Thank you very much. Signal if I'm going too fast at any point.
Our LGBTQI2S communities are appreciative of the interest shown us by the federal government in a whole range of ways, reaching right up to the Prime Minister.
In my time this afternoon, I intend to make four points. First, I will articulate our general perspective or approach. Second, I will express Egale Canada's agreement with the submission by Gentile, Hooper, Kinsman, and Maynard, whom you'll be hearing from, it turns out, after me.
I want to call for legislative change in two respects. The first is the failure in Bill C-75 to address the problem of surgeries on intersex children, and the second is a problem with the otherwise welcome efforts to undo past discrimination against our communities.
Let me start, briefly, with the overall perspective.
At Egale Canada, we come at these issues from a general approach attuned to LGBTQI2S equality, dignity and inclusion. Fundamentally, we are keenly conscious of the long history of the criminal law's sexual and moral offences being applied against our communities discriminatorily, discretionarily and disproportionately. We would emphasize intersectionality, conscious that members of our community experience overlapping disadvantage by virtue of being queer people with disabilities, for example, or being racialized or indigenous transpeople. I would emphasize the symbolic significance of the criminal law on matters touching our communities.
The Victorian prohibitions relating to sodomy, bawdy houses, indecency—you name it—have consequences beyond their enforcement and convictions obtained. The mere threat of their enforcement can operate powerfully, and it operates more powerfully against those most vulnerable people who might not get good legal advice or have any idea how to respond.
Second, very briefly, I wanted to signal that we fully endorse the report from Kinsman et al., whom you're about to hear from. We support their calls for Bill C-75 to go further than it does, in a number of ways. We affirm their call for adopting clear, evidence-based guidelines on the use of criminal law in prosecuting cases of HIV non-disclosure.
Let me turn now to the two legislative changes that it is possible nobody else will raise with you.
The first concerns intersex children. Subsection 268(1) of the Criminal Code sets out the crime of aggravated assault, and subsection 268(3) addresses excision. It specifies that “wounds” or “maims” includes cutting a person's “labia majora, labia minora or clitoris”, but then it provides an exception, where surgery is performed “for the purpose of that person having normal reproductive functions or normal sexual appearance or function”. The alternative basis for the exemption from aggravated assault's application is when a person is at least 18 years of age.
In other words, paragraph 268(3)(a) deflects the protections of the criminal law from children on whom surgery is inflicted for the purpose of giving them a “normal sexual appearance or function”. The idea of a “normal sexual appearance or function” is a vehicle for cisnormative assumptions about which bodies are medically correct or normal.
I can't undertake a full charter analysis this afternoon, but subsection 268(3) raises concerns about security of the person and equality. Moreover, international human rights bodies have recognized that so-called corrective surgery of children whose genitals are characterized as abnormal violates their personal autonomy and integrity. We urge you to amend Bill C-75 to modify subsection 268(3).
The final point concerns legislation with a view to ending historical discrimination.
First, proposed section 156 preserves the possibility of prosecution for wrongful conduct where the offences, once in place, have been repealed, so long as the conduct remains criminal today.
Second, paragraph 25(c) of Bill C-66 provides for applications for expungement orders for convictions in respect of listed same-sex offences on certain conditions, including that the persons participating in the activity were 16 years of age or older at the time.
Both provisions aim to end the harmful effects of criminalizing same-sex conduct in a discriminatory way, while preserving the power to punish conduct that remains plainly criminal by today's standards. But both are problematic. Efforts to assure equal treatment must not rely, as these do, on the current age of consent of 16. Instead, it is necessary to take into account the fact that, while the age of consent for sodomy was for a time 21, and then 18, the age of consent for different-sex sex was 14 until the year 2008.
Proposed section 156 would still allow the prosecution for consensual sodomy committed with a 14- or 15-year-old, because today, someone that age cannot consent to sex except with a person close in age to them. The expungement provision, for its part, would not permit the expungement of a sodomy conviction for consensual sodomy carried out with a 14- or 15-year-old. Whatever the good intentions, these provisions unintentionally perpetuate discrimination against our communities, insofar as there is no basis for prosecuting a heterosexual who had consensual vaginal intercourse with a 14- or 15-year-old while the age of consent was 14.
Accordingly, Justice Canada's charter statement is incorrect when it states that “the enactment of proposed section 156 would limit any such prosecutions to those that do not raise Charter concerns.”
Thanks for your attention.