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.
1:25 p.m.
Liberal
The Chair Liberal Iqra Khalid
Okay. Again, to clarify, NDP-3 cannot be moved and CPC-1 cannot be moved, because we've adopted LIB-1.
We'll now go to NDP-4.
Mr. Garrison, go ahead.
1:25 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you very much, Madam Chair.
The original bill has a “for greater certainty” clause in clause 5, which attempts to say what is not covered in this ban on conversion therapy. It has two paragraphs, (a) and (b). We heard testimony and concerns from members about the vagueness of those two provisions in the “for greater certainty” clause.
So what I've done is draft an amendment that more parallels clinical practice than what was already in the bill. What the amendment would say is that the ban doesn't cover things that relate “to the exploration and development of an integrated personal identity without favouring any particular sexual orientation, gender identity or gender expression.” In other words, any good-faith attempts to assist a person with any questions about their identity or the development of their identity would not be covered by this bill, and it is neutral. The presumption of this amendment is that what we're defending here is those good-faith efforts that are not, in fact, aimed at changing or denigrating any particular orientation, identity or form of expression.
I think it's an important amendment. I think it matches the testimony that we heard from many witnesses, and I hope it will receive broad support of the committee.
Thank you.
December 10th, 2020 / 1:30 p.m.
Liberal
Mike Kelloway Liberal Cape Breton—Canso, NS
I'll be supporting this amendment. I thank MP Garrison for putting it forward.
This amendment could bring greater clarity to the types of therapies that do not fall within the bill's “conversion therapy” definition. In particular, the amendment clarifies that legitimate therapies for those seeking help to explore or develop their own identity do not favour one particular identity over another, which is a really key piece to this amendment. I thank the member for putting it forward and I'll be supporting it.
Thank you.
1:30 p.m.
Liberal
The Chair Liberal Iqra Khalid
Thank you, Mr. Kelloway.
I don't see any more hands raised, so I'll call the question on NDP-4.
(Amendment agreed to: yeas 6; nays 5 [See Minutes of Proceedings])
NDP-4 carries.
We'll now go to CPC-2.
Mr. Moore, I give you the floor.
1:30 p.m.
Conservative
Rob Moore Conservative Fundy Royal, NB
Thank you, Madam Chair.
As you recall, in his introduction of this bill, the minister outlined the goal of the bill and what it was intended to capture. Then when we looked at the clear language—the plain reading of the bill—and we saw that the definition was certainly problematic. We heard from witness testimony how the definition could capture good-faith discussions that shouldn't be captured under the Criminal Code sanctions in this bill.
This amendment takes language directly from the justice department website.
Under the definition of conversion therapy, the minister has a couple of “for greater certainty” clauses. The two that he has are these:
For greater certainty, this definition does not include a practice, treatment or service that relates
(a) to a person's gender transition; or
(b) to a person's exploration of their identity or to its development.
This amendment would include the language from the website that deals with conversations on “sexual orientation, sexual feelings or gender identity, such as where teachers, school counsellors, pastoral counsellors, faith leaders, doctors, mental health professionals, friends or family members provide support to persons struggling with their sexual orientation, sexual feelings or gender identity.”
The language may not be perfect, but it is from the government's site. I do think that it addresses some of the concerns we've heard from witnesses who are concerned about how broad the definition is. Now the definition is even broader, thanks to the amendment that was just passed. It's all the more important, in light of the expansion to the definition that was table-dropped on us, which was just passed, that we explicitly say what is not included.
The minister has seen fit to include two lines for greater certainty. This would add a third.
Thank you.
1:35 p.m.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
Thank you, Madam Chair.
Thank you, Mr. Moore, for proposing this amendment and for your comments.
I'm concerned that this amendment would defeat the purpose of the bill. Even though this is criminal legislation, I'm not going to get into motive and ascribing intent here, Mr. Moore, as we've discussed already. Mere expressions of personal points of view do not amount to a practice, service or treatment and they're not caught by the definition.
I've made my views well known throughout the discussion at this committee. As I said to Cardinal Collins the other day, I think the conversations in the confessional are not in any way going to be impeded going forward by this legislation, nor are conversations with parents or counsellors, so I'm going to oppose this amendment.
