Senator Boyer: Yes.

Hon. Yvonne Boyer: Honourable senators, as we engage in this conversation about Bill S-250 today, I would like to begin by acknowledging we are on the traditional and unceded territories of the Anishinabe Algonquin nation. The people of these nations are the original stewards of the land, and it’s important to show our humility, gratefulness and respect for their stewardship by acknowledging and thanking them. When we pay our respects to the ancestors, we reaffirm our relationship with one another. In doing so, we are actively participating in reconciliation as we navigate our time together.

I rise today as sponsor of Senate public Bill S-250, An Act to amend the Criminal Code (sterilization procedures), which proposes to amend section 268 of the Criminal Code. Section 268 currently addresses aggravated assault offences, and Bill S-250 creates an offence for sterilization without consent. I would like to briefly expand on why I believe this bill is so important.

The first question I’m always asked when people discover I’m working on the topic of forced sterilization is, “That isn’t still happening, is it? That was a long time ago, wasn’t it?” The simple answer is “no.” It is happening today, and at this very moment, there are women who are being coerced or forced into sterilization, whether they are pregnant, have just given birth or are in another situation. Some of the underlying reasons will be explained today.

Historically, the role that Indigenous women had in their families, communities and nations commanded the highest respect as the givers of life. They were the keepers of the traditions, practices and customs of their nation. It was well understood by all that women held a sacred status as they brought new life into the world. This was a way to teach and to transfer knowledge to the youth that were involved in serving and learning the ways at the sacred birthing ceremony. The women were revered for their capacity to not only create new life, but by extension, the birth of a new relationship with the Creator.

These newest members of the community were also recognized for the Indigenous laws that were given to them by the Creator. These laws were given with the responsibility to enter into new relationships in a good, honest and truthful way.

Unlike these inherent Indigenous laws that were based on respect and gender balance, the British common law developed through legal traditions of the Romans, the Normans, church canon law and Anglo-Saxon law. These legal traditions considered married women to be under the protection and shield of their husbands. The common law viewed women as having no social or legal status, but as chattels dependent first on their fathers and then their husbands. Birthing was a medical procedure that was considered important to extend the male patrilineal line.

In contrast, womanhood of the Métis, Inuit and First Nations has been described as once being a sacred identity that was maintained through a knowledge system of balance and harmony. Women were politically, socially and economically powerful and held status in their communities and nations related to this power. Indigenous women were anchors to the family and closely linked to the land, and because land acquisition became a primary goal of the colonizers, various laws, regulations, policies and Christian edicts were applied to the identity of Indigenous women in Canada, forcing them into an oppressed position in society. These are all mitigating factors as to why we have forced and coerced sterilization today.

In addition, Canada has an extensive history of eugenics through sterilizing groups of people who were named as unfit. By virtue of their social strata, Indigenous women were easy targets. The history of the eugenics movement began in 19th-century England, and the term eugenics derived from the Greek for “well born” or “good breeding” and evolved into eugenics policies that spread to the United States, Canada and several European countries, and later became famous in Nazi Germany. A policy of involuntary surgical sterilization was carried out on Indigenous women in Canada and the United States.

Alberta and British Columbia upheld sexual sterilization acts. From 1928 to 1973, both provinces enacted sterilization laws that allowed a Eugenics Board, comprised of four people, to oversee cases for sterilization.

In 1930 the Eugenics Society in Canada was created, whose job it was to register the sterilization of women they considered unfit to give birth. Saskatchewan, Manitoba and Ontario also introduced similar bills. They did not, however, become law. They nevertheless created an underpinning in our Canadian fabric that sterilization is a good method to control the population.

In 1988, the Alberta government destroyed all but 861 of the 4,785 files created by the Eugenics Board. Professor Jana Grekul reviewed them and commented:

[M]ost noticeably over-represented were Aboriginals (identified as “Indian,” “Métis,” “half breeds,” “treaty” and “Eskimo”). While the province’s Aboriginal population hovered between 2% and 3% of the total over the decades in question, Aboriginals made up 6% of all the cases represented.

In October 1989, Leilani Muir discovered she had been sterilized and brought legal action against the Government of Alberta for wrongful confinement and wrongful sterilization, and she won. In Ms. Muir’s case, a single IQ test had been enough to deem her mentally defective, and therefore a candidate for sterilization.

