Mr. Speaker, I rise today on behalf of our government in support of Bill S-228, an act to amend the Criminal Code regarding sterilization procedures. This important piece of legislation addresses coerced sterilization. The bill would address this abhorrent practice by clarifying how the existing law of assault applies when sterilization procedures are carried out without valid consent.
Coerced sterilization constitutes a profound breach of bodily integrity with enduring effects on survivors, their families and their communities. Evidence has shown that these harms have been experienced in a disproportionate way by indigenous women and girls, and two-spirit and gender-diverse people in Canada, as well as by racialized and disabled women, which underscores the need for clear legal protections that affirm the centrality of consent in all medical decision-making.
Bill S-228 would respond to that need by clarifying for greater certainty that a sterilization procedure constitutes a wounding or a maiming for the purposes of the offence of aggravated assault in section 268 of the Criminal Code. Aggravated assault is the most serious assault offence in Canadian criminal law. It applies where an assault “wounds, maims, disfigures or endangers the life” of the victim, and it carries a maximum penalty of 14 years' imprisonment.
Because all surgeries, including sterilization procedures, necessarily involve wounding or maiming of the body, they already fall within the scope of aggravated assault when performed without legally effective consent. The bill would make explicit what is already implicit in the law. This clarification is critically important because it focuses the legal analysis where it properly belongs. The relevant legal question is whether a particular sterilization procedure amounted to a non-consensual application of force, that is, whether an assault occurred.
Both the Criminal Code and long-standing jurisprudence provide an established framework for answering that question. Assault was originally a common-law offence, but it is now codified in subsection 265(1) of the Criminal Code. That provision establishes that an assault occurs where a person applies force to the body of another person, directly or indirectly, without a person's consent, or while being reckless as to whether the person consents. The concept of applying force is broad. It simply means bringing something into contact with another person's body. With that definition, any medical procedure performed on a person without their consent plainly constitutes an assault because it involves intentional application of force to the body.
This principle was affirmed by the Supreme Court of Canada in its 1988 Morgentaler decision. The court clarified that the law of assault applies to any medical procedure carried out without the patient's legally effective consent, and because surgeries necessarily involve wounding or maiming the patient, they constitute aggravated assault if they are performed without legally effective consent. Bill S-228 therefore underscores the fact that sterilization procedures fall squarely within the established framework.
This brings us to the core concept that governs the lawfulness of any medical procedure: legally effective consent. Under Canadian criminal law, the application of force does not constitute an assault where legally effective consent is present. However, consent in law has a precise meaning. Legally effective consent must meet three fundamental criteria: It must freely be given, it must go to the nature of the act and it must be given by a person with the ability to understand what is being done.
These requirements have been developed through the common law, some of which are reflected in subsection 265(3) of the Criminal Code. That provision sets out circumstances in which the law will not recognize any consent given.
Specifically, the provision states that consent is not obtained in law “where the complainant submits or does not resist by reason of” violence, threats of violence, “fraud” or “the exercise of authority”. The requirement that consent be freely given means there must be no fraud or duress. If a patient agrees to a sterilization procedure because they have been misled about its purpose, pressured by authority figures or made to believe that they have no real choice, the law will not recognize that agreement as legally effective consent.
Consent also must go to the nature of the act, and the requirement implies a foundation of knowledge. Courts have described this as knowledge of the purpose of the operation, knowledge of the events that will occur and an understanding of the character of what is about to take place. In the context of sterilization, this means that the patient must be informed that the procedure will permanently prevent reproduction. Without that information, there is no legally effective consent.
Finally, consent must be given by a person who has the ability to understand. Any consent provided by a patient who is unable to appreciate the nature of the consequences of the act is not valid in law. This issue may arise where the patient is a child or where the patient has a cognitive impairment that affects their capacity to comprehend the procedure and its implication.
These principles of voluntariness, knowledge and capacity are consistent with the consent standards applied in provincial and territorial health law across Canada, such that compliance with these standards protects health care providers from criminal liability. The Supreme Court of Canada further clarified the contours of consent for assault law purposes in its 1991 Jobidon decision. The court explained that the list of violating factors set out in subsection 265(3) is not exhaustive. The common law may continue to recognize additional circumstances in which consent will not be applied for public policy reasons. Depending on that fact, at the same time, the court affirmed that the assault law will recognize consent for application of force that has social value, such as appropriate in consensual, surgical interventions.
This balance is essential. The criminal law does not criminalize medical care; it is freely chosen and properly consented to. Indeed, it expressly recognizes the social and therapeutic value of appropriate surgical procedures, including sterilization procedures performed with valid consent. Bill S-228 preserves that distinction. It does not restrict access to voluntary sterilization procedures. Rather, it clarifies that, when sterilization is performed without legally effective consent, that conduct constitutes our most serious form of assault.
The bill also must be understood in the broadest context, which is that the disproportionate impact of coercion on indigenous women and diverse people has been documented and acknowledged. Clarifying the criminal law is therefore not only a matter of legal precision, but also part of Canada's broader efforts toward reconciliation. In respect to that, Bill S-228 is consistent with Canada's commitments under UNDRIP, which call for concrete measures to eliminate forced and coerced sterilization and to strengthen protections for productive autonomy and bodily integrity. By enforcing the central concept of consent in criminal law, this bill contributes to the objective in a concrete, legally meaningful way.
Ultimately, Bill S-228 would ensure that our criminal law speaks clearly where clarity is required and reinforces that legally effective consent is the dividing line between lawful medical care and criminal violence. Where such consent is present, the law recognizes the procedure as legitimate. Where it is absent, the full protections of the Criminal Code will apply.
Bill S-228 affirms the central role of consent in Canadian criminal law, clarifies the application of aggravated assault provisions, acknowledges the disproportionate harms experienced by indigenous women and girls, and supports Canada's commitment under the UNDRIP action plan. For these reasons, I urge all hon. members to support its swift passage.