Evidence of meeting #108 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was victims.

A video is available from Parliament.

On the agenda

MPs speaking

Also speaking

Yves Gratton  Lawyer, Criminal Section, Aide juridique de Montréal, Laval
Caitlin Shane  Lawyer, Pivot Legal Society
Moses  Lawyer, Pivot Legal Society
Robert Leckey  Law Professor, McGill University, and Past-President, Egale Canada, Egale Canada Human Rights Trust
Steve Coughlan  Professor, Schulich School of Law, Dalhousie University, As an Individual
Tom Hooper  Contract Faculty, Law and Society Program, York University, As an Individual
Gary Kinsman  Professor Emeritus of Sociology, Laurentian University, As an Individual
Calla Barnett  Board President, Canadian Centre for Gender and Sexual Diversity
John Sewell  Member, Toronto Police Accountability Coalition
Joel Hechter  Barrister and Solicitor, As an Individual
Rick Woodburn  President, Canadian Association of Crown Counsel
Christian Leuprecht  Professor, Department of Political Science, Royal Military College of Canada, As an Individual
Bruno Serre  Executive Board Member, Association des familles de personnes assassinées ou disparues
Karen Wiebe  Executive Director, Manitoba Organization for Victim Assistance
Nancy Roy  Executive Director, Association des familles de personnes assassinées ou disparues
Maureen Basnicki  As an Individual
Julia Beazley  Director, Public Policy, Evangelical Fellowship of Canada
Arif Virani  Parkdale—High Park, Lib.

5:05 p.m.

Board President, Canadian Centre for Gender and Sexual Diversity

Calla Barnett

Yes, that's correct.

September 25th, 2018 / 5:05 p.m.

Liberal

Randy Boissonnault Liberal Edmonton Centre, AB

Thank you very much.

Dean Leckey, I want to talk with you about your comments on the intersex community in paragraph 268(3)(a). Before I ask you a pointed question, I will say for colleagues on the justice committee that we're talking about babies who are born with ambiguous genitals. They don't present as boys or girls. In the past they would have been referred to as “hermaphrodites”, but the community has evolved. People in the community use the term “intersex”. This is a very important community. It's a marginalized community.

We have done work at the LGBTQ2 secretariat, working with people such Dr. Morgan Holmes and others, so that people can understand what happens. Imagine that you're parents and you have a baby, and the baby presents ambiguous genitals. Medical professionals in this country can decide the sex of your child at birth. They have a 50% chance of getting it wrong or a 33% chance of getting it wrong, depending on where that baby is on the gender spectrum.

Friends of mine on Vancouver Island had a child 15 years ago with ambiguous genitals. They found a medical professional who told them to let the child grow up. It was exactly what the parents wanted. Two months ago, that now-15-year-old had a gender-reveal party and picked a gender. I'm not going to tell you what was picked—because it doesn't freaking matter.

What matters is that nobody poked and prodded this 15-year-old teenager. This teenager grew up to be a totally happy kid and has now chosen a gender. We empower medical professionals to basically bring harm to babies. That's not cool. We should not allow that.

Professor Leckey, what language would you have in this section to prevent this from happening?

5:05 p.m.

Prof. Robert Leckey

Thank you for the question.

I would perhaps keep the exception of an intervention for the health. I don't think you need to keep “for the purpose of...having normal reproductive functions or normal sexual appearance or function”.

In the cases of intersex children, as I understand it, the surgery is not going to be able to generate reproductive capacity that the person does not have. Often, a botched surgery can destroy a person's capacity for sexual pleasure, and so on.

I would slice away the whole idea that there is the normal appearance or sexual function with nothing pressing medically, and that this alone is the basis for intervention.

5:05 p.m.

Liberal

Randy Boissonnault Liberal Edmonton Centre, AB

Thank you. We'll look forward to a brief from you on this matter.

That was a slight request to my friend and colleague Dean Leckey.

This question is for Dean Leckey and Professor Hooper—and to Professor Kinsman, should you wish. Suppose the government could carve out the bawdy house provisions along a community standard that would keep the non-consensual harm provisions—as rewritten by the court—on the books, and then have a schedule written up for cabinet that could become part of the expungements to legislation to allow people such as Ron Rosenes and the some 1,300 people that Mr. Kinsman and others have indicated have criminal records from 1968 to 2004 for having been arrested on bawdy house laws.

If the government could do that, and attach that schedule to the expungement legislation allowing those men to have their records repealed, would it then be fine—according to you—to leave the remnants of bawdy house provisions on the books as non-consensual harm offences?

5:05 p.m.

Prof. Gary Kinsman

The bawdy house laws come from a historical period and continue to carry with them a certain type of enforcement of morality. There are problems that might exist in terms of the situations you're describing. Those are much better dealt with under provisions of the Criminal Code that actually deal with harm, violence and harassment. Those are what we really need to look for. Historically and politically, it's absolutely crucial that the bawdy house laws be repealed in their entirety if we're going to follow through on the apology from Justin Trudeau.

5:10 p.m.

Liberal

Randy Boissonnault Liberal Edmonton Centre, AB

Dr. Leckey.

5:10 p.m.

Prof. Robert Leckey

It also strikes me as problematic. As I understand it, in the other offences that have been repealed and have the expungement mechanism, all instances of the offence could be expunged.

You're essentially proposing that we look back to past convictions for being in a bawdy house or running a bawdy house, and you'd have to decide which ones were bad, inappropriate, Victorian or homophobic policing, versus the ones that were permissible. I think it would actually be complicated on the implementation side, because it would not be a category of convictions. You'd have to look at the details of each one.

5:10 p.m.

