Justice Committee on Sept. 25th, 2018

[The Chair, Liberal, Anthony Housefather]

Mr. Sikand, if you're taking the rest, go ahead.

[Gagan Sikand, Liberal, Mississauga—Streetsville, ON]

My question is also for Pivot.

I'm going to deviate, but based on your testimony, I wanted to ask if I could get your comment on the intersection of your clients with the court, more specifically, revictimization and how that affects those you represent.

[Caitlin Shane]

Certainly. It's somewhat ironic, the fact that we're talking about a victim fine surcharge designed to provide funding and protection to victims of crime, and so often our clients, and other low-income folks across Canada, who are engaged in oftentimes petty crimes, breaches of bail conditions, simple possession of illicit substances.... I don't mean in any way to belittle or, quite frankly, victimize those people—because they are incredibly strong and resilient—but this type of legislation, in which a judge cannot take into account the lived reality of a person before them, is in and of itself victimizing.

Certainly, the sort of laundry list of possible outcomes that I discussed, whether it's individuals giving up a third or two-thirds of their paltry income assistance or a person living in constant fear of arrest, is a picture of the law being used to victimize people further. Again, we really do push for the discretion of judges to account for what people are experiencing on a daily basis. These are folks who are criminalized by their very existence.

[The Chair, Liberal, Anthony Housefather]

Thank you so much.

Mr. Rankin asked for a bit of time to ask a small supplementary question.

[Murray Rankin, NDP, Victoria, BC]

I just have a brief question for Mr. Gratton, for a clarification. I'd like to know more about the Boudreault case.

What were the main arguments? Were they mostly based on the concept of cruel and unusual punishment? Was that the crux, or were there other arguments?

[Yves Gratton]

Yes, mostly. Because the legislator had removed the discretionary power to impose the surcharge or waive it, some situations could generate disproportionate sanctions that amounted to cruel and unusual punishment, which breached section 12 of the Canadian Charter of Rights and Freedoms. In summary, that was the gist of it.

[The Chair, Liberal, Anthony Housefather]

I'd like to thank Mr. Gratton.

I'd like to thank both of you from Pivot. It's so appreciated. Your testimony was very helpful. I know it's hard by video conference—you can't see the people in the room, you can't see their reaction—but again, I thank you for what your organization does. It's much appreciated.

Mr. Gratton, we really appreciated your testimony.

I'd like to call a brief recess.

I'll ask the members of the next panel to come up, because I'd like to start it a bit early, if possible. We have a vote, and we have to get out at 5:30. I want to make sure we hear your testimony in its entirety.

[The Chair, Liberal, Anthony Housefather]

It is a great pleasure to reconvene this meeting, as we are now going to hear from our second panel on Bill C-75.

I would like to welcome our esteemed group of witnesses for this panel.

We start with Mr. Steve Coughlan, who is a professor at the Schulich School of Law at Dalhousie University. As representatives of gay and lesbian historians, we have Mr. Tom Hooper, who is faculty at the law and society program at York University, and Prof. Gary Kinsman, who is professor emeritus of sociology at Laurentian University. From the Canadian Centre for Gender and Sexual Diversity, we have Ms. Calla Barnett, who is the board president.

We also have with us Prof. Robert Leckey, from Egale Canada Human Rights Trust. Mr. Leckey has just joined us. He is a law professor at McGill University, and is in fact the dean at McGill's faculty of law and a past president of Egale Canada.

Welcome, all.

As I was telling the other panellists, we always go with the video conference folks first because if we lose you, we don't want to lose your statement. I know you just walked into the studio, but if you're ready, I'll start with you. You have eight minutes, but I won't cut you off before 10 minutes.

The floor is yours, Dean Leckey.

[Professor Robert Leckey, Law Professor, McGill University, and Past-President, Egale Canada, Egale Canada Human Rights Trust]

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.

Two corrective efforts—proposed section 156 in Bill C-75 and the expungement mechanism in Bill C-66, already passed—rely unjustly and discriminatorily on today's age of sexual consent.

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.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We will now move to Mr. Coughlan.

[Professor Steve Coughlan, Professor, Schulich School of Law, Dalhousie University, As an Individual]

Thank you very much.

