Evidence of meeting #16 for Justice and Human Rights in the 43rd Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.
A recording is available from Parliament.
1:05 p.m.
Senior Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice
Thank you, Madam Chair.
Neither term is defined, but, as I've stated before, they are used in other contexts. In fact, Mr. Fortin has given quite an excellent definition of gender expression today. The terms are used in many different contexts. We understand what they mean based on the contextual or purposive interpretation where they appear.
I would note that these terms in particular—“practice, treatment or service”—are used in relation to conversion therapy in other pieces of legislation that refer to conversion therapy without definition, because they are understood to have clear, ordinary meaning in that context. I believe not just the rules of statutory interpretation support that, but also the minister's comments when he appeared before this committee support that as well.
Thank you.
1:05 p.m.
Conservative
Kerry-Lynne Findlay Conservative South Surrey—White Rock, BC
Madam Chair, can I respond here to what she is saying?
1:05 p.m.
Liberal
The Chair Liberal Iqra Khalid
If you don't mind, I will address the other members who have raised their hands. I've made a note to come back to you after Monsieur Fortin.
Go ahead, Mr. Maloney.
December 10th, 2020 / 1:05 p.m.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
Thanks, Madam Chair. I'll be brief.
I have just a couple of points. First, I appreciate what Ms. Findlay said about consulting with other members of the committee. I wholeheartedly agree with you, but there are times when a representative from one party will speak on behalf of his or her colleagues when dealing with other members of the committee. Mr. Virani did this on this occasion. I'm sure it happens in your party, too, whether it's Mr. Moore, you, Mr. Lewis or Mr. Cooper.
There was nothing sinister there, which is really the point I want to get at. Mr. Moore has suggested that, out of the blue and unbeknownst to anybody, Mr. Virani showed up today and dropped something on the committee that was outside the scope of anything we had talked about. It couldn't be further from the case. Ascribing any sort of sinister objective to Mr. Virani is not only wrong, but it's a little bit offensive, frankly. The issue was on the table in more than one amendment proposed by Mr. Garrison. We heard ample evidence from witnesses on the subject. I don't think there's anything inappropriate about the procedure whatsoever. We're having a discussion on an issue that's clearly on the table. It was part of the amendments proposed.
As for the minister coming here, I was here when the minister came to the committee and I never heard him say once that this bill is untouchable. He's always, of course, open to amendments. He respects the committee and the process. He respects all the members regardless of what party they are in. He's open to listening to suggestions on amendments.
Thank you, Madam Chair.
1:10 p.m.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Madam Chair.
I would like to come back to the answer to my question the counsel provided earlier. What sticks with me from her answer is that the term “practice” does indeed have a broader scope than the term “treatment”. Treatment, just as practice, is different from service, but it's not clear. There is a grey area between those three definitions. I think the meaning is fairly broad when practice is in question. I also think that, in her opinion, if a parent told their daughter she should put less makeup on or their son not to wear high heels to school, that parent could win the case if they were accused of practising conversion therapy on their child.
I will give you another example, which is fairly frequent. A number of us have had children or still have children at home. As we know, a parent may decide that their child should consult a psychologist for all sorts of reasons. I have known a lot of parents who did this, be it because their child was wetting the bed during the night, because they were bullied at school, because they had behavioural problems or for any other reason.
In that context, let's take the example of an eight-year-old child consulting a psychologist. Let's say that the parent asks the psychologist to look at another issue they observed—in other words, that their son, in addition to wetting the bed, wants to put on makeup and high heels to go to school. Obviously, he is getting teased or beaten by other boys when he shows up to school in high heels. The parent finds the situation frightening and would like the psychologist to talk to their son to make him understand that it is not a good idea to dress this way at school.
In doing so, wouldn't the parent be committing another crime by inciting a professional to commit one, as it would now be considered a crime for a psychologist to tell an eight-year-old child that putting on makeup and high heels to go to school is not a good idea? That would actually be a crime, as it would constitute treatment provided by a health professional to restrict the child's gender expression.
First, I would like to know whether asking a health professional to intervene with the child in such a case would be considered a crime. I would like counsel Levman to tell me what she thinks.