Liberal

Randy Boissonnault Liberal Edmonton Centre, AB

That's helpful.

Professor Hooper.

5:10 p.m.

Prof. Tom Hooper

I think there's a principle that this law should not be there. What is the rationale or the justification for maintaining the bawdy house law in its current form?

It's not being used, so it's sitting there. When I listen to Professor Coughlan, I hear this idea that when you have laws that are in the Criminal Code, that's what they should actually mean. When you read the Criminal Code, that should be instructive to you as to what the law is.

5:10 p.m.

Liberal

Randy Boissonnault Liberal Edmonton Centre, AB

It should be the law.

5:10 p.m.

Prof. Tom Hooper

Right.

Anybody here, go read the bawdy house law and tell me what it means. It's not going to mean what the Labaye case says it means.

5:10 p.m.

Liberal

Randy Boissonnault Liberal Edmonton Centre, AB

I will be able to relate with my 15- and 17-year-old, and maybe even my 11-year-old nieces and nephews, after having talked about zombies and Frankenstein in Ottawa today.

Thank you all very much.

5:10 p.m.

Liberal

The Chair Liberal Anthony Housefather

I have to get to Mr. Rankin next.

Mr. Rankin.

5:10 p.m.

NDP

Murray Rankin NDP Victoria, BC

I'll give you a chance to expand, Dr. Hooper.

I just want to say, for the record, that I thought it was a very good illustration of the importance of legal history that you're here today and you've told us about the history of these laws, which frankly, I was unaware of. I find it entirely persuasive, and I will be moving before this committee for the repeal of the three sections that are addressed in Bill C-75, namely vagrancy, indecent acts and the bawdy house provision.

I totally accept your analysis. I think if there are issues that remain they can be handled through other sections of the code, or we can tailor it to suit what needs to be done in the 21st century. I want to salute you for your use of history so effectively.

Professor Coughlan, I loved your presentation. I found it very lucid. I wonder, while you're at it, if you could get rid of the decimal points in the Criminal Code. Could that be part of the review? Because it's impossible to remember anything in the code. Maybe I'm dating myself, but that should be part of that task force. Could that be added to the job description of that summer law student you talked about?

5:10 p.m.

Prof. Steve Coughlan

I do have a response on that, because I think it raises an important point. The reason we now have sections like paragraph 487.011(b.1) is because we amend the Criminal Code constantly, and of course, we can't renumber everything. I want to tie together your last point with that, because I think there is a bigger issue here.

On the one hand, I have found everything I've heard from my fellow panellists today to be persuasive and I think, “Okay, yes. Why is this not in here as well?” But of course, normally when you have a bill and you're thinking, “Why isn't it doing this?” it's because the bill is aimed at doing something else. Most bills are not aimed at doing everything that could possibly be done, but this bill is actually so big that it's a perfectly understandable reaction on anybody's part to think, “You're already doing all of those unrelated things. Why don't you do this other thing, which would be a good thing as well?” This actually leads me to the bigger point: Why not just bite the bullet and undertake fundamental reform of the Criminal Code?

5:10 p.m.

NDP

Murray Rankin NDP Victoria, BC

Right.

We used to have a law reform commission—

5:10 p.m.

Prof. Steve Coughlan

We need to do that. We've needed to do it for decades—not just for minor things like this, not just because of laws that are out of step with the times, and not just because the interlineated numbers make it impossible to keep track of everything, but because we've needed fundamental reform of the Criminal Code. The Minister of Justice in 1979 said it was time to undertake a systematic review of the Criminal Code, and we still haven't done it.

This is so close to doing that anyway. It's doing so many things. Let's just do it for real.

5:10 p.m.

NDP

Murray Rankin NDP Victoria, BC

We call them omnibus bills. Things just get conflated. They throw everything but the kitchen sink into it. We don't have a law reform commission anymore, there's no—

5:15 p.m.

Prof. Steve Coughlan

And we should.

5:15 p.m.

NDP

Murray Rankin NDP Victoria, BC

—as the federal government calls it, responsibility centre for just doing this cleanup work. British Columbia, and I'm sure other provinces, have what we call miscellaneous statutes amendment bills. Every year, from A to Z, sections that are spent or have been found to be unconstitutional, are thrown in. They're passed unceremoniously on the last day of the session, routinely, with no debate. I don't understand why we can't do that here today.

I thought Mr. Cooper gave a very thorough account of what the Travis Vader situation meant. I'd hate to be Justice Denny Thomas in making the error that he did because he had the temerity to rely on the written text of the Criminal Code. What a thing to have to be saddled with. I feel sympathy for him.

You used the word “dumbfounding”. I haven't heard that word before. As a Canadian, I would use the word “embarrassing”. Frankly, it's embarrassing that we've let it get this far. As Mr. Boissonnault said, your testimony was very lucid and compelling in this entire context.

5:15 p.m.

Liberal

The Chair Liberal Anthony Housefather

Do we have unanimous consent for the committee to proceed until we finish our other questions?

5:15 p.m.

Some hon. members

Agreed.

5:15 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you.

5:15 p.m.

NDP

Murray Rankin NDP Victoria, BC

I want to build on what Mr. Boissonnault asked you, Dean Leckey, if I could.

Of course, you haven't done the thorough charter analysis that would be required, but I think you said very clearly that you thought that Justice Canada's charter statement in respect to certain provisions was inadequate. I can't recall if that was with respect to paragraph 268(3)(a) of the Criminal Code, about intersex children and their protection, or if you were talking about paragraph 25(c) of Bill C-66.

I'm going to ask you to repeat that.

5:15 p.m.

Prof. Robert Leckey

It was actually a third option. The charter analysis by Justice was about proposed section 156.