Upon Ms. Muir’s physical examination and discovery that she had been sterilized, her doctor reported that her insides looked like she had been through a slaughter house. I have heard similar words from many of the Indigenous women I’ve gotten to know over the years.

With the uncovering of the Muir case, the Government of Alberta’s response was a proposition to override the Charter using section 33 to limit the compensation to victims. This was met with a massive public uproar. The Government of Alberta finally apologized in 1999 and offered several individuals and groups the option to settle out of court.

For Indigenous women, the impact on health and the stigma of having been wrongfully sterilized is insurmountable. Although these explicit eugenic laws and policies have been repealed, the racist and discriminatory notions and social mores that gave rise to them are still present in Canadian society and underpin our health policies — and, yes, forced and coerced sterilization still occurs.

In 2017, after a public outcry from Indigenous women who had been sterilized in a Saskatoon hospital, I was commissioned to conduct an external review of the practice of tubal ligation in the Saskatoon Health Region. Although many came forward, Dr. Judith Bartlett and I interviewed seven women who had been sterilized against their will in a Saskatoon hospital. This study revealed that survivors of forced and coerced sterilization felt invisible, profiled and powerless by the Canadian health care system.

Sterilization without consent, or with coerced consent, leaves women extremely traumatized and terrified with the knowledge that the Canadian health care system does not have their best interests in mind. Among other trauma-induced responses, the lack of trust makes them avoid basic or even necessary health care for themselves and their families, especially concerning their reproductive health.

This was the case for all of the women interviewed in the report, who expressed to me that they go to great lengths to avoid doctors out of a fear of being retraumatized.

On the issue of coercion, one Indigenous woman with a child with cerebral palsy and about to deliver another baby was told that if she did not sign the consent to a tubal ligation, her baby that was about to be delivered would also have cerebral palsy: think about that.

The external review provided recommendations for change, including calls to action relating to support and reparations, cultural training and education, law and policy reform. It also laid the foundation for the class action lawsuits that are currently occurring all across Canada in Saskatchewan, Alberta, Ontario, Manitoba, Nova Scotia, British Columbia and now Quebec.

In 2019 and 2022, the Standing Senate Committee on Human Rights completed two studies on forced and coerced sterilization of persons in Canada. In the first study, the committee heard from several experts on the topic of sterilization. In The Scars that We Carry: Forced and Coerced Sterilization of Persons in Canada — Part II, a comprehensive study was completed with survivors of forced and coerced sterilization. Both reports provided strong recommendations and calls to action on the eradication of forced sterilization.

Internationally, the United Nations Committee Against Torture, the Inter-American Commission on Human Rights and two UN special rapporteurs have also called on Canada to take concrete action on this issue.

Regardless of these directives, we still see a crisis in Canada. In the words of Madeleine Redfern, a witness who spoke about the terrifying experiences of Inuit women:

In an inquiry that was done in the 1970s, it was determined that hundreds of Indigenous women from 52 Northern communities were sterilized . . . . at least 70 Inuit women were sterilized. In Igloolik, 26% of women between the ages of 30 to 50 were sterilized. In Naujaat, formerly known as Repulse Bay, almost 50% of women in the 30 to 50 age group were sterilized. In Gjao Haven, 31% of the women had been sterilized. More than 25% of women in Chesterfield Inlet, Kugaaruk had been sterilized. Those are the only ones that were well documented, but we know there were a lot more.

Other data from the Minister of National Health and Welfare indicates at least 470 Inuit and Aboriginal women were sterilized in 1972 alone.

Dr. Josephine Etowa spoke of her participation in a project that facilitated health care delivery in rural Nova Scotia to Black women. Professor Etowa explained that upon reviewing data from the study, team members noticed “the issue of hysterectomy continually coming up in the qualitative interviews involving 237 women.”

The issue of forced hysterectomies as a form of sterilization is as equally shocking, but it’s not surprising. Louise Delisle, a Black woman from Nova Scotia, was 15 when she gave birth to her daughter. The attending doctor gave her a partial hysterectomy, and she was never able to have more children. Her mother was her guardian and did not consent to this.

