A constitutional cop‑out: Federal government passes the buck on conversion therapy

Please chip in to support more articles like this. Support rabble.ca today for as little as $1 per month!

Prime Minister Justin Trudeau attends the flag raising ceremony for Pride Month on Parliament Hill. Photo: Adam Scotti/PMO

The federal government missed an opportunity to introduce a significant protection for the LGBTQ community by failing to take steps to ban conversion therapy (the discredited practice of trying to convert individuals with non-heterosexual sexual orientations to heterosexuality under the guise of therapy). Instead, in its response to a petition calling for a ban on conversion therapy the federal government passed the buck to the provinces and territories.

The petition and the government's response

On February 1, NDP MP Sheri Benson presented a petition to the House of Commons seeking a ban on conversion therapy, with a focus on protecting minors. The petition pointed out that organizations such as the World Health Organization and the Canadian Psychological Association have issued statements indicating that the practice is not supported by scientific research, lacks medical justification, and rather than providing assistance to affected individuals, can have significant adverse effects on their mental and physical health.

The government's response, tabled on March 18, stated that conversion therapy is immoral, does not reflect the values of Canadians, and has been identified as unethical. However, the government refused to take action against the practice, claiming it falls under the scope of regulation of health professionals (on the basis that some conversion therapy is practiced by regulated medical professionals such as registered psychiatrists or psychotherapists, but conveniently ignoring that not all conversion therapy is practiced by medical professionals), which according to the division of powers between the federal and provincial governments in Canada's Constitution is a provincial responsibility. According to the Constitution, the federal government has the jurisdiction to pass laws about certain subjects, while the provinces have the jurisdiction to pass laws about other subjects, and neither level of government is supposed to intrude on the jurisdiction of the other.

As a result of the government's refusal to address this issue substantively, we are left with a situation where there is some level of restriction against the practice in three provinces and one city (Manitoba, Ontario and Nova Scotia, and Vancouver), but absolutely no protection against the practice in the rest of the country. 

The constitutional cop-out

Strictly speaking, the regulation of health professionals is a provincial responsibility under the Constitution. However, that does not preclude the federal government from taking action to address conversion therapy.

Even though the Constitution states that certain powers are exclusively within the jurisdiction of either the federal or the provincial levels of government, in reality there are areas where both levels of government can legitimately exercise some level of control. For example, the federal government has jurisdiction over criminal law, while the provinces have jurisdiction over roadways and the licensing of drivers. Both levels of government have laws relating to driving under the influence of alcohol. The federal laws on that subject are criminal laws, while the provincial laws deal with conditions of licensing drivers.

So it is an incomplete and misleading answer for the federal government to say that it cannot act to ban conversion therapy because it is an issue about the regulation of health professionals. The federal government can still deal with a matter if it can legitimately be dealt with under the criminal law. 

Could conversion therapy be addressed in the Criminal Code?

What makes a matter an appropriate one to be dealt with under criminal law?

Ironically, one high-profile case from the 1990s considered that question. I say ironically, because the case of R. v. Morgentaler [1993] 3 S.C.R. 463 also involved health-care issues. The case considered an attempt by the province of Nova Scotia to prevent the establishment of abortion clinics by prohibiting the performance of an abortion anywhere other than a hospital, allegedly on the basis that the province was regulating health-care services. However, the Supreme Court of Canada held that the province was really trying to pass legislation "aimed primarily at suppressing the perceived public harm or evil of abortion clinics," and "to prohibit abortions outside hospitals as socially undesirable conduct." The Supreme Court indicated that laws aimed at legislating morality, or addressing socially undesirable conduct were criminal laws that the province did not have the power to pass, and it struck down the laws in question.

More recently, in the case of Canada (Attorney General) v. PHS Community Services Society, the Supreme Court  confirmed that the federal government "has power to legislate with respect to federal matters, notably criminal law, that touch on health. For instance, it has historic jurisdiction to prohibit medical treatments that are dangerous, or that it perceives as 'socially undesirable' behaviour."

Now consider the government's response to the petition again. It states that conversion therapy is immoral, does not reflect the values of Canadian society and is unethical. This is exactly what the Supreme Court has said is the proper ambit of criminal law.

Where to now?

In answer to the federal government's response to the issue, opponents of conversion therapy should press their provincial or territorial governments to pass the most effective legislation they can to prohibit or limit this practice under the powers that they have. However, we should not give up on pressuring the federal government -- which has the power to address this issue through the criminal law, and should be called out on its effort to pass the buck on this issue. Hopefully, continued pressure will cause the federal government to address conversion therapy through the criminal law as immoral, socially undesirable conduct.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to probono@rabble.ca. Read past Pro Bono columns here.

Photo: Adam Scotti/PMO

Help make rabble sustainable. Please consider supporting our work with a monthly donation. Support rabble.ca today for as little as $1 per month!

Related Items

Thank you for reading this story…

More people are reading rabble.ca than ever and unlike many news organizations, we have never put up a paywall – at rabble we’ve always believed in making our reporting and analysis free to all, while striving to make it sustainable as well. Media isn’t free to produce. rabble’s total budget is likely less than what big corporate media spend on photocopying (we kid you not!) and we do not have any major foundation, sponsor or angel investor. Our main supporters are people and organizations -- like you. This is why we need your help. You are what keep us sustainable.

rabble.ca has staked its existence on you. We live or die on community support -- your support! We get hundreds of thousands of visitors and we believe in them. We believe in you. We believe people will put in what they can for the greater good. We call that sustainable.

So what is the easy answer for us? Depend on a community of visitors who care passionately about media that amplifies the voices of people struggling for change and justice. It really is that simple. When the people who visit rabble care enough to contribute a bit then it works for everyone.

And so we’re asking you if you could make a donation, right now, to help us carry forward on our mission. Make a donation today.

Comments

We welcome your comments! rabble.ca embraces a pro-human rights, pro-feminist, anti-racist, queer-positive, anti-imperialist and pro-labour stance, and encourages discussions which develop progressive thought. Our full comment policy can be found here. Learn more about Disqus on rabble.ca and your privacy here. Please keep in mind:

Do

  • Tell the truth and avoid rumours.
  • Add context and background.
  • Report typos and logical fallacies.
  • Be respectful.
  • Respect copyright - link to articles.
  • Stay focused. Bring in-depth commentary to our discussion forum, babble.

Don't

  • Use oppressive/offensive language.
  • Libel or defame.
  • Bully or troll.
  • Post spam.
  • Engage trolls. Flag suspect activity instead.