Indigenous and Northern Affairs Committee on March 26th, 2026

[The Chair, Liberal, Terry Sheehan]

We're going to reconvene.

We have with us, from the Department of Justice's criminal law policy section, Nathalie Levman, senior counsel, and Morna Boyle, counsel.

The Department of Justice will have five minutes to present to us, and then we'll go right into the questions. We're going to finish up at 10:15.

Thank you.

[Morna Boyle, Counsel, Criminal Law Policy Section, Department of Justice]

Thank you, Mr. Chair and members of the committee, for the invitation to appear today on the unceded and unsurrendered territory of the Algonquin Anishinabe nation. We recognize that this acknowledgement must be matched by continued efforts to ensure that our work contributes meaningfully to justice and reconciliation.

We are pleased to be here today to provide a brief overview of Bill S-228, an act to amend the Criminal Code regarding sterilization procedures, and to assist the committee with any legal or technical questions it may have.

Bill S-228 proposes to amend the Criminal Code to clarify that a sterilization procedure performed without legal consent constitutes aggravated assault. Assault is the non-consensual application of force against another person. Aggravated assault is an assault that wounds, maims, disfigures or endangers the life of the victim. Aggravated assault is the Criminal Code's most serious form of assault, carrying a maximum penalty of 14 years' imprisonment.

These amendments would not alter the law of assault as it currently applies to sterilization procedures. All non-consensual surgical procedures, including sterilization procedures, already constitute aggravated assault, because surgical procedures necessarily involve wounding the person who undergoes them. The bill would clarify that a sterilization procedure constitutes a wounding or a maiming for the purposes of the Criminal Code's aggravated assault offence.

A conviction for aggravated assault requires proof—first, that an assault occurred; and second, that the assault wounded, maimed or disfigured the victim or endangered their life. This means that surgical procedures, including sterilization procedures, amount to aggravated assault only when they are non-consensual. That is because assault is defined in subsection 265(1) of the Criminal Code as the intentional application of force to another person without that person's consent. This means that the criminal law does not apply to surgical procedures, including sterilization procedures, that are performed with the patient's legally effective consent.

Both subsection 265(3) and relevant jurisprudence articulate when consent is legally effective. Specifically, legally effective consent must be freely given without fraud, duress, violence or threats. Consent must also go to the nature of the act, meaning that the person must have a sufficient foundation of knowledge about what is proposed, including its purpose and what will take place. Finally, consent must be given by a person who understands and appreciates the nature of the act. These rules are consistent with concepts of voluntariness, knowledge and capacity in provincial and territorial health law, so compliance with health law consent requirements protects from criminal liability.

Bill S-228 would not change the criminal law as it applies to medical procedures, including sterilization procedures, and therefore would not criminalize consensual sterilization procedures or in any way affect the legality of medical procedures performed with legally effective consent. That is why the bill states, “For greater certainty, a sterilization procedure is an act that wounds or maims a person” for the purposes of the aggravated assault provision. “For greater certainty” signals Parliament's intent to clarify the law, not change it.

We would also note that the bill does not alter the existing legal framework that protects individuals from criminal liability who perform surgical operations in emergency circumstances with reasonable care and skill. Those rules would continue to operate as they do now.

In sum, Bill S-228 clarifies the existing criminal law as it applies to non-consensual sterilization procedures, thereby reaffirming the importance of legally effective consent and preserving the existing criminal law framework governing non-consensual surgical procedures, including non-consensual sterilization procedures.

Thank you very much. We would be pleased to respond to the committee's questions.

[The Chair, Liberal, Terry Sheehan]

Thank you very much for your testimony.

We will now turn to the Conservatives for the first round of six minutes.

MP Schmale, go ahead, please.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes, ON]

Thank you very much, Chair.

Thank you to a great group of lawyers in front of us today.

[Voices]

Oh, oh!

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes, ON]

I keep digging. I don't know why.

You heard the testimony we just had. You saw and heard that we were trying to dig down, narrow in and focus in to alleviate concerns if people had some. Would you care to reflect on what you observed a few moments ago?

