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.
12:30 p.m.
Liberal
Arif Virani Liberal Parkdale—High Park, ON
I have several comments to make.
I think Ms. Levman's response is absolutely accurate. I think it strains credulity to think that a conversation between a parent and a child about what to wear on a given day—conversations that I have with my children on any given day, usually related to the weather—would actually amount to a treatment, service or practice pursuant to the Criminal Code. There is an axiom that most lawyers on this committee would recall, which is that the law does not concern itself with trivial things. I would go so far as to say that's quite a trivial concern.
With respect to many of the things that have been raised here by Ms. Findlay and Mr. Moore, first of all, I think Mr. Moore may have misspoken when he said that it sounds like it's narrowing the scope. This amendment is not narrowing; it is expanding. Let's be crystal clear about that.
Second, there was some reference to whether department officials were imputing motive or speculating about why such an amendment would be made. The objective of this amendment is to capture exactly what was articulated, which is different types of therapy masquerading as something they are not, to try to escape criminal liability. That is informed by the testimony we heard from many witnesses, and that is critical. I think Mr. Moore referred to the fact that we need to hear from more experts. I would put it to him that we actually already have.
I would put it to him that I think it's a bit erroneous to assert that somehow we are being surprised by the insertion of “gender expression” at clause-by-clause. Repeated amendments, including my own to the preamble, refer to the term “gender expression”. The term is known to committee members in terms of already being in the clause-by-clause package. It's known in law under the Criminal Code and the Canadian Human Rights Act, and it is certainly known to all of us who went through the committee study, because we heard it repeatedly from witnesses. On that basis, I would think we are more than ready to exercise a decision as to whether this amendment is worthy of pursuit and whether it should be carried into legislation.
Thank you, Madam Chair.
12:35 p.m.
Conservative
Kerry-Lynne Findlay Conservative South Surrey—White Rock, BC
Thank you, Madam Chair.
I understand what's before us, and I understand that I now can make my own decision as to whether I support this amendment or not, but when Mr. Virani speaks to things being confirmed by testimony.... We heard some testimony on gender expression. We heard conflicting testimony on gender expression, but because it wasn't before us in this clause, we didn't know that we would be considering it within this clause.
I find it difficult to understand that an amendment is dropped on us on the floor for which we had to suspend the committee for several minutes. It was dropped without translation, clearly known to Mr. Garrison ahead of time, clearly known to Mr. Virani ahead of time, because Mr. Garrison, with all due respect, stepped back and said he would give the floor to his friend Mr. Virani, his colleague, so that he could put this forward.
Why are we dealing with it in committee, trying to get translations, being told to suspend—which was the appropriate thing for you to do, Madam Chair, in the circumstances—when clearly they had conversations either in the last few days or last night, this morning, I don't know when, yet we only get it here dropped on us at the last minute, changing a definition, expanding the definition?
Yes, I agree with Mr. Virani. It is an expansion of the definition. It's a large expansion of the definition. They can belittle Mr. Fortin's example by saying it's trivial. He was just throwing something out there, in my view, as an example—yes, a trivial one—not actually meaning that specific issue necessarily. He's just trying to understand it, because we don't understand it when it is dropped on us in this way.
For us to be put in a position of having to assume definitions now on an expanded definition makes it very difficult to deal with. It is not the way we normally should proceed, and not the way the government should proceed on a piece of government legislation that is so important. This is a very important bill. There are a lot of Canadians wanting to see how this turns out.
We, on the Conservative side of the House, in our attempts to get some clarity and some comfort for those who are concerned about these expanded definitions, or any definitions, are being shut down, while at the same time we're having expanded versions dropped on us at the last minute, putting us in a very difficult position.
12:40 p.m.
Liberal
The Chair Liberal Iqra Khalid
Thank you, Madame Findlay.
I will clarify that the amendments that were emailed to members today from the floor did have translations, so they were in both official languages.
12:40 p.m.
Conservative
Kerry-Lynne Findlay Conservative South Surrey—White Rock, BC
Once we got them, Madam Chair, but when this first started, we did not have translations and we had to suspend the committee for several minutes—I don't know how long it was in the end—in order to get them emailed to us sitting here, with translation. That could have been prepared ahead of time. That's my point.