I'm pleased to have been invited to speak with you today about the portions of Bill C-75 that deal with removing the outdated provisions in the Criminal Code, specifically those that have actually been struck down by courts, as opposed to simply being out of step with the times.

This is an issue that I've been concerned with for decades and about which I've been advocating with the Department of Justice for several years now. We do seem to be on the verge of action being taken, finally, long overdue action. I am, of course, in favour of that. Indeed, it's difficult to imagine any basis upon which anyone could be opposed to doing this.

In September 2016, a trial judge in Alberta, as all of you will know, convicted Travis Vader of murder, relying on the offence set out in section 230 of the Criminal Code. Of course, section 230 of the Criminal Code is part of the constructive murder provisions and it was struck down by the Supreme Court of Canada 25 years ago. Unfortunately, despite its presence in the Criminal Code, it's not part of the criminal law of Canada.

This was exactly one of the flaws in the Criminal Code that a large group of criminal law academics pointed out to the Minister of Justice in a letter in December 2015. It was the same failure to update the code to remove constructive murder that led the British Columbia Court of Appeal to observe, in a 2010 decision:

I cannot leave these reasons without wondering why steps have not been taken to amend the Criminal Code to conform to the now 20-year-old decision of the Supreme Court of Canada in Martineau determining that language in s. 229(c) is unconstitutional. The law that is recorded in the statute, on which every citizen is entitled to rely, is not the law of the land. An issue such as arose in this case should not occur. It creates the risk of a miscarriage of justice and the potential need to incur significant costs addressing an error in an appellate court with the possible costs of a new trial, assuming one is practical. In my view, failure to deal appropriately with such matters by updating the Criminal Code to remove provisions that have been found to offend the Constitution is not in the interests of justice.

As I say, that's a 2010 decision called Townsend. They reached that conclusion by citing other judgments in which exactly the same thing had happened, ranging from 1997 on to 2008, in which juries had been told that the law around murder was what was set out in the Criminal Code, when of course, it's not. That seems like a glaringly obvious point but it's worth stressing it.

Section 19 of the Criminal Code says that ignorance of the law is no excuse. We rely on the fiction that every member of the public actually knows the law, but that's really only justifiable if it's possible for a person to find out the law. One of the key principles of fundamental justice, guaranteed by section 7 of the charter, is the principle of legality, the notion that the law must be knowable. It's why we have the strict construction rule of statutory interpretation. It's why section 9 of the Criminal Code abolished common law crime. It's the reason that laws can be struck down for being vague. If it's not clear enough what the law is, we say, then the law is unconstitutional.

We have all sorts of fundamental and important rules insisting on the language of the Criminal Code being as clear as it can possibly be, and yet, in that context, we have provisions that unambiguously state as the law what is unambiguously not the law, and we allow that to continue for decades. That is, frankly, dumbfounding.

The trial judge in the Vader case received a certain amount of criticism. At some level, that's understandable. We expect judges to know the law more than ordinary people do, but the general public doesn't have access to an annotated Criminal Code. The general public will go online. They're going to go to the Department of Justice's website, the official Government of Canada website, and they will look up the Criminal Code and it will lie to them about what the law is.

Of course, it's not just the general public; it's the police. The police should be able to look at a statute that actually reflects the law of Canada. When that's not the case, then of course we get the situation that we have faced in Canada, with dozens of people criminally charged with an offence that does not exist—the prohibition on anal intercourse in section 159.

Of course such charges are eventually thrown out, but that's of very little solace to the person who has been caused the embarrassment and expense of going through that procedure. We can say, “Well, you know, the police should have known better than to believe that the criminal law was what the Criminal Code said it was,” but that hardly seems like an answer.

Let's think again about the blame given to the judge in the Vader case, in not knowing that section 230 had been struck down. Okay, yes, he should have known.

On the other hand, all it means is that he failed to evade a trap that had been set for him. Surely a legitimate question to ask is why we are setting traps for our judges. If someone falls because they don't notice that their shoelaces have been tied together, a lot of the blame has to go to the person who tied the shoelaces together. If a judge doesn't notice a trap, which was set in the law, a good part of the blame has to go to the person who set the trap. In this case, that's Parliament. It's you. There is no good reason that this situation should have been allowed to continue for decades, but Parliament has allowed it to do so.