Second, I would just like to make a point. I listened to Mr. Garrison earlier. I completely agree with him on protecting transgender individuals, among others. I have no problem with that, and I want to specify that we at the Bloc Québécois want conversion therapies to be banned. I think the definition is the problematic part. By trying to do too much, we are casting the net too wide.
Aside from the situation I described to Ms. Levman, I would just like to remind you that the issue here is not the protection of individual rights. Our charters prohibit discrimination on the basis of sexual orientation issues, and discrimination based on gender expression could also be prohibited, for example. That's one thing. However, we seem to sometimes forget that this is the Criminal Code, as Ms. Findlay and a number of you have pointed out. The individual—whoever they may be—charged with an indictable offence will carry that charge their entire life, whether they are acquitted or not. Of course, it would be worse if they are found guilty, since that will result in a criminal record, penalties, and so on.
So we must be careful. As Ms. Levman pointed out earlier, and rightly so, more restrictive interpretation rules are adopted in the interpretation of the Criminal Code. We don't want the interpretation to be too broad. But it seems to me that the net is being cast too wide here. The amendment proposed by Mr. Virani and those proposed by Mr. Garrison confirm to me that the net is being cast very wide.
Once again, instead of very broad protection being ensured, the door is being opened to very broad interpretation that will result in individuals being incriminated, and that really worries me.
So I just wanted to remind the committee of this, and I would like Ms. Levman to tell me what she thinks about the situation I described. In other words, if a parent asks a professional, such as a psychologist, a social worker or a teacher, to speak to their eight-year-old child who wants to put on makeup and high heels to go to school, could that parent be accused of inciting someone to provide their child with conversion therapy?
1:15 p.m.
Senior Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice
Thank you, Madam Chair.
You referenced my stressing the statutory interpretation principle of narrow construction of criminal legislation, but it goes beyond that. It also has to be a purposive and contextual interpretation, and that means that courts will have to look at the overall objective of the legislation, and that is to stop practices that are designed to change identity to conform with societal norms.
In cases like the one that Monsieur Fortin is describing, those principles would all be at play.
Then I would just remind the committee that we can't look at the definition in a vacuum without also looking at the corresponding offences. I believe Monsieur Fortin was referring to the proposed offence that would be causing a child to undergo conversion therapy, so that activity would also have to be proven in a case such as the one that he raised.
Thank you.
1:15 p.m.
Liberal
The Chair Liberal Iqra Khalid
Thank you very much.
Just for members' clarity, the debate we're having right now is on what is amendment LIB-1, which is the new language that has been proposed to everybody by email today, and not on NDP-2.
If there's no opposition, NDP-2 can be withdrawn, just for procedural clarity. Is that okay with everybody?
Okay, I see consent.
(Amendment withdrawn)
Madame Findlay, you are next.
1:15 p.m.
Conservative
Kerry-Lynne Findlay Conservative South Surrey—White Rock, BC
Thank you.
I'm getting more confused as we're going along here. In answer to Monsieur Fortin's question on gender expression, I believe Ms. Levman answered based on gender identity. Those are two different things. I think this is the struggle here at the moment with LIB-1, as you were referring to it, Madam Chair.
Again, Ms. Levman used the expression “the definition” and yet confirmed to me that there is no definition in the Criminal Code of Canada. It's getting confusing to me because we're conflating two or three different issues. Right now, LIB-1 is before us, as I understand it, and that has to do with gender expression, something that is already spoken to in the Criminal Code and human rights legislation, but is not defined, as has been confirmed.
Also, in the earlier response from Ms. Levman to my question—this is what I think I was talking about, because time's going by here between my ability to follow up—she used a phrase along the lines of “ordinary use” or something like that. This is what the struggle is here. “Gender expression” is very broad. We heard that from testimony from several witnesses. As someone who has to vote on this, I myself am not clear on exactly how much that captures under criminal sanction now. When Ms. Levman spoke to “ordinary use”, I don't believe there is an ordinary use of that term. I'm open to hearing from others about it, including my friend Mr. Garrison, on what the ordinary use of the term is. From what I'm hearing from Monsieur Fortin, what I feel myself and what I've heard from witnesses, there is confusion about what that would encompass.
There has been a lot of reference here back to the testimony of Minister Lametti in the beginning of our deliberations here. As I pointed out before, one of the first things the minister said when he spoke to this bill was that there seems to be confusion about the scope of this bill. It is up to the government, with their own legislation, to remove that confusion. This is exactly why we're struggling with very broad definitions, for which now the proposal is to expand those definitions and make them even broader. To my mind, that makes them even more confusing and harder to pin down.
