Second reading of Bill S-250, An Act to amend the Criminal Code (sterilization procedures)

By: The Hon. Pierre Dalphond

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Inside the National Gallery of Canada

Hon. Pierre J. Dalphond: Honourable senators, I said to my colleagues this morning, when our group met, that I would probably speak before midnight. This is true, unfortunately, and I’m glad that there are still some people listening. I appreciate that, and I will try to make it interesting.

Honourable senators, I rise in support of Bill S-250, sponsored by Senator Boyer. As we all know, since 2017, Senator Boyer has been, with the assistance of many researchers, the voice of Indigenous women victims of forced sterilization, first in Saskatchewan and subsequently across Canada.

Her bill proposes to add to the assault provisions of the Criminal Code a new indictable offence designed to prevent the forced or coerced sterilization of persons in Canada by exposing an offender to up to 14 years in prison. This new offence is focused on consent, and it requires those who perform a medical act that will cause or attempt to cause someone to be sterilized to obtain truly informed consent and to follow specific safeguards.

Today I won’t delve into the details of the proposed amendment, as this should be done in committee. I will, rather, focus on this bill’s goal, which is the creation of a new criminal offence specific to forced sterilization.

Those of you who have legal training may say that forced or coerced sterilization is already a crime in Canada under aggravated assault offences. This is true, as pointed out by some witnesses before our Human Rights Committee, including former RCMP Commissioner Lucki.

But it must be said that there has never been a charge of aggravated assault in relation to forced or coerced sterilization in Canada, even though Senator Boyer’s office has documented thousands of Indigenous women in Canada who experienced coerced or forced sterilization between 1971 and 2018.

Others may add that all provinces and territories have legislation requiring informed consent for medical care and treatment and that case law is replete with judgments awarding damages to patients injured by a medical procedure to which they did not provide informed consent.

As a matter of fact, class action cases related to forced sterilization of Indigenous women are now pending before the courts of Saskatchewan, B.C., Ontario and Quebec. They seek some indemnification, which the courts may eventually grant.

Finally, some others may argue that forced sterilization is another manifestation of systemic racism against Indigenous women. As such, it may require a comprehensive strategy to address such racism, including proper training of medical and nursing students to address such racism in connection with Indigenous health issues and an increase of Indigenous professionals as recommended by the Truth and Reconciliation Commission’s Calls to Action 19, 23 and 24. I agree that a comprehensive strategy is required to protect women, especially Indigenous women.

But, with the greatest respect, I don’t agree that these facts should deter us from proceeding to the completion of second reading debate on Bill S-250 and sending it to committee for review and detailed analysis.

Like our Human Rights Committee, in its report The Scars that We Carry: Forced and Coerced Sterilization of Persons in Canada — Part II, released in July 2022, I believe that the addition of a specific offence to the Criminal Code will be a valuable contribution to stopping, once and for all, forced sterilization.

First, by adding, after the section on aggravated assaults, a specific provision dealing with forced sterilization, Parliament will send a powerful message to society, including victims, police officers, crown attorneys and judges that forced sterilization can no longer be ignored by the criminal law system.

Second, the deterrent effect of such a provision on medical practitioners and their regulatory bodies will be immediate. It will have a chilling effect on those medical practitioners who still believe in racial eugenics and are ready to perform a sterilization procedure without truly free and informed consent.

Third, we will implement a measure recommended not only by our Human Rights Committee but also by the Council of Europe Convention on preventing and combating violence against women and domestic violence, ratified by 37 countries. Article 39 of this convention provides that states should ensure the criminalization of surgery to terminate a woman’s capacity to reproduce without her prior and informed consent.

As of today, Malta, Belgium, France and Italy have acted accordingly. By amending our Criminal Code, Canada will show the rest of the world that it believes in this important aspect of preventing violence against women.

As you may know, Canada has been criticized on this issue by the international community. In 2018, the United Nations Committee against Torture expressed concern about reports of extensive forced or coerced sterilization of Indigenous women and girls. In 2019, the Inter-American Commission on Human Rights and a United Nations special rapporteur called on Canada to take concrete action.

Finally, forced sterilization is not only a part of our past genocidal policies against First Nations, but it continues.

In its 2019 final report, the National Inquiry into Missing and Murdered Indigenous Women and Girls highlighted examples of programs in Canada aimed at subjugating or eliminating Indigenous Peoples, including coerced sterilization.