How much work would it have taken to avoid the pitfall that arose in the Vader case and the ones that can potentially arise from the other unconstitutional provisions? Realistically, a summer student in the Department of Justice, spending two hours some afternoon, could have headed this off. It's hard to see how the drafting or passing of such a bill could have occupied any real legislative time since the Supreme Court of Canada has already done all of the policy work of deciding that the provisions are unconstitutional.

Now it's fair to respond that not every situation is the same. When the constructive murder provisions were struck down, it was clear that nothing needed to be put in their place. When loitering, in paragraph 179(1)(b) was struck down, the Supreme Court provided some guidance as to what a constitutional law would look like, so you would have needed a bit of time to draft a new bill that was constitutional. When the abortion provisions were struck down in 1988, the Supreme Court didn't actually say that no abortion provisions could exist, just that these ones were no good, so yes, some time might have been needed to decide whether we would do something else instead, and if so, what.

The key point to note here, though, is that it only means that the second step might vary. The first step, invariably, is unchanging and utterly non-discretionary. The existing law is no law, and it has to be removed from the Criminal Code. Whatever might happen after that, there is no reason not to do that in the short term.

This leads, I have to say, to my major concern here today. As I've said, there is no conceivable reason, finally, after decades, no to remove these unconstitutional provisions from the Criminal Code. We nonetheless seem to be faced with the real possibility that this Parliament will not do it.

The provisions dealing with the removal of unconstitutional provisions used to be in their own bill. It used to be Bill C-39. For some reason, that bill, which contained nothing else and had no real possibility of attracting any controversy, and those sensible and uncontentious provisions have now been placed in Bill C-75, which contains many sensible and many contentious provisions.

Personally, I think some of those other proposals are very good, and some, I think, have just not been thought through, so it's difficult to actually tell whether they are wise or unwise. This bill needs to be thoroughly debated and passed through both Houses with barely a year left until the next election. It won't be surprising if that doesn't happen.

That means that we're faced here with the choice between rushing through potentially far-reaching reforms without adequate consideration as the price for solving a long-standing and fundamental problem, or allowing that long-standing and fundamental problem to continue as the price for not creating further and bigger ones. That's not an easy choice, and it is not in the least apparent as to why we should have been forced to it, or why Bill C-39 couldn't have been proceeded with on its own.

Ultimately, I do commend to you the portions of Bill C-75 that do the sensible thing of removing these unconstitutional provisions, and I hope there is some fashion in which that can happen, whether the rest of this bill goes forward or not.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Now we'll have Mr. Hooper and Mr. Kinsman.

[Professor Tom Hooper, Contract Faculty, Law and Society Program, York University, As an Individual]

Thank you for inviting us to speak here today. I'll be sharing my time with Professor Kinsman.

We're here representing a group of gay and lesbian historians, with expertise in the policing of queer sexualities. We're here to follow up on the 10th report of the Senate human rights committee, which called on this government to address archaic laws used to criminalize LGBTQ2 people in Canada. I really mean archaic: indecent acts, vagrancy, bawdy houses. This is like the Antiques Roadshow of the Criminal Code.

Bill C-75 repeals section 159, anal intercourse, and this is an important part of thePrime Minister's recent apology to LGBTQ2 people, in which he specifically referenced the criminal provision against buggery and the harm caused by it. Acknowledging this harm, the government passed Bill C-66, which allows those convicted of this offence to apply to have their records expunged under certain conditions.

The repeal of anal intercourse is part of the larger effort to eliminate what has been labelled “zombie” laws. These laws are still on the books despite court rulings specifically declaring them unconstitutional. The Prime Minister also apologized to those arrested in the bathhouse raids, and he specifically referenced the injustice caused by the bawdy house law, but this was excluded both from Bill C-66 and the bill before us today. This is because the bawdy house law does not precisely fit the government's narrow definition of a zombie law. It has not explicitly been declared unconstitutional by the courts. It's not a zombie law. It's a different kind of monster. It's a Frankenstein law.

Why am I using this broad cultural reference to Frankenstein to describe the bawdy house law? Well, I'm going to give you three reasons.

First, like Frankenstein, the bawdy house law is a 19th-century relic. It was included in the original 1892 Criminal Code as a prohibition against brothels and other spaces of sex work. It was amended in 1917 to include places of indecency, in an effort to close massage parlours. This law is anachronistic and it must be repealed.