Clearly, the government members and the NDP member were talking outside this committee, or they wouldn't have known what they were about to do. We were left not knowing. That's not acceptable.
12:40 p.m.
Liberal
The Chair Liberal Iqra Khalid
Thank you.
Monsieur Fortin, I have you next on the list, sir. Go ahead.
December 10th, 2020 / 12:40 p.m.
Liberal
Mike Kelloway Liberal Cape Breton—Canso, NS
I have a point of order, Madam Chair. I'm having a difficult time hearing. I don't know if anybody else is. There's an echo on my end from you and the last speaker, MP Findlay. I'm just wondering if anybody else has that problem.
12:40 p.m.
Conservative
12:40 p.m.
Some hon. members
Oh, oh!
12:40 p.m.
Conservative
Kerry-Lynne Findlay Conservative South Surrey—White Rock, BC
That's all I need, Mr. Maloney, just so you get the gist.
12:40 p.m.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Madam Chair.
Our colleague Mr. Virani's comment about the trivial or insignificant nature of my example seems a little strange to me. I don't feel that the example I gave is insignificant. If Mr. Virani takes a little time to read law reports, he may find that many things he feels are trivial have nevertheless caught the courts' attention, sometimes as far as the Supreme Court. My remarks were not insignificant, and neither were his. His proposed amendment is far from insignificant. It's important, and I believe it's also worthy of discussion.
I would like to go back to the answer provided to me by Department of Justice senior counsel Ms. Levman, because I take issue with it. I know that a parent's intervention is not a treatment, a psychotherapy service or anything like that; we can agree on that. I do, however, believe it could be considered a practice. If Ms. Levman feels it's clearly not a practice, I'd like her to explain the distinction she makes between “practice”, “treatment” and “service”. One of the principles for interpreting statutes is that the legislator does not speak in vain. In my view, we need to find different definitions for “practice”, “treatment” and “service”.
According to my humble interpretation, which may differ from Mr. Virani's, but which I do not find insignificant, it could easily be argued that it is a practice when a parent, guardian or even a neighbour tells a little boy play to wear pants or, conversely, tells a little girl to wear a dress.
I remind you that the Department of Justice's definition does not refer only to clothing. I had stopped quoting at that point, but to support the argument, perhaps I should repeat that definition. It says that a person's gender expression includes “such aspects as dress, hair, make-up, body language, and voice.” So, many things are included in gender expression. Gender, as understand it, includes quite a few behaviours.
I confess that, as a parent, I have told my daughter that she should not wear so much make-up. From what I understand, by engaging in that practice—and I do feel it can be considered a practice—I would have committed a criminal offence. I'm sure no one wants that.
I am not naive or stupid. I am concerned by the fact that we are drafting provisions of law that can lead to extreme interpretations of that kind, which we do not want when we try to interpret them. I am sure the Minister of Justice doesn't want that, nor do my Liberal, Conservative and other colleagues.
Since we began our work, I have been thinking that clause 5 of Bill C-6, which introduces section 320.101 of the Criminal Code, obviously needs to be rewritten, because it contains the most ambiguous definition ever on such an important subject, and that deserves more attention.
To sum up, I would like someone to explain the distinction being made between a practice, a treatment and a service. Could intervention by someone who is not a professional be considered a practice? We don't mention health professionals anywhere, we keep it in general terms. I know that, for a treatment or service, it has to be a professional, such as a psychologist or physician. However, anyone can engage in the practice of telling a young man that he should not use make-up or wear dresses, or of telling an eight-year-old girl that it's not appropriate to wear so much make-up and that she should wear sneakers to school instead of three-inch heels, for example. These are things that teachers, parents, guardians or friends might say to a young person, and some could interpret them to be a practice prohibited under the Criminal Code. So it would be a criminal offence, which I remind you is a very serious thing.
Thank you.
12:45 p.m.
Senior Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice
Madam Chair, may I reply?
12:45 p.m.
Senior Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice
Thank you.
I would like to say at the outset that Monsieur Fortin and I are in agreement on the expansiveness of the term “gender expression”. I don't disagree with anything he said about its meaning.