I don't know if Ms. Levman has more she wants to say to explain to me what she meant by “ordinary use”, but I'm open to hearing it.
1:20 p.m.
Senior Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice
I'm sorry. I'm not sure about the reference to “ordinary use”. I think that I have, though, acknowledged that gender expression is a broad term. It does have meaning in law. I believe I said that. It's used in other areas of law. I also referenced established rules of statutory interpretation—not just for “gender expression” but for terms like “practice” and other terms in the definition of conversion therapy in the bill—in terms of how courts will apply those principles to these terms, or that they will.
First and foremost, there's the narrow construction of criminal statutes or criminal legislation, and also the fact that legislation has to be interpreted purposively, which means consistent with its objectives. That's where my reference to “gender identity” came in, because the overall objective of the bill is to stop practices that are designed to change gender identity to cisgender. We know that those types of interventions often involve efforts to reduce or repress gender expression. As I explained at the beginning of my remarks, it's my understanding that at least one of the main intentions behind including this amendment is to address certain evidentiary issues that are of concern.
Thank you.
1:20 p.m.
Liberal
1:20 p.m.
Conservative
Rob Moore Conservative Fundy Royal, NB
Thank you, Madam Chair.
I have to comment on one thing. Mr. Maloney said that I inferred that something was “sinister”. I guess those are his words, not mine. I did not say that anything Mr. Virani did was sinister, and I don't think it is.
What I'm saying is out of respect for everybody. The government knew last night that this amendment was going to be table-dropped, because they included a change to the preamble. That was at 4:30, so there is no doubt.... I don't think anyone could argue—I hope—with the fact that we are dealing with something that has been table-dropped. It is completely unfair to your colleagues to expect us to be ready on the spot to deal with what has been table-dropped. This is why we have deadlines for submitting amendments to legislation.
That was his language; it's certainly not mine. I think there is absolutely no doubt, however, that what the government has done here today has caused a lot of problems with our ability to do clause-by-clause. There's no doubt about that, because members did not have the benefit of having this even one day in advance, let alone a few days in advance, as we had agreed to.
I think it's very clear that the government has now table-dropped an amendment to this legislation that, in the department's own words, greatly broadens the definition, because “gender expression” is a broad term. It is also, on the departmental expert testimony, an undefined term in the Criminal Code. We have a term that's undefined in the Criminal Code and that broadens the definition.
Not to belabour it, but there was reference to the charter statement on this legislation. The charter statement that I saw was based on Bill C-6 as presented by the minister to our committee. The new change that the government has table-dropped is an expansion of Bill C-6, and if there has been an updated charter statement, I haven't had the benefit of seeing it. It could be that it's on the departmental website; I don't know.
My question to the department is this. We've seen the charter statement—and the minister spoke to this in his testimony—on what was Bill C-6, the original version. Is there an updated charter statement with this amendment?
1:25 p.m.
Senior Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice
Thank you.
No, we don't tend to update charter statements. My understanding is that it still applies to what you're looking at today. All of the charter considerations are outlined there; they all remain the same considerations.
Thank you.
1:25 p.m.
Liberal
The Chair Liberal Iqra Khalid
Thank you.
I'll call the question on amendment LIB-1.
For members' clarity, the vote on LIB-1 will apply to the vote on G-1, because they are consequential to one another. Also, if LIB-1 is adopted, NDP-3 and CPC-1 cannot be moved.
(Amendment agreed to: yeas 6; nays 5 [See Minutes of Proceedings])
LIB-1 and G-1 are adopted, and consequently NDP-3—
1:25 p.m.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
My apologies, Madam Chair. I would like to get a clarification.
Amendment LIB-1 came from Mr. Virani. However, you also mentioned amendment G-1. What are you talking about?
1:25 p.m.
Liberal
The Chair Liberal Iqra Khalid
G-1 is the amendment at the very last page of your package, which refers to just adding that same language that we've been debating to the preamble.
1:25 p.m.
Bloc
1:25 p.m.
Liberal
The Chair Liberal Iqra Khalid
No, we just adopted LIB-1 and G-1. We just voted. The vote was counted and....