Good afternoon.
I am a lawyer in Toronto, Ontario, with extensive experience conducting complex criminal trials and appeals for all manner of offences. Thank you for providing me with the opportunity to testify respecting this proposed conversion therapy offence.
There are three main problems with this legislation as currently drafted. I will suggest solutions to all these problems that I think are simple and consistent with a lot of the evidence you've heard.
The first problem is that the definition of conversion therapy is overly broad and imprecise. It's likely to capture situations that are not actual conversion therapy and cause confusion. The second problem is that the existing exception for medical treatment is too narrow, because it specifies only one lawful form of treatment: gender transition. The third and final problem is that the exception allowing exploration of identity is unclear and does not adequately protect charter freedoms.
On the first problem, that the definition of conversion therapy is overly broad and imprecise, multiple provinces have, or are considering, conversion therapy legislation. In all cases, this legislation is passed pursuant to the provincial power to regulate health care. In order for this bill, Bill C-6, to be a valid exercise of the federal criminal law power, it must have a criminal public purpose, which means some specific public evil that is targeted. In this case, I think everyone can agree that the target is coercive and harmful practices that are designed to change a person's sexual orientation or gender identity.
The bill defines conversion therapy as the following:
a practice, treatment or service designed to change a person’s sexual orientation to heterosexual or gender identity to cisgender, or to repress or reduce non-heterosexual attraction or sexual behaviour.
There are many difficult-to-define and undefined terms and words in this definition, and there are many difficult concepts that will be very difficult for criminal courts to nail down. This will prove to be a very difficult definition to interpret for the many, many reasons you've heard from different witnesses.
Realistic situations will arise that may be captured by this definition. For example, we have already heard mention of whether a therapist will be allowed to assist an adult person who wants to go through a detransitioning process, or whether a youth who is experiencing gender confusion will be able to access any therapy that would be affirming of their birth gender. There are many other situations as well. The difficulty is that if this definition is not properly tailored, it will be seen perhaps to not only be unconstitutional, because it regulates “criminal” in the field of health care, but to also be overbroad and contrary to section 7 of the charter.
My first suggestion is very simple. You need to restrict the definition to “a coercive practice”. I suggest that the definition should read, “Conversion therapy is a coercive practice.” This is a clear definition of a criminal public purpose. “Coercive” is a well-known term in the Criminal Code. It comes up in other sections. You can also consider whether you want to add the requirement that conversion therapy “causes harm”, whether that be bodily or psychological harm. Those are also well-defined concepts in the Criminal Code.
The other problem with this definition is mainly in the last part. If we define conversion therapy as “a coercive practice designed to change sexual orientation or gender identity” and remove all the extraneous language with relation to specifying “sexual orientation to heterosexual or gender identity to cisgender, or to repress or reduce" attraction or behaviour, we can be very much more simple in our definition here by saying, “Conversion therapy is a coercive practice designed to change sexual orientation or gender identity.” You can remove the rest of the language.
The second problem is with the medical treatment exception. It specifies only one sort of medical treatment that's allowed, and that's gender transition. Other medical exceptions in the Criminal Code, in order to avoid delving into the provincial regulation of health care, set out objective criteria according to which a judge or a person can understand whether what they're doing is allowed. In the euthanasia provisions and in other provisions in the Criminal Code when medical treatment is discussed, the exception is phrased that any treatment is allowed if exercised with “reasonable knowledge, care and skill". It does not specify one particular form of treatment that is allowed to the exclusion of all other forms of treatment.
Not only is that not allowed and unconstitutional because it would be regulating health care; it would be arbitrary and overbroad, because it captures situations such as treatments that doctors such as Dr. Dobson or some of her colleagues might suggest aren't gender transition. What you need to do is employ objective language.
The third issue has to do with the—