In March 2021, Senator Boyer told us:

Tragically, [forced and coerced sterilization] continues to happen at this very moment, with cases being reported publicly as recently as 2018.

In its second report on coerced sterilization, released in July 2021, the Standing Senate Committee on Human Rights also concluded that this form of violence against women was still occurring in Canada.

In the meantime, in 2019, following a recommendation from the first report produced by the Standing Senate Committee on Human Rights, the federal government established an independent advisory committee to study the extent of forced sterilization in Canada.

The Quebec government refused to participate on the grounds that there had never been a sterilization policy in Quebec, that the practice did not exist there and that health is a provincial jurisdiction. The first reason seems justified. Unlike Alberta and British Columbia, Quebec never adopted policies or laws encouraging eugenics. In fact, the Catholic Church, the dominant church in Quebec in the early 20th century, preached a pro-birth policy.

The third reason has to do with political posturing and ignores the fact that the committee’s mission was not to propose pan-Canadian standards, but rather to paint a picture of the situation across the country, in order to shed light on the actions that all levels of government would need to take.

However, this response was based on the false premise that, unlike in the rest of Canada, forced sterilization was not taking place in Quebec. Fortunately, two members of the Research Laboratory on Indigenous Women’s Issues at the Université du Québec in Abitibi-Témiscamingue drafted a report on the situation in Quebec. Professor Suzy Basile and PhD student Patricia Bouchard carried out a study in partnership with the First Nations of Quebec and Labrador Health and Social Services Commission and the Assembly of First Nations Quebec-Labrador.

From May 2021 to June 2022, the research team collected 105 accounts from 35 Indigenous people who chose to come forward after undergoing or witnessing forced sterilization or obstetric violence. Of those 35 participants, 14 were Atikamekw, 10 were Innu, five were Anishinaabe, four were Eeyou and two were Inuit.

Because of the pandemic, the research team was unable to meet with 20 other individuals to hear their accounts. Nine participants reported undergoing forced sterilization and 13 reported experiencing additional forms of obstetric violence. A total of 22 women were victims of forced sterilization. They ranged in age from 15 to 46 at the time of the procedures, which took place between 1980 and 2019. The youngest woman to undergo forced sterilization was 17 years old. At the other end of the spectrum, the oldest woman who underwent this procedure non-consensually was 46 years old.

In addition, three other women were victims of one or more forced abortions. Finally, six other women endured obstetrical violence, which means that they were victims of discriminatory acts, attitudes and remarks from health care staff. It should also be noted that these acts of violence took place essentially in hospitals located in cities serving Indigenous communities, specifically in Roberval, La Tuque, Val-d’Or, Joliette and Sept-Îles.

This research team’s report was published on November 24, 2022. It found that, in many cases, there was a lack of consent and that, in others, consent was hastily obtained either shortly before, during or after labour. Furthermore, in many cases, consent was obtained based on false information, such as the claim that the procedure, which was described as a contraceptive measure, was reversible.

In summary, the report highlights 22 cases of sterilization without free and informed consent. What is also very troubling is that, in many cases, racist arguments were used to justify the procedure. For example, one doctor reportedly said the following:

It’s enough, you need to stop there. All the children that you bring into the world will live in poverty.

The report pointed to the obvious presence of systemic racism and set out 31 recommendations, including a call for the Government of Quebec to stop being reluctant to recognize the existence of systemic racism. That call has not yet been heard.

The media reported broadly on the content of the report and other women spoke out to the researchers. One of the women said that she was sterilized in 2020, when she was only 15. Incidentally, the researchers, with support from their Indigenous partners, undertook a second phase of their study to meet the women they were unable to see during the first phase and all the new victims who wanted to come forward.

As far as the Collège des médecins du Québec is concerned, it acknowledged that the number of victims is likely much higher and that forced sterilization likely still exists. It added that it intended to make its members aware of the fundamental principle of informed consent. It also invited any members of the medical staff who may have witnessed acts of this nature to report them to the college.

In closing, Bill S-250 addresses incidents of obstetrical violence that are still present in our health care system in Quebec and elsewhere in Canada. I invite you, as Senator Wells, the bill’s critic did, and as Senator LaBoucane-Benson just did, to refer the bill to committee without delay. Honourable colleagues, thank you for your attention despite this late hour. This issue deserves our full attention even at this hour. Thank you. Merci. Meegwetch.

Hon. Senators: Hear, hear!

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