The Liberals’ beefed-up ban on conversion therapy is a Charter challenge in the making

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The newest incarnation of the Liberal government’s bill to ban conversion therapy raises a complicated ethical, moral and constitutional question: Should consenting adults be allowed to access services that are harmful to them?

The answer, at least according to Justice Minister David Lametti, who tabled the bill Monday, is an unequivocal “no.”

“Torture is something you can’t consent to,” he said during a press conference alongside fellow cabinet ministers Randy Boissonnault and Marci Ien, as well as community activist Gemma Hickey. Mr. Lametti was referring to a 2020 United Nations report that said conversion therapy – which aims to change someone’s sexual orientation or gender identity and is most often forced on children and youths – is “inhuman and cruel and create[s] a significant risk of torture.” It’s indeed a fraudulent practice, discredited by major psychological, psychiatric and health organizations across the world, that endeavours to counsel individuals “out” of being gay or trans.

The government’s old bill tackling conversion therapy, Bill C-6, died on the Order Paper when a federal election was called last summer. It only went as far as banning conversion therapy for children, as well as the advertising of and profiting from conversion therapy, taking children out of Canada for the purpose of subjecting them to conversion therapy, as well as “causing a person to undergo conversion therapy without the person’s consent,” which likely would have already constituted a Criminal Code violation. The new bill, Bill C-4, would make it an offence to cause “another person to undergo conversion therapy – including by providing conversion therapy to that other person.” That means that those who offer conversion therapy to anyone, even adults, could face up to five years in prison.

Mr. Lametti explained that the decision to take this bill further than the last one was rooted in consultations with the community and in understanding the trauma of those who have been subjected to conversion therapy. Many provinces and municipalities, including Ontario, Nova Scotia, PEI, Vancouver and Calgary, already prohibit the practice (though prosecution is difficult and infrequent, since it usually happens behind closed doors.) A national ban would be a more comprehensive response.

But the government will undoubtedly face legal challenges – as well as community resistance, particularly from some religious organizations – if it succeeds in criminalizing the offering of a service to adults, even if that service is bogus and harmful.

Proponents of an outright ban will argue that it should not be legal to help people injure themselves. But in Canada it is legal for homeopaths, for example, to prescribe nosodes – which are essentially vials of water, infused with hope and dogma – in lieu of vaccines for illnesses such as whooping cough, measles and mumps. Health Canada even actually approves and regulates these “treatments,” though the agency has said that none are approved as alternatives to real vaccines. And there is real harm being done in these cases: Canadians are essentially being scammed into believing certain homeopathic remedies will protect them from a variety of illnesses, and as a result they leave themselves (and often, their children) vulnerable to infection. Yet the practice of offering, advertising and/or financially profiting from homeopathy has not been criminalized, even though it could cause lifelong, irreparable damage to those who voluntarily seek its service.

It is also legal in Canada to provide medical assistance in dying (MAID), which some might view as the ultimate harm. The Supreme Court ruled in 2015 that the Criminal Code’s prohibitions on providing MAID infringed on Section 7 of the Charter, which upholds the right to life, liberty and the security of the person. Those who might challenge the government’s prohibition on the offering of conversion therapy to anyone, regardless of age, could have similar grounds for a Charter challenge under Sec. 7, as well as under Sec. 2 protections of freedom of religion and freedom of expression.

These are imperfect comparisons, of course. But it’s still worth considering: why should the fraud of, say, some homeopathic treatments remain legal, when the fraud of conversion therapy is being criminalized? Why is helping someone die legal, while providing often harmful counsel might soon not be? On the latter point, one could argue that assisted dying relieves suffering while conversion therapy inflicts it, but someone who seeks out the practice might see it as a way to alleviate suffering born from a conflict between religious belief and sexual orientation. Broadly speaking, the Charter’s purpose is to navigate precisely these kinds of conflicts around what a person has the right to do. It is the logical next step for such a targeted piece of government legislation.

Indeed, however dishonest and abhorrent you or I – and the UN, the Canadian Psychological Association, the American Psychiatric Association, the World Psychiatric Association and others – might regard conversion therapy, adults in Canada likely maintain a Charter right to seek it. Inevitably, Canada’s federal government will be forced to confront that.

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