Another one of the Senate witnesses was sterilized in 2018 when she was 24. She had two children, and she shared the story of the birth of her son. As she was waiting for a Cesarean section, she knew the baby she was carrying was in distress and at risk of going into septic shock. The doctor informed her that she should have a tubal ligation. The witness explained that, given her state of mind at the time, she was willing to provide consent for the sterilization if it meant the Cesarean section would proceed and her baby would be saved.

Another witness shared that:

Paired with blood loss, pain, exhaustion, and lack of family presence, I find it unethical that I was asked to make a choice about a procedure that I did not know was permanent. Yet, within two hours of giving birth, I was in the operating theatre getting sterilized.

Other examples of coercive methods include intimidating medical terminology, not explicitly informing women that sterilization procedures are permanent and threatening to apprehend their newborn if they do not sign the consent form.

While the exact extent and severity of forced sterilization have not been determined — we need good data on that — my office has documented over 12,000 Indigenous women in Canada who have had coerced or forced sterilization between 1971 and 2018.

What can we do about this? How will this bill help stop these atrocities?

Canada prides itself on having a health care system that is grounded on five core principles: comprehensiveness, public administration, portability, accessibility and universality. These are the core principles of the Canada Health Act. Two of these principles are particularly relevant — accessibility and universality — although two sections of the Canadian Charter of Human Rights and Freedoms highlight the importance of the right to health care access for all Canadians.

First, section 15 states 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 and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, physical or mental disability.

Similarly, section 7 states:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Unfortunately, these rights to health care access are not the reality for all, particularly for marginalized and vulnerable populations who have been and continue to be denied reproductive rights through coerced and forced sterilization procedures, despite being a small portion of the nation’s overall population.

Coerced and forced sterilization is not a matter of the past; it is a disturbing reality of the present. It is also illegal under Canadian law. For instance, section 265 of the Criminal Code is assault; section 267 is assault causing bodily harm; section 268 is aggravated assault; and, in addition, all provinces and territories have legislation requiring consent for medical care and treatment. To date, no charges have been laid, to my knowledge.

I will now discuss how Bill S-250 is the next best step in ensuring we uphold Charter principles and provide protections for the populations that are most typically affected. This bill would bring about important changes to the Criminal Code, notably by explicitly setting out that the act of sterilizing a person against their will and/or without obtaining proper consent is a criminal offence in Canada.

Bill S-250 amends section 268 of the Criminal Code, which covers aggravated assault offences, to include a new offence for sterilization procedures. Under this offence, new section 268.1(7) establishes that anyone who takes part in coercive measures to cause or attempt to cause someone to be sterilized is guilty of an indictable offence that holds a maximum of 14 years in prison.

Moreover, new section 268.1(2) establishes that section 45 of the Criminal Code — which sets out that everyone is “protected from criminal responsibility for performing a surgical operation on any person for the benefit of that person” if it is “performed with reasonable care and skill” and reasonable to perform with respect to the health and circumstances of the case — is not a defence to the new offence of sterilizations.

However, new section 268.1(3) allows an exception, stating that the new section does not apply where the sterilization procedure is performed by a medical practitioner who obtained informed consent of the individual and followed the safeguard measures stated in new sections 268.1(5) and 268.1(6).

These safeguard measures include the following: Medical practitioners must inform patients of all possible alternative contraceptive options that temporarily prevent conception; ensure that patients understand that they can withdraw consent at any time leading up to immediately before the sterilization procedure; and ensure comprehension of the provided information, fully informed consent and an absence of external pressure before performing the sterilization procedure.

Lastly, new section 268.1(4) clarifies that consent is deemed not to have been obtained where:

(a) the person is under the age of 18;

(b) the person is incapable of consenting . . . for any reason; or

(c) the person has not initiated a voluntary request to undergo a sterilization procedure.

Section 268(6) is a very important section that adds a final opportunity to withdraw consent, which must be offered before the procedure occurs.

In summarizing the importance of the bill, when we ensure that coerced and forced sterilizations are illegal under the Criminal Code, the reproductive rights of vulnerable and marginalized populations are better protected. It is but one tool to assist in the eradication of these practices.

It is important to note that the 2015 Truth and Reconciliation Commission Report’s Call to Action 19 urges the federal government to narrow the gaps between Aboriginal and non-Aboriginal community health outcomes, encouraging that the federal government includes maternal health as one indicator of a health outcome gap. This is also addressed in this bill.