[Nathalie Levman, Senior Counsel, Criminal Law Policy Section, Department of Justice]

Thank you very much for the question.

Yes, we would like to address what we view as some misunderstandings of the impact and scope of Bill S-228.

We'd like to stress that the bill would not create a new offence. The “for greater certainty” clause, as my colleague explained, merely confirms or clarifies the application of existing law.

We would also like to stress that criminal liability for non-consensual medical procedures requires both that the medical procedure took place without the person's consent and that the person who performed the procedure, or took part in it, knew that the patient was not consenting or that the person performing or taking part in it was reckless as to the lack of consent.

Situations in which a person gives valid consent and then later regrets it, after the procedure, would not be caught by the criminal law, either now or under Bill S-228, because Bill S-228 does not change the scope or application of the criminal law.

Therefore, we really want to reassure committee members and stakeholders, as criminal lawyers who are responsible for these provisions in the code from both a legal and a policy perspective, that Bill S-228 would not change the criminal law framework governing non-consensual medical procedures. This includes the fact that section 45 would continue to operate and that the consent framework, as my colleague has described it, would also continue to operate.

I'd also like to stress that the concerns we heard during the first hour were in fact taken into account in the redrafting of former Bill S-250. You'll recall that Bill S-250, as amended, is Bill S-228, the very bill you're considering. All of these concerns were taken very seriously, I believe, and factored into the current formulation of the bill.

If you'll give me permission, I would like to quote Dr. Wilson, who appeared before you on Tuesday, because we agree with what he said. He said, “As an obstetrician-gynecologist...if this bill passes, I won't be changing my practice, because there's nothing for me to change if I'm not engaging in forced and coerced sterilization.” He also said, “We don't really have anything to worry about in the way this bill is written if we're not engaging in those coercive practices.”

I stress what my colleague informed you of in her opening remarks, that complying with provincial and territorial health laws, which require the securing of informed consent prior to every single medical procedure, immunizes all medical professionals from criminal liability, both under existing criminal law and under Bill S-228, which does not change existing criminal law.

I hope this helps the committee.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes, ON]

Yes, it does. Your testimony leads me to my next two questions.

How much time do I have?

[The Chair, Liberal, Terry Sheehan]

You have two minutes.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes, ON]

Okay, I have two questions in two minutes.

I'll give you both of my questions because of the time. One is on the piece you were just talking about. In the previous session, we heard of the example of a doctor doing a procedure and accidentally nicking something and causing sterilization. I know you mentioned it in your words, but I want to be perfectly clear here, because I want to address the exact scenario the doctor talked about. The second is, do you think this bill needs or requires any amendments?

Thank you.

[Nathalie Levman]

For your first question, fundamental criminal law principles require criminal acts to be voluntary. Therefore, accidents are simply not criminal. This is a function of standard fundamental criminal law principles. Thus, accidents cannot be captured by existing criminal law—or under Bill S-228.

Because Bill S-228 is a “for greater certainty” clause and doesn't change the existing scope of criminal liability for medical procedures, including sterilization procedures, it's our view that no further amendments are necessary.

[The Chair, Liberal, Terry Sheehan]

Thank you very much.

Your two questions are done? Okay.

Next is Dr. Hanley for six minutes, please.

[Brendan Hanley, Liberal, Yukon, YT]

Thank you very much to both of you for being here.

I want to clarify what you said about the text of Bill S-228 versus Bill S-250 in the previous Parliament.

Did you say that the text is a mirror of the final amended version of Bill S-250? To be clear, has any word changed from the final amended version of Bill S-250?

[Nathalie Levman]

No. Bill S-228 reflects Bill S-250 as amended by the Senate committee on legal and constitutional affairs.

[Brendan Hanley, Liberal, Yukon, YT]

I'm going to build a bit off what Mr. Morin brought up in the previous hour on the concept of free, prior and informed consent as applied to individual medical procedures.

