Justice Committee on Dec. 3rd, 2020

[The Chair, Liberal, Iqra Khalid]

That concludes your six minutes.

[Chris Lewis, Conservative, Essex, ON]

That's all I have?

Very well. Thank you.

[The Chair, Liberal, Iqra Khalid]

We'll now go on to Mr. Virani for six minutes.

Go ahead, sir.

[Arif Virani, Liberal, Parkdale—High Park, ON]

Thank you, Madam Chair.

To preface, I want to clarify things, because we've had in the last two hours a lot of misinformation, disinformation or inaccurate portrayals of what's going on.

The first point is that freedom of religion and conscience is protected in the charter. That's in section 2(a).

The second point is that freedom of expression is protected in the charter. That's in section 2(b).

The third point is that Mr. Ruba asserted that freedom of contract or economic engagement is somehow protected. It is not. That's jurisprudence under section 7 of the charter.

The fourth point is that repression is in a proposed definition section of this bill. So too is doing this type of therapy against someone's will. That's in the immediately succeeding proposed section.

Lastly, “affirming” is not in the bill. That's language from the website.

The question I have is about the notion of the chilling of conversations. I'm going to put this to Adrienne Smith. We've heard a lot about this, including someone asserting in the previous hour that if a 14-year-old wanted to engage in sex that was heterosexual, a religious individual who perhaps believed that this was contrary to religious doctrine would be able to tell them they shouldn't do that, but that if they wanted to do it in a same-sex scenario, they would be impeded somehow by this bill.

I personally think that's categorically false with regard to what this bill does and does not do. I'm wondering, Adrienne Smith, if you'd like to comment on whether the chilling of simple conversations is what's targeted here or whether there's something more than that, including therapy, treatment or service that is applied against someone's will.

I'll turn this over to you, Adrienne.

[Adrienne Smith]

Thank you, Chairperson.

I would answer the member that of course this assessment is correct. The mischief that seeks to be regulated by this bill is clear. It does not capture good-faith conversations with faith leaders or with counsellors who are helpful. There is no double standard as compared with same-sex or different-sex or same-gender or different-gender relationships, except that large parts of society condemn queer and trans people and seek by force to restrict their relationships. When people are exercising autonomy over their own health care and their own behaviour, whether they're doing it in a secular, a medical or a religious setting, that type of counsel is not the intended target of this bill.

I think the government's intention has been clearly expressed in several circulars, and I think because this is a criminal prohibition the courts will be narrow in interpreting what is meant to be captured.

The kinds of beneficial conversations with faith leaders and counsellors that some of the witnesses and you have been talking about will in my view still obviously be permitted, despite the efforts of Parliament to capture harm and abuse that is coercive and damaging.

[Arif Virani, Liberal, Parkdale—High Park, ON]

Ms. Smith, I want to continue with you, with your criminal law expertise.

We had people in the previous panel who were not criminal lawyers—who declared that—but were opining on whether this was void for vagueness, whether there would be a section 7 or section 1 problem with respect to this law. These people do not understand the criminal law and do not know what constitutes an offence or what doesn't.

What are you your thoughts on that?

[Adrienne Smith]

I disagree that there is a chill because of doubt. I have no doubt about what conduct is being captured. It is quite clear what is meant, and that is coercive and harmful behaviour aimed at queer and two-spirit folks in order to change them into something they are not.

Supportive conversations are not captured. Conversations at the supper table or in the temple or the synagogue are not going to be captured. What are going to be captured are coercive programs of force and oppression, whether or not those are secular or religious.

I think this is well within a valid exercise of Parliament's criminal power. For the protection of Canadians we ban many things. We ban many kinds of conversations, like threats and hate speech. We ban many kinds of behaviour like assault and sex assault.

In my respectful opinion, conversion programs are akin to those kinds of assaults and trespass and ought to be banned. The court will have no problem sorting out what is meant and what is not.

[Arif Virani, Liberal, Parkdale—High Park, ON]

In my last 90 seconds, I just want to put to you something that has arisen, because people have said that it seems like it's conversion therapy masquerading under another guise. We heard on Tuesday that under gender reassignment counselling that may take place, people are actually being led down a path of conversion therapy. We heard it again this morning from Erika Muse's testimony.

How do we get at that pernicious issue? We know what we're trying to target. We also know that the counselling we've talked about needs to be enabled to occur. People need to be able to ask genuine questions and explore identities. How do we ensure that we're targeting exactly conversion therapy, and not more and not less? Do you have any thoughts on that?

[Adrienne Smith]

I think that importing the words from Bill C-16 on gender expression and identity would be helpful in the current bill. I don't think there's currently a conflict, because this bill is about the federal government's exercise of the criminal law power in restricting a harm.

Regulating what counts as health care is the role of the provinces, and they are fairly unanimous about the fact that conversion programs are not health care; but the kinds of helpful counselling and the entire medically sanctioned process of gender-affirming transition care for trans people is validly medically supported health care. I see no conflict.

[Arif Virani, Liberal, Parkdale—High Park, ON]

Thank you.

In my last eight seconds, I just want to say Mr. Sanchez, Mr. Keslick and the witnesses who came forward before, thank you for sharing your personal experiences and for your courage in testifying. It's to be applauded.

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Mr. Virani.

We'll now go on to Monsieur Fortin for six minutes. Go ahead, sir.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Madam Chair.

I thank all the witnesses for joining us today.

