A blunt ban
How prohibiting conversion therapy in Canada is likely to be challenged in court.
Now that conversion therapy is illegal in Canada, the question is whether the ban will stand up to a Charter challenge.
Late last year, Parliament quickly passed a bill designed to ban the discredited practice, but with no debate or committee study in either the House of Commons or the Senate, thanks to the use of a unanimous consent motion. A previous iteration of the bill, significantly weaker, had drawn far more opposition from the Conservative party in the spring before the election.
That earlier version would have allowed for an exemption for consenting adults to engage in the practice of trying to change their sexual orientation or gender identity. The bill would have nevertheless made advertising or profiting from such practices illegal. It would also have criminalized anyone taking a minor for conversion therapy in a foreign jurisdiction. At the time, Justice Minister David Lametti said that the consenting adults "loophole" was as much as they could get away with under the constitution. This time, lawmakers decided to close the loophole.
"Remember that conversion therapy is a practice that went on in the shadows," Lametti said during the press conference upon tabling of the new version of the bill. "As we went through the last parliamentary process at committee hearings, a lot of people came forward and told their stories. We got a better idea of the devastating impact that it had—continues to have—on people. Some have never been able to get beyond it."
Lametti said that witness testimony at committee from victims showed parliamentarians the extent of how much the practice traumatized them. He also cited the emerging consensus in Europe and the UN to ban the practice altogether.
"We think now there is a stronger argument in favour of a complete ban than there was even a couple of years ago," Lametti added.
Tony Paisana, a partner at Peck and Company in Vancouver, but speaking in his personal capacity, says that the ban's survival, in its current form, will depend on the potential court challenge before the court. We'll see if Lametti's justification holds.
"If someone were to challenge it for being overly broad, you look at what the purpose of the legislation was and the rationale for it," says Paisana. "If the legislation ties up logically with the purpose, and you're capturing the people it's meant to be capturing, then arguably you are fine."
If the challenge relies on a section 2 Charter argument, such as freedom of religion, then the analysis would proceed on a different legal basis.
"The government is free to legislate in areas that impinge upon other freedoms," Paisana, in which case the analysis moves to a section 1 Oakes test, to justify the infringement in light of the social harm that can be proven it is meant to address.
Paisana says he worries that a more multi-disciplinary approach to addressing conversion therapy may have been more suitable than relying on criminal law. He says it can sometimes be more effective to take a "scalpel" in legislating a social approach than using a sledgehammer.
"There are different ways of creatively getting at the problem without the confrontational and adversarial nature of the criminal justice system," Paisana says.
Some provinces and territories, including Ontario, Quebec, Nova Scotia, Manitoba, and the Yukon, have different conversion therapy laws. Some municipalities rely on licensing powers to ban the practice.
"One of the challenges that always comes along with legislating in these controversial areas is that it provides a platform as well, because inevitably someone will challenge it," says Paisana. "It will become something of a lightning rod issue, and for those in the communities that have been advocating for prohibitions against conversion therapy, I can also see why that would be traumatic.
Paisana points the challenge before the Supreme Court involving Trinity Western University's accreditation as a law school as another complex case arguing competing rights -- in that case, freedom of religion versus the right to education and the right to freedom of association.
"People are already chalking off the battle lines of freedom of religion versus the rights to be free from harmful therapies, and I expect people are going to have to deal with those challenges eventually, and the courts will be called upon to balance out these rights, and it's not the first time that's happened," says Paisana.
Eugene Meehan, a partner with Supreme Advocacy LLP in Ottawa, argued for two intervenors at the Supreme Court of Canada in the Trinity Western case.
"We now know from the Trinity Western decision that courts will be reluctant to adopt a concept of religious freedom permitting a faith community to impose adherence to religious beliefs or practices on those who do not share that faith," says Meehan, also a former CBA president.
Meehan, however, says we shouldn't compare a potential challenge against banning conversion therapy to the circumstances surrounding Trinity Western.
"The focus in those cases was balancing, on the one hand, the right of a regulator to protect the amorphous concept of public interest with, on the other hand, the freedom of religion to study in a particular environment defined by certain religious beliefs," says Meehan. "At its core, it was an administrative law dispute that engaged Charter rights. In the conversion therapy case, the challenge would be directly to government legislation, which engages a different legal analysis."
A more relevant precedent, Meehan suggests, would be B. (R.) v. Children's Aid Society of Metropolitan Toronto. In that 1995 ruling, a majority of the Supreme Court held that legislation depriving parents of the custody of their child and the ability to choose medical treatment for her in accordance with their faith as Jehovah's Witnesses, infringed s. 2(a). However, that infringement was justified under s. 1 partly because the "state interest in protecting children at risk is a pressing and substantial objective."
"The right of parents to choose the medical treatment of their children in accordance with their religion was a fundamental aspect of freedom of religion," Meehan says. "The Supreme Court has been crystal clear that religious freedom is founded on the idea that no one can be forced to adhere to or refrain from a particular set of religious beliefs."
And yet, while a strong personal autonomy and choice component is found in many of the freedom of religion decisions, it's unclear whether a ban on conversion therapy Charter would be considered a violation of personal and religious belief, says Meehan.
"Courts often give deference to the legislature in its determination of how to best strike the balance between the rights of religious groups versus protecting vulnerable individuals," he says. "It remains to be seen where that particular constitutional balance point will be"