The second point is that the “for greater certainty” clause provides examples of what definitions already exist. Listing a group of situations that might be captured here.... We've had a discussion—and thank you, Ms. Levman, for talking to us about statutory interpretation. I remember arguing statutory interpretation cases in my younger days as a lawyer, and I avoided it later purposely.
Judges do their very best to interpret legislation based on its intent. The more specific you get, the more exclusive it gets, ironically. By listing all of these additional situations, you're actually excluding others. For that reason, it creates more confusion and undermines the purpose of the bill.
Thank you, Madam Chair.
1:35 p.m.
Liberal
1:35 p.m.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Thank you, Madam Chair.
I wish to speak in support of this amendment. I believe the amendment is necessary, having regard for the fact that the definition provided for is incredibly expansive in nature. I am concerned that it could cover situations involving parents, counsellors, faith leaders and others. We heard significant concern expressed in that regard.
The minister points to the two exemptions. One is with respect “to a person's gender transition”. Well, I would submit that this is quite narrow in scope in terms of what would be covered pursuant to that exemption. The second is with respect “to a person's exploration of their identity or to its development”. That is an incredibly vague term.
I think what is required is clarity. It's nice and well for the minister to be confident that it's not going to cover these types of good-faith conversations. It's nice to post a reassurance on the Department of Justice's website, but what matters is not the minster's reassurance or the reassurances provided on the department's website. What matters is what is in the legislation.
I believe clarity is required that is currently lacking, and I therefore will be supporting this important amendment.
1:35 p.m.
Liberal
1:35 p.m.
Conservative
Kerry-Lynne Findlay Conservative South Surrey—White Rock, BC
Thank you, Madam Chair.
I want to speak in favour of this amendment. We heard a lot of testimony and we've had submissions—a few I've been able to read at least—before this committee speaking to the need for some comfort around understanding just what is captured in these amendments to the Criminal Code of Canada that bear criminal sanction along with them.
We've heard a lot of people here today—witnesses from the Department of Justice, as well as members of the committee—speak to what a judge does and doesn't do in interpreting a statute. I've never been appointed as a judge, but I was an administrative law judge for five years on the Canadian Human Rights Tribunal. In that capacity, knowing that my decisions were appealable to the courts—and they were appealed, in fact, in some instances—I was always very mindful, in taking in evidence, of what I was and was not able to look at.
In administrative law, you actually can take into account and weigh evidence in a bit broader context than perhaps you can in a regular court of law, certainly a criminal court of law. Lists are very helpful for a judge in interpreting. They need not be exhaustive. That's why you see language, as in this amendment, saying “such as”. It's not meant to be an exhaustive list.
I heard the minister, and I believe Mr. Virani and others, say that lists aren't very good. Lists are helpful, in fact. Lists are helpful in interpretation. We've heard a lot of testimony here today about how intention is something that judges do look at in deciding these cases.
We've heard a lot about how it's on the website or someone can look it up on the website. As far as I know, websites are not considered authoritative in courts of law. I've never actually heard of a judge referring to a website in interpreting. That's not where you go.
Occasionally, I have seen decisions where a judge has looked to statements of a minister in and around the passing of legislation. Again, however, it's not authoritative. Why? Ministers come and go—with all due respect to those who hold those offices. When we're dealing with putting forward legislation, particularly that which carries with it criminal sanction, it is essential that the wording be specific enough and clearly understood enough that any future minister and any future judge, given the task to interpret that legislation or rely on the legislation, know what it is they're looking at and relying on.
Frankly, I don't understand why the government is not open to clarifying this legislation, the broad intent of which is clear, but the specifics are lacking in terms of definitions and language. That would give comfort to those who are not seeking to do anything coercive, but who are seeking only to help and support.
We've heard testimony from witnesses over the course of the discussion on Bill C-6 who said that this kind of counselling—whether it be from faith leaders or from people in the general counselling fields—was very helpful to them in just trying to get to where they needed to get in terms of their gender identity and/or gender expression. I would hate to see a situation where we pass legislation with criminal sanction attached to it that would put a chill on the kinds of supports and the kinds of taking of confidences that are necessary to help people as they struggle with the issues we're dealing with here.