The second reason I am calling this a Frankenstein law is that like Frankenstein's monster, the bawdy house law is known to cause harm. In the 2013 Bedford decision, the Supreme Court found the bawdy house law to cause harm to sex workers that is grossly disproportionate to the objectives of the law. As a result, the reference to prostitution was removed from the bawdy house law under the Protection of Communities and Exploited Persons Act in 2015, PCEPA.

PCEPA maintained many unjust laws, including the bawdy house law and its reference to indecency, which was used by police to raid bathhouses. From 1968 to 2004, more than 1,300 men were charged in bathhouse raids all under this law. You heard last week how this caused harm to gay men like Ron Rosenes, a member of the Order of Canada who to this day has a police record from being charged in the 1981 Toronto bath house raids.

The government has specifically apologized for this unjust law. Why do we need to be here to ask for its repeal? Men like Ron Rosenes deserve to have their records cleared.

The third reason I'm calling this a Frankenstein law is that like Frankenstein's monster, the bawdy house law does not resemble the intention of its creator. This law was created by Parliament to criminalize brothels and other sexual spaces based on a community standard of morality.

The 2013 Bedford decision led to the removal of sex work from this law. This left behind the vague concept of indecency, which was significantly altered by the Supreme Court in the 2005 Labaye case. In that decision, the law was not declared unconstitutional; instead, it was rewritten by the court. The definition of indecency was changed from a community standard of morality to a standard based on non-consensual harm.

This new definition of a bawdy house is a very serious offence and is totally unrecognizable from what Parliament intended. What was once a morality law against brothels has turned into a heinous, violent crime. What type of establishment would allow such acts of non-consensual harm? Is a 19th-century morality law the best tool to combat such places?

Such acts are covered under other more appropriate sections of the Criminal Code. It's strange that clause 75 of Bill C-75 amends the bawdy house law to allow the possibility of summary conviction, a lesser penalty. This is inconsistent with the gravity of this offence as the courts have defined it now.

In 1982, then minister of justice Jean Chrétien said to this committee, “As a matter of principle, I believe that if sections of the Criminal Code have fallen into disuse or become obsolete, there was no reason to maintain them.” There were zero charges under the bawdy house law in 2017. Parliament does not need to wait for the courts to repeal this outdated law, especially a law that the Prime Minister has apologized for.

I urge this committee to not only repeal the zombie laws, but also the Frankenstein laws, and all other laws crafted in 19th-century morality that have criminalized LGBTQ2 people and sex workers.

Thank you.

[Professor Gary Kinsman, Professor Emeritus of Sociology, Laurentian University, As an Individual]

Thanks, Tom.

Also, thanks to Dean Leckey for the support from McGill for the position that we are putting forward today before this committee.

The act of indecency section of the bawdy house law is linked to a broader legal construction of same-gender sex as indecent in Canadian history. This is also the case with the indecent acts offence. These sections have been and continue to be used to define LGBTQ2S practices as more indecent than similar heterosexual activities, mobilizing discriminatory practices against our communities.

In this presentation, I'm drawing on extensive research and writing that I've done, along with other members of our group, on the regulation and policing of consensual sexual activities in Canada. Since the late 19th century, the offence of indecent acts has been used to arrest LGBTQ2S people in bars, clubs, parks and washrooms. In these situations, the individuals involved have constructed relations of privacy and intimacy for themselves, hidden from view behind trees or bushes, and in cubicles with locked or closed doors, and have not been trying to bother other people. Often they have been entrapped by the police invading their privacy.

Police often used indecent acts instead of gross indecency or buggery charges because it was a lesser offence, and it was easier to prove in court. In the national security purge campaign, which the Prime Minister apologized for against LGBTQ2S people, indecent act was the charge that the RCMP threatened to use to get gay and bisexual men to give up the names of their friends in the public service and the military, so that the police could then purge those individuals.

In Ontario, following the mass resistance to the bath raids in the early 1980s, the police used targeted surveillance, including the use of video surveillance equipment, for indecent act arrests. These occurred in St. Catharines, Welland, Oakville, Oshawa, Mississauga, Guelph, Kitchener-Waterloo, and at the Orillia Opera House. The names of those charged were released by the police to the newspapers, leading a man in St. Catharines to kill himself.

