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C-6 Neither Helps Nor Harms Human Rights Because It’s Not a Real Law

In 1993, Brian Mulroney and his Tories bottomed-out at 14% in the polls. After nine years in power, the party had exhausted the patience of Canadians, not so much with its policy direction, which was largely continued by subsequent governments but because Mulroney’s kind of charisma had turned on him. His unctuous charm had gone from asset to liability, as had his loyalty to his team in the face of scandal and minor corruption. But he believed he had an ace up his sleeve.

As the guy who had declined to place a new abortion law before parliament despite the invitation of the Supreme Court, and as the guy who had received much but given little to the social conservatives who had stood behind his party for decades, the last thing anyone would expect would be for him to attempt to fight an election on a social issue. But, brilliant strategist that he was, Mulroney hit upon a motherhood social issue that would reunite his coalition and stop the insurgent socially conservative Reform Party: child pornography.

The Internet, that series of tubes nobody understood, had emerged as a new social force in Canada in the late 1980s and helped to reactivate society’s fears of anonymous predators luring impressionable youths. The tricky thing was getting the opposition parties to oppose the bill. But Mulroney, a successful lawyer in Québec before his ascent to the PMO, had a damned clever plan.

What if parliament were presented a child pornography law that was so egregious, so invasive, so overreaching, so incompetently written that decent, responsible folks could not possibly support it? Mulroney sought to craft a child porn law that was so bad that opposition members felt ethically obliged to oppose it.

The draft legislation proceeded to criminalize students who were romantically involved passing notes in class and any play, film or book in which persons under the age of majority expressed a desire to sleep together. It didn’t just make it a criminal act to write or see a John Hughes movie; it would be an offense to possess a copy of Romeo and Juliet.

But the Liberals and NDP were wise to Mulroney’s ploy. Svend Robinson, the NDP justice critic, was dispatched on an extended trip to Europe, lest his penchant for honesty get in the way of the party’s plan to roll over and vote for whatever garbage legislation was placed before the House. Seeing this, the Tories began adding more sloppy, offensive and absurd provisions to the law as it wended its way through parliament. But the opposition wouldn’t bite.

Why?

Opposition parties’ desire for power was their obvious motive for waving this egregious piece of legislation through. But how did more responsible members justify this? Beginning in 1977, even before the patriation of the 1982 Constitution and adoption of the Charter, Canadian courts had become increasingly confident in striking down bad public policy and, to an extent, writing replacement law themselves. Liberals, Bloquistes and New Democrats were confident that the courts were an effective enough guardrail for Canadian democracy that they could sit back and wait for the courts to fix the law.

And that is what has happened. The law, as it currently exists, as informed by case law and modified by a succession of court judgements, is a perfectly good law.

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This might help to explain Bill C-6, the anti-conversion therapy bill before parliament, the bill that the Trudeau government is desperately trying to convince the Conservative Party to oppose. The bill appears to make it illegal for any counselor to question or treat child and adolescent gender dysphoria using anything other that cosmetic surgery, puberty blockers and hormones. Talk therapy, which has assisted young people in feeling comfortable and at peace in their bodies in the past now carries the penalty of custodial jail time. The idea that it is normal for adolescents to feel uncomfortable or alien in their changing bodies has been effectively criminalized. Adolescence is now a disease to be treated with surgery, sterilization and a lifelong hormone regime. Witnesses who have found these treatments ineffective and have “de-transitioned” with the assistance of talk therapy were barred from testifying before the parliamentary committee on C-6 on the grounds that de-transitioners are an anti-trans “hate group.” NDP MP Randall Garrison distinguished himself in the committee by first voting to bar de-transitioner testimony and then arguing that de-transitioners did not exist, that no person has ever repented of a gender transition and that to suggest such individuals do exist is “a myth” propounded by “hate groups.”

But the legislation does not merely categorize talk therapy for gender dysphoria as a criminal offense. It conflates Christian anti-gay conversion therapy with talk therapy for gender dysphoria. The clinically illegitimate and ineffective “pray away the gay” programs also now carry with them the same prison sentences as treating gender dysphoria with talk therapy. It is an offense, now, to attempt to suggest to a young person that they might be attracted to members of the opposite sex and question their same-sex attraction.

Let’s think that through for a moment… Doesn’t this mean that telling a same-sex attracted young person that they might be trans gets you sent to prison for anti-gay conversion therapy? Doesn’t this mean telling a trans kid they might actually be gay gets you sent to prison for anti-trans conversion therapy? That would be my take. In other words, it’s illegal to counsel kids who are confused about their sexual and gender identities. Period. The law puts anyone who counsels children on notice that they have until the bill achieves Royal Assent to get out of their current line of work.

Not only does this law endanger mental health providers. It endangers gender-non-comforming kids by cutting them off from the attention and support they need. And it is not merely engaged in hornswoggling the religious conservatives and gender critical feminists it provokes; it also exploits the emotional and physical labour of trans and gay rights activists by deceiving them into thinking it protects gay and trans youth.

And it’s like it’s 1993 all over again because no opposition party is rising to the Liberals’ bait. The Liberals still need a wedge issue that will stampede progressive voters into their tent, and one that must be attached to a piece of legislation so egregious, so overreaching, so self-contradictory, so incompetent that either Jagmeet Singh or, preferably, Erin O’Toole feels duty-bound to oppose it.

It is in this light that we should anticipate the anti-hate online hate-speech legislation that the government is currently crafting. We should expect to see a law attaching jail time to any criticism of Israeli domestic policy, misgendering an individual in private conversation and a host of other provisions designed to specifically target constituencies who will lobby their MPs to oppose the law.

While little of this debate will be covered in mainstream national media, which will emphasize the nigh-unanimous support for these laws, Canadian civil society will become a hive of activity as organizations mobilize, dodge or split as the election drumbeat grows stronger. In a low-turnout election, the role of mobilized civil society organizations will be crucial in driving turnout. Churches, trade unions, public education organizations, women’s centres will communicate with their members about these laws and divisive internal battles will ensue.

I know many folks on all sides are itching to get into the ring and mobilize around these two pieces of legislation; but this is a mistake. Not only will it further divide our organizations and even our families, it is ultimately serving a government re-election strategy. These laws have not been proposed in good faith. The government has no actual intention of seeing their provisions go into effect. These documents are propaganda not law; that is the only function they will ever serve.

Instead, we need to begin joining together to call out this bad faith legislating. Evangelical Christians and trans rights activists might not have much in common when it comes to their perspectives on the two bills. But both groups should experience a shared outrage at being manipulated to serve the political ends of a corrupt regime by forcing divisive and costly conflicts upon them.