My colleague Mr. Maloney spoke of the cardinal. He has a different interpretation than the cardinal, who said he spoke for literally millions of Catholics in the GTA, as to what is meant here. It seems to me that when we have a witness—and I will say that I am not Catholic—whose judgment, guidance and counsel are sought by literally millions of Canadians, we should be cautious and we should take into account that further definition and further help in interpretation—for future judicial comment and future judicial decisions—is the way we should go. We should not preclude people who are seeking our help from understanding this legislation.
Let's just take faith leaders for a moment. We've heard from faith leaders and have had submissions from faith leaders of almost every faith I can think of who have said they're against coercive conversion therapy and against the idea of trying to force anyone one way or the other, but that they need clarity. They need to understand that the conversations they may have that are supporting someone's own journey—supporting someone who, for any number of reasons, may need clarification within their own minds and within their own spirits in terms of where they're going in their life—would not be somehow shut down.
I'm asking people to really think on this. This is not in any way trying to derail the overall intent of this bill. It's not meant in any way to restrict the overall intent. What it's trying to do is give a level of comfort to those who find themselves in these very sensitive conversations—usually confidential conversations that they have in the course of their chosen field, be it professional or faith, or even in terms of family or friendship—that those will not be restricted in what I believe would be an unintended way.
Let's be clear. In this amendment, we've taken the wording directly from the government's own website. I have to assume that the government of the day believes in this wording, or they wouldn't have put it up on their website. As I said, a judge interpreting this in the future, or the ordinary Canadian public trying to understand what is permissible and what is not, is not going to go to a website. They are going to look at the legislation.
That's our job here today, and I hope that we will fulfill it by allowing this amendment to go through, which in no way subverts the overall intent of this bill.
Thank you.
1:45 p.m.
Liberal
The Chair Liberal Iqra Khalid
Thank you, Madame Findlay.
Mr. Garrison, I have you next on the list.
Go ahead.
1:45 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you very much, Madam Chair.
I do not doubt the good intentions of Mr. Moore in proposing this amendment, but I have to say that I just do not see that anything that's listed here is covered by this bill.
The second thing I would say about this one is that there is a principle of statutory interpretation that's colloquially known as “inclusion implies exclusion”, and that's the danger of any list being put in, because those not listed, it seems to imply, would not enjoy the same protections as those listed.
For that reason, I would oppose this amendment.
However, I'd like a ruling, Madam Chair, on whether this is in order, given the fact that we have passed the previous amendment, NDP-4, which has amended this section. There is no longer an (a) and a (b) to which you could add a (c) in this bill, so I wonder if this amendment, given that we previously adopted an amendment that has altered this section, is actually in order.
Thank you.
1:45 p.m.
Liberal
The Chair Liberal Iqra Khalid
That is an excellent question, Mr. Garrison.
I'll turn to our legislative clerk to clarify.
1:45 p.m.
The Clerk
Thank you, Madam Chair.
We have noticed that also, and if it is the wish of the committee to adopt this motion, we would recommend a little something just to adjust to make the link between this amendment and the rest of the text.
I can turn to my colleague, who has prepared something, if the committee wants to adopt this amendment.
1:50 p.m.
NDP
1:50 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
My understanding of that ruling is that this amendment as it stands is not in order. If it requires amendment, it's clearly not in order.
I would ask the chair to rule the amendment out of order, given the previous amendment that was adopted.
1:50 p.m.
Bloc
1:50 p.m.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
I am surprised by Mr. Garrison's remarks. I probably missed something.
Amendment LIB-1, which we just adopted ends with “this definition does not include” and does not result in the removal of subsections (a) and (b). As far as I understand, they are still there, but I may be mistaken.
Can you explain to me why subsections (a) and (b) would no longer be there?
1:50 p.m.
Liberal
The Chair Liberal Iqra Khalid
Thank you, Monsieur Fortin.
The conflict is with NDP-4 and CPC-2. You can take a look at NDP-4.
In the meantime, I'll pass it over to our legislative clerk to explain.
1:50 p.m.
Jacques Maziade
Thank you, Madam Chair.
The solution to the amendment is that it needs a subamendment, as I said, just to add a few words to make sure there is a link between the main text and the amendment. If nobody wants to move the subamendment, it means the amendment is out of order.
It's the chair who decides that, by the way.
1:50 p.m.
Liberal
The Chair Liberal Iqra Khalid
I will give the opportunity to Mr. Moore or to any of his colleagues to see if they would like to move that subamendment.