According to the Right to Privacy Committee, 369 men in Toronto were arrested for indecent acts with other men just between July 1982 and April 1983. Thousands of people were unjustly arrested under the indecent acts offence.

Section 60 of Bill C-75 amends parts of the indecent acts provision. This provision must be entirely repealed. This would also allow those unjustly convicted under indecent acts to apply for expungement of their conviction, which they are currently denied under Bill C-66. It is not listed in that bill, and it is still on the books. This committee can actually make an effort to deal with this historically unjust offence.

Vagrancy is also a broad, ill-defined offence. It has historically been used against sex workers, but also to police people's genders and sexual expressions. Those viewed as wearing the clothes and/or otherwise engaging in the self-presentation of the “wrong” gender were charged under this offence. In a 1994 Supreme Court case, vagrancy was declared unconstitutional, and contrary to the charter. Clause 62 of Bill C-75 removes part of the vagrancy law, but like bawdy houses and indecent acts, the offence otherwise remains intact. It must be entirely repealed.

The targeted use of morality provisions and police entrapment have created historical links and ties between the struggles of LGBTQ2S communities and sex workers. We fully support the position that was presented to you by the Canadian Alliance for Sex Work Law Reform.

In 2015, the justice minister declared, “I definitely am committed to reviewing the prostitution laws”. Three years later, it is past time to act. In the broader context of repealing laws criminalizing sex work, we join the call for the repeal of the material benefits and advertising offences, which create unsafe working and living conditions for sex workers and puts sex workers at risk.

There are many other laws that have been used to criminalize the consensual activities of LGBTQ2S people that must be addressed, but are not mentioned in Bill C-75. We certainly hope they will be acted upon soon. These include obscenity laws that have been used against LGBT bookstores and publications and to construct non-conforming sexual representations as more obscene and indecent than similar heterosexual ones.

We also fully support the concerns that the Canadian AIDS/HIV Legal Network and many others have raised regarding the sections of the Criminal Code being used to unjustly criminalize those living with HIV.

In conclusion, we urge you to end the reliance of the Criminal Code on enforcing morality. This is done through various sections that define our sexualities as indecent and criminal. Instead, criminal offenses should be directed where they really need to be, which is on actual violence and actual harassment.

The apology process to our communities demands that the bawdy house laws and indecent act and vagrancy provisions are entirely repealed in Bill C-75. Otherwise, that apology remains flawed and unfulfilled. You have the opportunity to fix this now. We hope you will take it.

Thanks.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Ms. Barnett.

[Calla Barnett, Board President, Canadian Centre for Gender and Sexual Diversity]

Thank you.

I appreciate the space that's being provided to me and to the centre today to have our voices heard and to speak for those who cannot. I'm here for them, for me and for all Canadians who value justice and equality. We're here in solidarity with the LGBT historians, and we fully support the points raised by Egale and Mr. Leckey.

Before I begin, I would like to acknowledge that these proceedings are taking place on unceded Algonquin territory.

As indicated by my colleagues today and last week, Bill C-75 is a wonderful opportunity for us to honour the apology made by the Prime Minister and address the continued criminalization of the LGBTQ2SIA community and the lack of bodily autonomy experienced by members of our community.

That said, before I make my critiques and recommendations, I would like to offer my commendation for the inclusion of the repeal of anal intercourse as a crime. This repeal is a step forward, and the change is long overdue. Thank you.

However, if we stop at this issue, this bill will become a lost opportunity for so many other overdue changes that would bring justice and equality to the LGBTQ2SIA community and all Canadians. We are everyone and we are everywhere.

The lack of repeal of the bawdy house law and vagrancy, nudity, immoral theatrical performance and indecent exhibition laws remains a serious point of contention between our community and the government. The apology delivered last year by the Prime Minister explicitly refers to the use of the bawdy house law to criminalize the LGBTQ2SIA community; however, no action has been taken on this issue.

The effects of these laws continue to cause harm in our communities. The people who have been charged and convicted under them have lost their families, their loved ones and their careers. They live in precarious situations. Some have taken their lives. Those who are still with us cannot have the records erased until this law is repealed. They continue to live with the shame of such treatment, as some have for over 30 years. This state-caused harm has been acknowledged by the Prime Minister himself and yet continues to be put aside.