In terms of the term “practice”, I do acknowledge that it's broader than the other terms of “treatment” or “service”. As the minister explained in his comments, it means an action that happens habitually or regularly.
I would just take note that every word has to be interpreted in its context and purposively and consistent with the overall objective of the bill, which is to target harmful practices, practices that we have evidence cause harm, and these concern changing gender identity to cisgender and sexual orientation to heterosexual. The terms need to be interpreted in that light.
Courts may also look to places where those terms have been used in other contexts, and in all of those contexts, whether it's the Criminal Code or provincial health care legislation that deals with conversion therapy, we are looking at some kind of formalized intervention. I note that “practice, treatment or service” is used in certain provincial/territorial legislation dealing with conversion therapy.
The overall objectives of the bill are going to influence how those terms are interpreted. Then it's up to the courts, of course, to apply the definition to specific circumstances, to the facts of each case.
Those are my comments on the scope of the definition and in particular the meaning of the term “practice”.
Thank you.
12:45 p.m.
Conservative
Rob Moore Conservative Fundy Royal, NB
You know, the more I'm hearing, the more problematic this is. The one thing I'll agree with Mr. Virani on is that this is an expansion of the definition of conversion therapy. It's introducing new language that the government did not put forward originally. I'm going to ask the department.... I think this certainly opens up the legislation to a charter challenge more than the original wording.
What bothers me, Madam Chair, with all due respect to everyone around the table, is that now it seems plain to me that the intention was always.... And again, all the resources of government, which we in opposition do not have.... This isn't a new bill. It was introduced before the Prime Minister prorogued. It has been brought back. They've had all the time in the world to work on it.
Last night, at the end of the day—I think it was around 5:30 here Atlantic time, so it would have been 4:30 eastern time—we received a government amendment to their own legislation. Did it amend this clause? No. It amended the preamble to include “gender expression”. I thought at the time, “Why are they amending the preamble to include gender expression but not amending the bill to include gender expression?” It would have been nice to have that amendment last night. We didn't.
Now we fast-forward to today, when we're trying to do clause-by-clause on what is an important bill, and the government table-drops this amendment without an explanation, without hearing witness testimony on what this amendment would do, how it broadens the bill or what the effect would be. To me, it's completely unacceptable that we would conduct ourselves that way. It would be more excusable if it came from an opposition party, because we don't have the resources of government.
All of us were told to get our amendments in on time, which we all did. The Green Party—and they certainly don't have the caucus resources of the larger parties, let alone government—got their amendments in, as did the NDP, and we put forward amendments to this bill, on time. Then last night, at end of day, we get a government amendment to the preamble that doesn't make any sense, because it doesn't align with the legislation.
Then, midway through clause-by-clause, they table-drop an amendment. That is 100% unacceptable. I don't know how they expect opposition parties to be able to deal with that. They come to the table without a clear explanation of what the bill does or what the change does, only to say it's more expansive and it's going to capture more things. Of course it does. Originally it said “sexual orientation” and “gender identity”. Now it says “gender expression”, but we as parliamentarians do not have a clear idea of what that is going to capture in our Criminal Code legislation.
I'm really disappointed. It's completely unacceptable. I don't know why we didn't receive the government's amendment last night when we received the amendment to the preamble.
Anyway, it is disappointing, and I would like an answer on this. In my view, a broadening of what is captured in the definition will almost certainly result in a greater chance of the legislation being struck down under the charter.
Maybe we could get an answer on that. Thank you.
12:50 p.m.
Senior Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice
Madam Chair, I assume that's over to me.
12:50 p.m.
Conservative
Rob Moore Conservative Fundy Royal, NB
I'm sorry, yes. Through you, Madam Chair, it's for the department lawyer. Thank you.
I don't mean to put you on the spot. It might not be fair to you either, because.... Through you, Madam Chair, to the Department of Heritage and the Department of Justice lawyers, I can only assume that's not how they would conduct themselves, because they would have had this in the original legislation or it would have been presented to us in a timely manner.
Unfortunately, at the eleventh hour yesterday, the government decided to amend the preamble, and then today we find out why, when we're in the middle of our meeting. The government table-drops an amendment to their own legislation.
