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Liberals’ third attempt to criminalize ‘conversion therapy’ drops exemption for consenting adults

Tuesday, November 30, 2021 @ 9:51 AM | By Cristin Schmitz


The minority federal Liberal government says it is proposing a complete ban on so-called “conversion therapy” — even for adults who purport to consent — as there is an emerging international and domestic consensus that such “well-documented” harmful practices are tantamount to “torture,” to which no one can validly consent.

On Nov. 29, Justice Minister David Lametti introduced Bill C-4 in the House of Commons, a more sweeping version of two previously introduced bills (C-8 and C-6) which made it an offence to cause a child or youth to undergo “conversion therapy” but only criminalized coerced conversion therapy for adults (i.e. if it was “against the person’s will”) — due to perceived potential constitutional problems if the government enacted a blanket ban on conversion.

Justice Minister David Lametti

“We felt that a competent adult could conceivably defend the right in a court to consent to this kind of activity and … we felt that we … couldn’t move ahead with that ... case scenario, simply because of the Charter of Rights,” Lametti told reporters in a March 2020 scrum on Parliament Hill, after he introduced, with fanfare the first of two previous iterations of the bill (C-8), which both died on the order paper.

Asked by reporters what has changed in the intervening 21 months to spur the government to shift its stance, Lametti said at a Nov. 29 news conference in Ottawa that there is an emerging consensus both here and abroad that the discredited practices “may amount to torture.” He cited, for example, a 2020 UN report which he said called for a total ban on conversion therapy.

“No matter your age, torture is something you cannot consent to,” Lametti explained. “Just consider what these so-called therapies do. Their goal is to change a person's sexual orientation to heterosexual, or their gender identity or expression to match the sex they were assigned at birth. In other words, change a person into something or someone they are not. Think about what it must be like to go through something like that. The consequences are well documented.”

Lametti said that, if necessary, he is prepared to go to court to defend the constitutionality of the proposed law — whose previous versions were opposed by some Conservative MPs, including on constitutional grounds implicating freedom of expression and religion.

Lametti said he is “pretty confident” the bill will pass quickly, citing “a large consensus” in both the Commons and the Senate on the need for a ban (the penultimate iteration of the bill, C-6, passed the Commons but died in the Senate when Parliament prorogued for the 2021 fall election).

“The basic fundamental premise is still the same, that this practice is torture,” Lametti said, noting the experiences of conversion therapy survivors who testified to their profound pain before MPs during the previous Parliament. “We saw the devastating impact ... and that really is one of the main factors — which is why we're going further this time,” he explained. “The second factor is a greater emerging international consensus, in addition to the consensus that’s emerging within Canada, that this is a practice that needs to be banned.”

Asked by a reporter to explain what shifted his legal opinion from 2020 when he had doubts about the constitutionality of a total ban on conversion therapy, Lametti replied in French that the nature of the testimony in the parliamentary committee was not only touching and moving, it also changed his thinking with respect to the possibility of defending a total ban in court. “I am ready to do it (translation),” he said. “I sincerely believe [the ban] must be done. We must also add the consensus that is emerging at the international level. This is very important because often, especially by using s. 1 of the Charter to balance [as a reasonable and demonstrably justified limit in a free and democratic society] what we are doing, often we look outside the country to see what is going on,” he said. “It is clear that there is a consensus which is developing on this (translation).”

Bill C-4 would amend the Criminal Code to create these offences: (1) knowingly causing another person to undergo conversion therapy (a hybrid offence with a maximum penalty of 5 years on indictment); (2) doing anything for the purpose of removing a child from Canada with the intention that the child undergo conversion therapy outside Canada (a hybrid offence with a maximum penalty of 5 years on indictment); (3) knowingly promoting or advertising conversion therapy (a hybrid offence with a maximum of two years on indictment; and (4) receiving a financial or other material benefit knowing that it is derived, directly or indirectly, from the provision of conversion therapy (a hybrid offence with a maximum of two years on indictment).

Bill C-4 would also amend the Criminal Code to authorize courts to order that advertisements for conversion therapy be disposed of or deleted.

The bill defines conversion therapy as “a practice, treatment or service designed to: (a) change a person’s sexual orientation to heterosexual; (b) change a person’s gender identity to cisgender; (c) change a person’s gender expression so that it conforms to the sex assigned to the person at birth; (d) repress or reduce non-heterosexual attraction or sexual behaviour; (e) repress a person’s non-cisgender gender identity; or (f) repress or reduce a person’s gender expression that does not conform to the sex assigned to the person at birth.”

It adds, “for greater certainty”, that this definition “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.”

A Department of Justice backgrounder states: “these proposed new offences would not criminalize interventions that assist a person in exploring or developing their personal identity, provided that they are not based on the assumption that a particular sexual orientation, gender identity or gender expression is preferable to others. This includes interventions that relate to one’s gender transitioning. They also would not criminalize activities that do not amount to practices, treatments or services, such as expressions of personal views on sexual orientation, gender identity or gender expression.”

The government states “conversion therapy practices” take various forms, including counselling and behavioural modification. “Conversion therapy practices are discriminatory and have been proven to be harmful to the physical, mental and social well-being of the victim, even for adults who consented to it,” it asserts.

The preamble to Bill C-4 states, in part: “Whereas conversion therapy causes harm to the persons who are subjected to it; whereas conversion therapy causes harm to society because, among other things, it is based on and propagates myths and stereotypes about sexual orientation, gender identity and gender expression, including the myth that heterosexuality, cisgender gender identity, and gender expression that conforms to the sex assigned to a person at birth are to be preferred over other sexual orientations, gender identities and gender expressions; and whereas, in light of those harms, it is important to discourage and denounce the provision of conversion therapy in order to protect the human dignity and equality of all Canadians. ...”

If you have any information, story ideas or news tips for The Lawyer’s Dailyplease contact Cristin Schmitz at Cristin.schmitz@lexisnexis.ca or call 613 820-2794.