I wonder if you can comment on what the understanding is and what the definition is within medical jurisprudence.

[Nathalie Levman]

That's an excellent question.

We have two legal frameworks that apply to medical professionals. The first is provincial and territorial health law. For example, the Health Care Consent Act of Ontario provides a regulatory framework that doctors must follow to comply with informed consent rules. They more or less mirror what we see in section 265, which I have open here. It says that you have to consent to every touching. That's a fundamental aspect of our law, as confirmed by the Supreme Court of Canada in its Morgentaler decision. They were very clear that any kind of medical procedure performed without complying with the criminal law's consent rules, which are articulated in section 265 and in the jurisprudence, is an assault. We know that. This is fundamental, in our society, to protecting bodily autonomy and integrity.

What we see in the criminal law is exactly as my colleague has described it. You cannot induce consent through fraud, threats, violence or an exercise of authority. Most importantly, if no consent is given at all because the person, let's say, isn't informed—they go in for one procedure they've consented to and the result is that they end up sterilized, which they have not consented to—then no consent is given. This is both for the purposes of a statute such as the Health Care Consent Act or equivalent statutes in other jurisdictions and for the purposes of the criminal law.

We have overlapping legal frameworks—one criminal and one regulatory. One is at the federal level, and one is at the provincial-territorial level.

I hope this helps.

[Brendan Hanley, Liberal, Yukon, YT]

Are you aware of other areas of medical practice in which there is, outside of normal consent laws and the laws to which you refer, additional legislation at the federal level that applies to other areas of consent in medical practice?

[Nathalie Levman]

The other provision was already noted. It's the female genital mutilation provision.

I want to stress that female genital mutilation and sterilization are not analogous procedures. Female genital mutilation is a form of violence against women. It is never medically indicated. That's why subsection 268(4) clearly says that no consent to female genital mutilation is valid unless it falls within some narrow exceptions. Because female genital mutilation is defined in part as an excision—excision means cutting and, therefore, removing something like a cancerous growth or fixing the damage caused by female genital mutilation; that requires cutting—the law will recognize consent in those limited situations in which a particular procedure on female genitalia is legitimate and medically indicated.

I want to stress that Bill S-228 has no similar provision. You see nothing in Bill S-228 that says no consent is valid, which is because consent is valid in this context.

Medical procedures that have social utility.... This is from the Supreme Court of Canada in Jobidon in 1991. The law clearly allows people to consent to medical procedures that could be highly invasive but have social benefit and benefit to the patient who's undergoing them.

That's why Bill S-228 fits very nicely within the current framework addressing medical procedures that are non-consensual. All it says is that if a sterilization procedure is non-consensual—meaning it doesn't comply with the criminal law's rules on consent as my colleague has described them—then it will be a criminal act and somebody could be held liable, but only if they have the requisite knowledge or recklessness with respect to the lack of consent of the patient.

That's what Bill S-228 does. It's different from the FGM provision because it's a different practice. FGM is not legitimate. Sterilization procedures that are consensual are legitimate, but FGM is never legitimate.

I wanted to explain the differences between these two provisions.

[The Chair, Liberal, Terry Sheehan]

Thank you very much.

Mrs. Gill, you have the floor for six minutes.

[Marilène Gill, Bloc, Côte-Nord—Kawawachikamach—Nitassinan, QC]

Thank you, Mr. Chair.

I thank the witnesses for joining us to enlighten us through their professional expertise.

The Collège des médecins du Québec has informed the committee of a number of concerns. You assumed that the Collège des médecins du Québec, the Association of Obstetricians and Gynecologists of Quebec and the Society of Obstetricians and Gynaecologists of Canada may not have understood the content and scope of Bill S‑228.

The representatives of these organizations had a few questions and provided us with information about the harmonization of the bill, which I will present to you last. One of those questions was about the scope of section 45 of the Criminal Code. In their view, that should be clarified. The section states, in particular:

(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.

In short, this concerns emergency situations. That is the concern these people have raised. They think that clarification in this regard would help protect both the patient and the practising physicians, of course.

