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

April 1st, 2019 by Michael Hackl

This article was first published on rabble.ca

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.

Filed in: Constitutional Law, Human Rights

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