The criminalization of sex work has been ruled unconstitutional by the Supreme Court, specifically in the 2013 Bedford case. Unfortunately, the PCEPA reconstituted a number of those crimes deemed unconstitutional, including communicating, obtaining sexual services for consideration, material benefit from sexual services and procuring, and advertising and material benefit in advertising, which work together to isolate sex workers. They cannot screen clients or hire security or administrative support. Such laws continue to put sex workers in danger.

Local, provincial and federal police services continue to use the existing legislation to harass and criminalize folks who should be allowed to do their jobs with the support and protection of the state. We strongly recommend that a clear decriminalization of sex work be included in Bill C-75.

Bill C-75 fails to protect intersex children from non-consensual surgery. In June 2017 the CCGSD came out with our “Pink Agenda”, making it clear that we stand in solidarity with intersex communities and their right to decide what is best for their bodies, yet today subsection 268(3) of the Criminal Code of Canada allows non-consensual surgery by medical professionals to alter the bodies of infants and children whom they perceive to be ambiguous, that is, intersex.

In doing so, the bodily autonomy of those infants is removed by the state, the parents and the medical practitioners who make these decisions and perform these surgeries. This causes undue harm because of their own discomfort. For example, Kimberly Mascott Zieselman, who published an opinion piece in USA Today in 2017, had her testes removed without her consent when she was 15. This surgery led her to take hormone replacements for the rest of her life.

She was not even informed that she had had this surgery until she was 41 years old. Imagine finding out that part of your body had been removed without your consent. Imagine that it led to a continuing medical condition and medical expense for the rest of your life. That's what we allow with this law. We strongly recommend that the repeal of subsection 268(3) be included in Bill C-75.

Bill C-75 fails to limit the laws that allow the criminalization of HIV. We have been asking for clarity on this. To this day, and regardless of the government's own report, the criminal justice system's response to the non-disclosure of HIV, which states that HIV transmission is a public health issue instead of a criminal issue, is that the non-disclosure of HIV is treated as an aggravated sexual assault in the criminal justice system.

In that same report, it is demonstrated that sexual activity with a person living with HIV who is taking treatment as prescribed and has maintained a suppressed viral load “poses a negligible risk of transmission.” The continued ability to criminalize the non-disclosure of HIV is in direct opposition to the government's own evidence-based report.

Bill C-75 can be used to limit this law. It can be used to ensure that non-disclosure of HIV is not criminalized and that members of the LGBTQ2SIA are not discriminated against by homophobic, transphobic or otherwise rogue Crown attorneys. However, as it is written, it does not.

My last point is that Bill C-75 fails to properly define “marginalized person”. While C-75 would require judges to consider the circumstances of an accused person from a marginalized group when deciding on bail conditions, the lack of definition of “marginalized persons” can be interpreted to exclude the LGBTQ2SIA community. We strongly recommend the explicit inclusion of LGBTQ2SIA in the definition of “marginalized persons” in C-75.

Thank you very much for listening.

[The Chair, Liberal, Anthony Housefather]

Thank you very much for your testimony. I appreciate it because a lot of the issues raised by this panel are new and have not been raised by previous witnesses. That's very much appreciated.

We'll go to the first round of questions.

Mr. Cooper.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Mr. Chair.

Professor Coughlan, I appreciate your submission with respect to zombie laws. You mentioned the case of Travis Vader, who murdered Lyle and Marie McCann, an elderly couple from my home community of St. Albert. Following Justice Thomas's decision and under the leadership of our chair, this committee wrote a letter to the Minister of Justice calling on the government to introduce legislation to repeal “zombie” sections of the Criminal Code. Bret McCann, the son of Lyle and Marie McCann, approached me shortly thereafter, and he and I had a press conference, along with his wife Mary-Ann in St. Albert in December 2016.

You're quite right. In March 2017, the Minister of Justice did introduce Bill C-39, and then it sat at first reading. Nothing went forward. I asked the minister repeatedly about the reason for the delay on a matter that is not controversial. As you pointed out, there is no conceivable reason for unconstitutional sections of the Criminal Code to remain in the Criminal Code, in black and white, purporting to be the law. As a result, we're now faced with this situation. A very straightforward bill, which could have been passed with unanimity, is now tied to a massive omnibus bill.