So that's one of their proposals. I'd like to hear your comments on this first proposal. Then I'll have others.

[Nathalie Levman]

Nothing in Bill S-228 impacts section 45. My colleague reviewed this in her opening remarks, and I've restated it. The existing legal framework continues to protect from criminal liability in appropriate situations, including emergency situations.

Section 45 applies now. I understand that it's operating now to ensure that physicians can save lives. I want to stress that this is a very significant, socially important role to play. You need to be able to save lives in emergencies with uterine ruptures or whatnot. The existing criminal law does this, and nothing in Bill S-228 changes it.

I would really like to reassure the medical community and this committee that Bill S-228 won't change the existing framework that already protects medical professionals who save people's lives and have to forgo the consent process because of the emergency.

[Marilène Gill, Bloc, Côte-Nord—Kawawachikamach—Nitassinan, QC]

I wasn't planning to ask you the question, but it occurred to me while you were speaking. We've heard from several doctors among today's witnesses. Were doctors involved in the drafting or the reflection that went into Bill S‑228, or even into Bill S‑250? It's a yes or no question. I'm just asking you in passing. I have other questions, as well.

[Nathalie Levman]

I want to point out that this is a private member's bill, not a government bill. I can refer to what I know, what I understand to have been the process.

Bill S-250, as introduced, started with a very broad offence that would have criminalized all sterilization procedures, subject to very limited exceptions. My understanding is that the medical community came to the Senate committee on legal and constitutional affairs and expressed their support for the intent but also their extreme concern with it. The concerns were taken into account by Senator Boyer, as I understand it, and others who supported her in developing the amendments that were ultimately accepted by legal and constitutional, during their clause-by-clause review of Bill S-250. Those are the amendments you're reviewing today.

[Marilène Gill, Bloc, Côte-Nord—Kawawachikamach—Nitassinan, QC]

Actually, my question applies whether it is a government bill—in which case you could have answered—or a bill introduced by a member of Parliament. For us legislators, regardless of the type of bill, this raises questions about how we should proceed to reassure people beforehand rather than afterward.

I have another question for you from the Collège des médecins du Québec. I think you've answered it, to some extent. Those people drew a parallel between cases of mutilation and consent. For the Collège des médecins du Québec, verbal consent would not be enough. They would prefer that it be handled differently. As I mentioned earlier, the goal is to strengthen the protection of patients and physicians.

I have one last question, which I'll ask you right away because, if I let you answer the previous question first, I'll run out of time for this one. It's about the definition. You alluded to it a few moments ago. According to the people from the Collège des médecins du Québec, there is something of an inconsistency. When comparing the French and English versions, we see that the English version is missing an element. I can send it to you. The members of the Collège des médecins du Québec would like “occluding” to be used in the English version, in addition to “clipping”, a term that doesn't really encompass the terms used in the French version. So it's a matter of harmonization.

Please answer my question about the analogy between mutilation and sterilization, in which case verbal consent would not be enough.

[Nathalie Levman]

As I said before, there are two legal frameworks. Some of the comments made about consent and informed consent really belong more in the context of PT health law in terms of what steps are necessary administratively to ensure that you’re getting proper informed consent. That's why both my colleague and I have stressed that complying with PT health laws completely immunizes a medical professional from criminal liability, because those rules are very strict. They often require written consent—barring emergency situations, which we've already talked about. That's what I'd have to say. We need to try to keep the legal frameworks separate: One's criminal, and one's regulatory; one's federal, and one's provincial and territorial.

Regarding the text of Bill S-228, I'd like to say—and it is on the record—that Justice officials assisted, through our minister's office, which is the only correct way of doing it, with the amendments to former Bill S-250. In doing this, we had numerous officials, including legislative drafters. We don't draft in one language and then translate; we draft in both languages at the same time. Even if they don't look exactly the same, and they don't look like an exact translation, I can assure the committee that they reach the same objective, which is what we seek to achieve in drafting rooms.