First, Dr. Salway, you said that you think the definition should be amended. I think that just about everyone here has an idea of how such an amendment should be drafted. Ideas can vary.

Can you tell us in clear terms what you are proposing as an amendment to the definition and, if so, send it to us in writing?

[Dr. Travis Salway]

Absolutely. I, along with several of my colleagues, will be submitting a brief with all of these recommendations.

There are three components of the definition that I believe need to be amended, two of which you've already heard about. That is the addition of “gender expression” and also, in the current wording of the definition of conversion therapy, there is a second phrase to define conversion therapy as including practices to “reduce non-heterosexual attraction or sexual behaviour”. We need a similar statement that corresponds to practices that would reduce behaviours, traits, or appearances or expressions associated with a gender identity or gender expression that differs from sex at birth, so that it is properly trans-inclusive.

The third addition I would recommend is adjusting the language around changing sexual orientation or gender identity. From what we heard in talking to people who've been through conversion therapy, that was not how the service was promoted or advertised. Rather, the service was about avoiding LGBTQ2 outcomes or identities. I think we need clarify that, actually, the intention of these services is not so much a change to our intrinsic personhood, but rather an avoidance of LGBTQ2 identity.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Mr. Sanchez, you said earlier that you would want people to be able to have access to discussions or consultations on this topic at any age.

Are you not somewhat worried about the validity of consent?

For instance, do you think that a five-year-old child, as in the example you gave us, is capable of consenting to any kind of therapy or consultation regarding their gender identity or sexual orientation?

[Emmanuel Sanchez]

Thank you so much for your question.

I think that, ultimately, parents are in the lives of their children for a reason, and their children have been given to them for a reason. Do I think that a five-year-old can accurately give consent to a practice such as this? I can tell you that when I was five years old, I was more interested in playing with sand and toys, and making wasps fight each other in containers. There's not a whole lot that I was considering when I was five years old. It was when I grew older. Having the freedom, as a teenager, to choose the type of support and counselling I wanted was incredibly beneficial.

My concern is that if Canada believes that, at 16 years old, I can consent to having sex with whomever I want, why don't they—

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Allow me to interrupt you, Mr. Sanchez. You said that earlier, and I understood it. I don't want to be impolite, but my time is limited.

What I wanted to know is whether you think a five-year-old child can give their consent.

In your case, at five years old, did you have the same insight you have today on that situation?

[Emmanuel Sanchez]

Sir, I would say that if a child can give consent to gender transition, they can give consent to counselling, as well. Let's not be divisive, and let's not be biased in this.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you.

Ms. Smith also proposed an amendment. I would like to have some clarifications and perhaps something written on this if possible.

Ms. Smith, can you specify what kind of an amendment seems desirable to you in that respect?

[Adrienne Smith]

Thank you, Madam Chair.

I have proposed a number of amendments. Could the member specify which one he is talking about?

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I would like you to talk to me about the amendment you are proposing to the definition and, if possible, for you to send it to us in writing. I would actually like you to suggest to us in writing what you think would be useful to make the bill more adapted to realities.

[Adrienne Smith]

Yes, absolutely. I will forward you a short write-up.

I think that sexual identity, gender identity and gender expression are terms that should be included in the definition to clarify it.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Okay.

There actually appear to be two definitions in section 320.101. The provision talks about what is banned and, at the end, what is allowed. It is somewhat divided. So I understand the grey areas you are telling us about, but my concern is the exclusion—in other words, what will be allowed.

I think that everyone agrees that conversations in good faith should be allowed. I see them as undirected conversations, but that is what I would really like to hear your opinion on.

How should the exclusion be defined?

[The Chair, Liberal, Iqra Khalid]

Thank you.

Unfortunately, we're out of time. Hopefully, Adrienne Smith can answer your questions in your next round.

Thank you very much.

We will now go to Mr. Garrison for six minutes.

Go ahead, sir.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Madam Chair.

I'd like to go first to Dr. Salway. Some aspersions were cast on his professional research, and I'd like to give him a chance to talk about that.

In your original presentation, Dr. Salway, you said that about half of those in your survey, who had been subjected to conversion therapy, didn't think this bill covered their experience. Could you tell us a little bit more about that?

[Dr. Travis Salway]

Absolutely.

Thank you for your question.

I echo your committee members in thanking Mr. Sanchez and Mr. Keslick for bringing their stories here.

My job as a public health researcher is to talk about threats to groups of people, to populations and to the public. What our research shows is that, overwhelmingly, this practice is associated with harm, and that overwhelmingly the people who experience it, experience it under conditions where their sexual orientation, gender identity and gender expression has not yet been affirmed and appreciated. That's the context in which I'm bringing data to you today.

In terms of where the survey respondents felt that the definition didn't quite cut it, the respondents largely fell into two groups.

One is of people who went to a program, service or practice that was advertised not so much to change sexual orientation, gender identity or gender expression, but rather to encourage behaviours that were consistent with particular heterosexual and cisgender values. Nonetheless, the objective of these programs was to avoid having people in the programs expressing LGBTQ2 identities. For them, what would bring the bill around to cover their practices would be a clarification that this is the intention of conversion practices.

The other group is trans and non-binary people who do not see their experiences as being properly covered by that language of changing a gender identity to cisgender.

As I said in my previous comments, I'm happy to suggest some wording for that. We have Adrienne Smith here, who is also suggesting wording along those lines.