would therefore read as follows:
268.1(1) For greater certainty, in this section, “wounds” or “maims” includes the severing, clipping, tying, cauterizing, or removal of the reproductive organs of a person.
(2) Nothing in this section shall be construed as limiting the ability of medical practitioners to provide contraception or gender affirming care with the consent of the person.
In closing, what has been missing up until now isn't a legal tool to prosecute forced and coerced sterilization. It's been the political will. This bill, as amended, will hopefully lead to more prosecutions, but the criminal law, without more, will not address systemic racism in our health care system. We need culturally safe care, indigenous-led care, indigenous language services, more accountability from medical regulatory bodies and hospitals that enshrine the duty of free, prior and informed consent in their policies.
The Criminal Code cannot deliver these changes. For this reason, Bill S-228 must be the beginning of Canada's reckoning with forced and coerced sterilization and not its end.
Thank you. I look forward to your questions.