Bill C-4: An Act to amend the Criminal Code (conversion therapy)
Tabled in the House of Commons, December 6, 2021
Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.
A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.
A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.
The Minister of Justice has examined Bill C-4, An Act to amend the Criminal Code (conversion therapy), for any inconsistency with the Charter pursuant to his obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill.
What follows is a non-exhaustive discussion of the ways in which Bill C-4 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.
Bill C-4 would amend the Criminal Code to prohibit certain activities that relate to “conversion therapy”, which is defined as a practice, treatment or service designed to: change a person’s sexual orientation to heterosexual; change a person’s gender identity to cisgender; change a person’s gender expression so that it conforms to the sex assigned to the person at birth; repress or reduce non-heterosexual attraction or sexual behaviour; repress a person’s non-cisgender identity; or repress or reduce a person’s gender expression that does not conform to the sex assigned to the person at birth. The definition also provides, for greater certainty, that conversion therapy does not include a practice, treatment or service that relates to the exploration or development of an integrated personal identity — such as a practice, treatment or service that relates to a person’s gender transition — and that is not based on an assumption that a particular sexual orientation, gender identity or gender expression is to be preferred over another.
The Bill would enact new offences to prohibit:
- causing another person to undergo conversion therapy;
- removing a child from Canada to undergo conversion therapy abroad;
- promoting or advertising conversion therapy; and
- receiving a financial or other material benefit from the provision of conversion therapy.
Prohibiting causing another person to undergo conversion therapy
Equality rights (section 15)
Section 15(1) of the Charter protects equality rights. It provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination on various grounds, which have been found to include the ground of sexual orientation.
The Bill would promote the aims and values of the Charter’s equality rights. Equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as equally deserving of concern, respect, and consideration. The Bill would discourage and denounce harmful practices and treatments that are based on myths and stereotypes about LGBTQ2 people. These include myths and stereotypes that the sexual orientation, gender identity or gender expression of LGBTQ2 people are undesirable conditions that can or should be changed.
Freedom of religion (section 2(a)), freedom of expression (section 2(b)) and the right to liberty and security of the person (section 7)
Section 2(a) provides that everyone has freedom of conscience and religion. The freedom of religion guarantee protects sincerely held practices or beliefs that have a connection with religion. A law or government action that interferes with the ability to act in accordance with such practices or beliefs in a way that is more than trivial or insubstantial will engage section 2(a). Because the prohibition on causing another person to undergo conversion therapy may affect the ability of individuals to engage in practices that have a connection with their own sincerely held religious beliefs, it has the potential to engage the freedom of religion.
Section 2(b) provides that everyone has freedom of thought, belief, opinion and expression. Section 2(b) has been interpreted broadly to encompass any activity or communication, aside from violence or threats of violence, that conveys or attempts to convey meaning. It protects the rights of both speakers and listeners. Because the offence of providing conversion therapy would prohibit discussions between providers and recipients of conversion therapy, it engages section 2(b).
Section 7 protects against the deprivation of an individual’s life, liberty and security of the person unless done in accordance with the principles of fundamental justice. These include the principles against arbitrariness, overbreadth and gross disproportionality. An arbitrary law is one that impacts section 7 rights in a way that is not rationally connected to the law’s purpose. An overbroad law is one that impacts section 7 rights in a way that, while generally rational, goes too far by capturing some conduct that bears no relation to the law’s purpose. A grossly disproportionate law is one whose effects on section 7 rights are so severe as to be “completely out of sync” with the law’s purpose.
Because the proposed offence of causing another person to undergo conversion therapy carries the possibility of imprisonment, it engages the right to liberty. Liberty and security of the person also encompass the right to make fundamental personal choices – and to control one’s bodily and psychological integrity – free from state interference. To the extent that the offence would prevent individuals who are capable of making their own treatment decisions and who wish to obtain conversion therapy from doing so, it potentially engages the right to security of the person and the broader right to liberty.
The following considerations support the consistency of the prohibition on conversion therapy with the Charter. Conversion therapy has been denounced by medical and psychological professionals as being ineffective and harmful. The harms that can be caused by conversion therapy include distress, anxiety, depression, stigma, shame, negative self-image, a feeling of personal failure, difficulty sustaining relationships, sexual dysfunction and having serious thoughts or plans of – or attempting – suicide. Conversion therapy has also been denounced by the United Nations Independent Expert on preventing violence and discrimination on the basis of sexual orientation and gender identity, who has called for the banning of conversion therapy in all settings. Conversion therapy is harmful, even when sought by consenting adults, including because it perpetuates myths and stereotypes that the sexual orientation, gender identity or gender expression of LGBTQ2 people are undesirable, and that they can or should be changed.
Any effects that the offence may have on Charter rights are tailored to the objective of preventing the harms associated with conversion therapy, as described above. The proposed offence would be limited to “practices, treatments or services”, all of which imply an established or formalized intervention. It would not criminalize conversations in which a person expresses an opinion on sexual orientation, gender identity or gender expression, unless that conversation forms part of an intervention designed to make a person heterosexual or cisgender. Interventions that support an individual’s exploration and development of their own identity would not be prohibited, provided that they are not based on an assumption that a particular sexual orientation, gender identity or gender expression is to be preferred over another.
Prohibiting the promotion or advertising of conversion therapy
Freedom of religion (s. 2(a)), freedom of expression (s. 2(b)) and liberty (s. 7)
Prohibiting the promotion and advertising of conversion therapy would limit the freedom of expression under section 2(b), which encompasses advertising and other expression that is done for commercial purposes. To the extent that the prohibition on promotion and advertising may limit the ability of individuals to engage in practices that have a connection with their own sincerely held religious beliefs, it has the potential to engage the freedom of religion under section 2(a). Because the offence is punishable by imprisonment, it also engages the right to liberty under section 7.
The considerations discussed above in relation to the offence of causing another person to undergo conversion therapy also support the consistency of the promotion and advertising offence with the Charter. In addition, the promotion and advertising offence would further the legislative objectives by reducing the presence of discriminatory public messaging that sexual orientation, gender identity or gender expression can or should be changed. This would protect invdividuals who may be vulnerable to such messaging and the dignity of LGBTQ2 people more broadly.
Removing a child from Canada so that they can undergo conversion therapy
Mobility rights (section 6)
Section 6 protects mobility rights. It encompasses the right of Canadian citizens to enter, remain in and leave Canada. The Bill would prohibit removing a child under the age of 18 from Canada with the intention that they undergo conversion therapy outside Canada. It would do so by amending the existing offence under s. 273.3 of the Criminal Code, which prohibits the removal of a child from Canada for specified purposes. Because the new prohibition may restrict the ability of children and mature minors to leave Canada for the purpose of obtaining conversion therapy abroad, it potentially engages the right to leave Canada under section 6.
The following considerations support the consistency of the offence with the Charter. The offence would not completely prohibit anyone from leaving Canada. It would only prohibit the removal of a child from Canada in circumstances where the child was being removed for the purpose of doing something that would constitute an offence if it were committed inside Canada. Ensuring that the prohibition on conversion therapy cannot be circumvented by removing a child to undergo conversion therapy outside Canada responds to the clear harms that conversion therapy poses to children.
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