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.
Liberal
The Chair Liberal Iqra Khalid
Thank you, Mr. Virani.
We'll now go to the department for comment on this language.
Nathalie Levman Senior Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice
Thank you, Chair, for the question.
I will comment on the impact of the amendment that is before you. I do have it before me as well. What it would do is amend the definition to include “practices, treatments or services designed to change gender expression to cisgender and practices, treatments or services designed to reduce or repress non-cisgender expression.”
Doing that would expand the scope of the definition to include an additional way of showing that a particular intervention, practice, treatment or service constitutes conversion therapy, as I've just explained. This approach would assist in preventing conversion therapists from seeking to avoid criminal liability by arguing that their interventions are not designed to make a person cisgender but only to reduce or repress certain forms of expression, even though changing identities is their true objective.
I would also note that this is criminal legislation, so it has to be narrowly interpreted with reference to the legislation's overall objective, and that objective is to target interventions that are known to cause harm because they're designed to change identity, as explained in the bill's preamble.
Thank you.
Liberal
The Chair Liberal Iqra Khalid
Sorry, Mr. Moore. Is that on a point of order? I don't see your hand raised, but I do see Madame Findlay's hand raised.
Conservative
Kerry-Lynne Findlay Conservative South Surrey—White Rock, BC
I'm not even sure of the procedure here. It's just a point of clarification for the last witness. I have a question on what she just stated.
Thank you for your statements. You actually said, when it is someone's true intention to do otherwise. I don't understand how you can get into the intention of a person based on the language. I don't understand how you can say that's what it means. Isn't intention a matter of a combination of fact and law, depending on the circumstances of the case in front of you?
Senior Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice
Madam Chair, may I respond?
Senior Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice
Thank you for that question.
Perhaps I wasn't clear when I was explaining the amendment. I first attempted to explain the legal scope of the amendment, so that you would understand what it captures in law. I then attempted to explain what I understand to be one of the main objectives of including a separate way of showing that a particular intervention is conversion therapy.
I was in no way commenting on the scope of the law. I was commenting more on what objective the amendment may be trying to achieve, as I understand it from those who have made comments before this committee about their concerns in respect of gender expression.
I hope that clarifies it for you. I would welcome any further questions you may have.
Conservative
Kerry-Lynne Findlay Conservative South Surrey—White Rock, BC
If I understand you right, it was your interpretation of the intention of those putting it forward, but that's not a comment by you on what it actually says. You're going further in what you're saying to give your interpretation of what you believe the reasons are for putting it forward. Is that correct?
Senior Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice
Based on testimony you've heard before the committee and on briefs I've read about the concerns in respect of the lack of inclusion of gender expression in the definition, it is my understanding that the goal would be to avoid opportunities for avoiding criminal liability by simply saying they weren't really trying to change a person's identity; they were just trying to reduce certain forms of expression.
We know that reducing non-cisgender gender expression often forms part of conversion therapy that's aimed at changing gender identity to cisgender. From the witnesses who have come forward and raised this as a concern, I consider it to be an evidentiary issue.
My understanding is that this amendment is trying to address that evidentiary issue in the same way that the other branch of the test, in respect of non-heterosexual attraction and sexual behaviour, is intended to address evidentiary issues associated with proving that a particular conversion therapy intervention is aimed at changing sexual orientation to heterosexual.
Conservative
Kerry-Lynne Findlay Conservative South Surrey—White Rock, BC
Thank you.
I think we agree that you're speaking to an evidentiary issue.
Liberal
The Chair Liberal Iqra Khalid
Thank you, Madame Findlay.
We'll now go to Mr. Moore. I see your hand raised.
Conservative
Rob Moore Conservative Fundy Royal, NB
This last-minute change by the government is extremely problematic to me.
I don't accept that this narrows the scope because it is criminal. We've been saying all along that a Criminal Code sanction is a government's most serious sanction, so it's important that we get it right. It's important that we know what is captured.
Originally, this bill, even in the preamble, purported to identify conversion therapy as dealing with trying to change someone's sexual orientation from cisgender, or gender identity. Now we're adding gender expression. I think it's important to hear from experts, because we did not hear this at committee. We did not hear a clear definition of how to define “gender identity” and how to define “gender expression” and how they are distinct, so we're adding new language to this legislation.
Again, it's on the fly. I'm not saying whether it's good, bad or indifferent. I'm saying that it's shocking that we're seeing this the day we're doing clause-by-clause. This could have been brought up at any time by the minister, but he did not bring this up, and it's being added.
Within the Criminal Code, we're going to perhaps have a new definition of conversion therapy. We heard from a number of witnesses who said that this definition of conversion therapy does not mirror other definitions that have been used in other legislation. For the purposes of the Criminal Code, how do we define “gender identity” and how do we define “gender expression” to show that...? The minister raised great concerns about redundancy. He was concerned about any effort to further clarify the definition, when I raised that with him.
What is the distinction that the minister is proposing on “gender identity” versus “gender expression”?
Liberal
The Chair Liberal Iqra Khalid
Thanks, Mr. Moore.
We'll go to the department for clarification on that.
Senior Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice
Thank you for the question.
You'll know that the terms are not defined in the Criminal Code. They are defined in various places for different purposes and their meaning is understood. Admittedly, “gender expression” is a very broad term. It's about how one expresses one's own gender to the world.
I've acknowledged in my comments that this amendment would broaden the definition, and it's my understanding that this is for evidentiary reasons. I also note that the terms “gender expression” and “gender identity” are used in other places in the Criminal Code and in human rights legislation, and they do have meaning in law.
I hope that answers your question.
Conservative
Liberal
The Chair Liberal Iqra Khalid
No. Perhaps you can raise your hand again, as Mr. Fortin has been waiting for a while as well.
Go ahead, Monsieur Fortin.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Madam Chair.
I also find that the difference between gender expression and gender identity is unclear. I know there is a difference, but it's not easy to understand.
The Department of Justice website states that “gender expression is the way in which people publicly present their gender. It is the presentation of gender through such aspects as dress, hair...” If I go back to the text defining conversion therapy, I understand that the bill would prohibit any practices, treatments or services designed to repress that.
Here is the example that comes to my mind. Let's say that, in the morning before going to school, an eight-year-old boy decides to wear a dress. His mother might say yes, or she might say no. Either way, if we use that definition, it would be a criminal offence for a mother to tell her son that she does not want him to wear a dress and to force him to wear pants. That's the definition we are about to adopt, and I see a problem with it.
Can the analyst help us sort this out?
Liberal
Senior Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice
I'm going to answer in English, if it's okay with you. I apologize, but it will be easier for me.
It's an excellent question. I think, though, we'll have to remember that there are two parts to the definition, and that the intervention really has to amount to “a practice, treatment or service”.
We heard the minister explain the meaning behind those terms and what they imply during his opening remarks before this committee. They do require some kind of formalized intervention, so merely saying to your male child, as you have suggested, “You can't wear a skirt to school” would not amount to “a practice, treatment or service”, and therefore, in my view, would not be caught by the definition, including its expanded version.