I am in touch with the McCann family, and they are quite distressed. They have spoken out in deep frustration over this government's inability to get it done.

I should note—you mentioned section 159 of the Criminal Code respecting anal intercourse. Similar to the way the government handled section 230, they introduced a stand-alone bill, Bill C-32, back in the fall of 2016. They made a big fuss about it, but it was such a priority for the government that it remained stuck at first reading. No action was taken on it. They then reintroduced the repeal of section 159 with the introduction of C-39 on March 8, 2017. Again, it was such a priority that it's stuck at first reading. Now we have Bill C-75.

You are quite right when you note that it's not just this government. Previous governments didn't repeal unconstitutional sections. Going forward, if we can get these sections repealed, what do you suggest should occur to prevent this from happening again? Presumably this bill will pass and these sections will be removed, but inevitably there will be new sections dubbed unconstitutional. What steps should Parliament take to be proactive going forward?

[Prof. Steve Coughlan]

I would note two things in that.

One is that it is worth observing that although the things that Bill C-39 would have done are duplicated in Bill C-75, Bill C-39 still exists. There is actually no reason that Bill C-39 couldn't be proceeded with, even if Bill C-75 is not.

On the go-forward basis, though, it seems to me that there's no good reason that the Department of Justice couldn't, every two years, have the charter cleanup bill. Year 2018 is what Bill C-75 will be, but why not the charter cleanup bill 2020, the charter cleanup bill 2022? It's just tiny little housekeeping tasks and, like any other housekeeping, you keep on top of it a little at a time and it doesn't become overwhelming.

It probably doesn't need to be done annually. It's not as though charter challenges are successful as often as that, but if biennially the Department of Justice simply looked at whether there are any of these basic administrative tasks that need to be done to the Criminal Code—and did that every two years—we'd stay on top of this.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

As we saw in the case of Travis Vader, the consequences of inaction are real. This is not some abstract academic issue. The McCann family waited six years for justice. Just as they thought that justice had finally arrived when Travis Vader was convicted of two counts of second-degree murder, literally that afternoon, they found out that there may be a problem with that verdict.

A few years earlier, it's my understanding that there was a case in British Columbia involving murder, in which the trial judge left a copy of a zombie section of the Criminal Code with the jury in the trial, and it was appealed to the British Columbia Court of Appeal. The murder conviction was not overturned. It was upheld only on the basis of the trial judge's impeccable instructions to the jury.

What regard to what happened in the case of Justice Denny Thomas misapplying section 230, it was not the first time that this has happened.

[Prof. Steve Coughlan]

By no means no, and I think the case you're referring to is Townsend.

At least three times that I know of, at the end of a murder trial, juries have gone off to deliberate, and they've made the perfectly reasonable request that they have a copy of the portions of the Criminal Code that are relevant. Someone has made the perfectly reasonable decision that they'll give them a copy of the Criminal Code provision. It has never occurred to them that the Criminal Code provision was unconstitutional and wasn't the law.

It's staggering that this situation could be created, not that the people in that moment should behave that way; that's perfectly understandable. What's staggering is that we should have created the conditions where that's possible.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. Boissonnault.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you very much, Chair.

Thank you to all the witnesses for your passion and your advocacy.

Professor Coughlan, I am very much looking forward to getting rid of the zombie provisions, including section 159 and others that you have mentioned. Thank you for your very lucid testimony on the subject.

Calla, I want to put on the record that this committee will be looking at an HIV over-criminalization study later this fall, as early as December, and no later than early 2019. It's something that I put in front of the committee and the committee accepted, so that study is coming.

The question that I have for you, briefly—because I'm using my seven minutes judiciously to get to all four of you—is why is it so important to list LGBTQ2 people in the marginalized person provision?

[Calla Barnett]

That's because it's not always visible that we are LGBTQ2SIA. You can't see it on us, so we would have to disclose to a judge in the first place.

Doing so could put us at risk if we are not explicitly protected under the marginalized person definition. High-risk behaviour that may have come to pass in an LGBT person as a result of that discrimination that they face by society may not be taken into consideration when it otherwise should be.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you.

For the record, is it true that when you use the acronym LGBTQ2SIA, you're referring to the lesbian, gay, bisexual, transgender, queer, two-spirit, intersex and asexual populations?