Reproductive justice can be defined as:

. . . the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.

How can we pride ourselves for having a health care system that promotes the principles of universality and accessibility to all, while robbing certain populations of the same standard of care?

Second, the implementation of this bill establishes a legislative framework that explicitly recognizes the place coerced and forced sterilization has in the legacy of colonization, racism and systemic discrimination in Canada. Coerced and forced sterilization is a national crisis that must finally be addressed in a genuine way.

The question is simple: Why are these women having their tubes tied, burned and cut without consent? These horrific practices are overwhelmingly overrepresented by Indigenous women, women with disabilities, racialized women, intersex children and institutionalized persons.

These statistics are no coincidence. It is evident that sterilization practices are being implemented to ensure specific groups of people do not have the ability to reproduce in Canadian society. Simply put, it is a modern form of eugenics.

Third, this bill would respond to the recommendations of the Standing Senate Committee on Human Rights, namely Recommendation 1, “That legislation be introduced to add a specific offence to the Criminal Code prohibiting forced and coerced sterilization.”

In addition, the United Nations Committee against Torture, the Inter-American Commission on Human Rights and two UN special rapporteurs have called on Canada to take concrete action on this issue by following through on the direction of the United Nations Committee against Torture to:

Adopt legislative and policy measures to prevent and criminalize the forced or coerced sterilization of women, particularly by clearly defining the requirement for free, prior and informed consent with regard to sterilization and by raising awareness among [I]ndigenous women and medical personnel of that requirement.

It would also respond to international pressures for Canada to be held accountable for this injustice it has inflicted on certain marginalized and vulnerable groups.

Article II of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide highlights that “imposing measures intended to prevent births within the group” is considered genocide, which I believe coerced and forced sterilization falls under.

Canada could pave the way in setting a good example internationally by taking concrete measures to address its own history and present-day practices of coerced and forced sterilization.

In conclusion, I would like to thank all my parliamentary colleagues, who have been so incredibly supportive. I would also like to thank the Standing Senate Committee on Human Rights and all of the stakeholders who have contributed tirelessly to move this bill forward. My office has received overwhelming support for this bill from the newly incorporated 200+ members of the Survivors Circle for reproductive justice, as well as community leaders from communities big and small across Turtle Island. Their dedication to this issue has resulted in the birth of this very critical bill.

Most importantly, I would like to thank the women who have trusted me, the women who have telephoned me, the women who have emailed me or found me in person to tell their stories and the courageous women who have come forward to provide testimony. I encourage others to keep contacting me. I will never give up.

I want to thank Tracy Bannab and Brenda Pelletier for being the first women to come forward. They faced a horrendous amount of racial abuse and targeted attacks from social media for telling their stories. Without them as a catalyst, we would not be standing here today. I want to thank Betty Ann Adam for calling me that day and exposing to the world what was happening to Indigenous women.

Thank you to all of the survivors of coerced and forced sterilization who have helped bring this bill to fruition. Your bravery and fearlessness to speak up are outstanding, and you have all made positive changes for generations to come.

As senators, we must use our platform to fight for those who do not have a voice and strive to restore their reproductive futures. Through Bill S-250, we can take a step toward eradicating this blatant violence. Let us come together to be on the right side of history.

Meegwetch, thank you, all of our relations.

Senator Boyer: Thank you for the question. I don’t have anything to do with litigation. However, I can connect you with the people who do.

I know that there is a lot of litigation going on. The implications are that the women are being heard. The Saskatchewan case is waiting for certification at the moment, and I believe it’s coming shortly. Once that starts rolling, we will be seeing it in other provinces as well. That’s just one more tool. This bill is a tool, and the class actions are a tool. Together, I think there must be a huge, several-pronged approach to eradicating this. Those are only two tools. We need to have the medical associations on side. We need to have a huge national approach. Thank you for raising the issue of litigation because I think the litigation is important. However, I do not have anything to do with it.

(On motion of Senator Wells, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Kutcher, seconded by the Honourable Senator Boehm, for the second reading of Bill S-251, An Act to repeal section 43 of the Criminal Code (Truth and Reconciliation Commission of Canada’s call to action number 6).