 So shall we begin? Welcome everyone. And thank you for coming to our health law seminar today. I am very happy that Alyssa was able to come. Alyssa and I met in person pre-COVID. And it's really amazing to see each other in the flesh again. So without further ado. Alyssa Lombard is a lawyer working in matters related to Indigenous Crown relations, particularly specific claims, human rights, and reproductive rights, and Indigenous governance issues. She is a member of the Ontario and Saskatchewan Law Society and is completing an LLM where her research focuses on systemic reform and health to hold wrongdoers in the medical profession to account using constitutional instruments. Alyssa is a mom to two young girls who she shares with her husband Alan LaPlante, a citizen. Oh dear, I should have asked her to say that first. Neha. Neha Nation originates from English River First Nation. I'm Muslim in First Nation, Saskatchewan. And it is a devoted citizen of the Mi'kmaq Nation, originates from Elsbuck Tuck First Nation in New Brunswick. I'd like to introduce myself. I'm Martha Painter and I'm an assistant professor now at UNB, but the health law institute has very generously kept me as a member even though I moved away. And after today's seminar, I want to alert you that our next one isn't until January, Friday, January 20th. And that's going to be only online, decarcerating disability through the courts, deinstitutionalization, and prison abolition. And that's with Yatvin Boish from the University of Illinois in Chicago. All right, without further ado, good time. Thank you so much for that generous introduction. My name is Alyssa. I'm here with Mynees in our way. She just got called to the bar. So all of you will be getting there soon. My name is Paula Sock now because she was just married this summer. A lot of changes. I think I'm making her shy. I think, yeah. So she's now working with me, and I'm very fortunate to have her and tremendously grateful. And you know, this has to do with, you know, living our ways too and passing knowledge down, sharing knowledge, keeping things as close as we can and carrying on with those teachings that we do get in this world so that, you know, that curve isn't as steep when the next generation jumps in. Her mother happens to be a lawyer too, so she's well surrounded by some opinionated ladies. So I'd like to, of course, acknowledge that we are on the unceded, unsurrendered territory of the Mi'kmaugh Nation, our nation, and that it's really nice to be able to say that instead of another litany of nations when I'm in other places. Feels nice to be here. There is a, you know, there's a real energy in the air here, I find, that is extremely welcoming. People tend to be pretty kind, and it's definitely one of the most comfortable places for me personally, I think. And so we're here to talk about dignity and how to use the law as a tool to uphold that dignity in reproductive care. It might seem really, really simple, but I can tell you that I wrote about 149 pages on why it's not that simple. And really there are some pretty serious, you know, caverns between what the law says and what the law can actually do in application. And in that cavern you find all kinds of things, canyons of access to justice issues, the ineffectiveness of existing legal remedies. You find biases, you find systemic racism, you find sexism, toxic misogyny. I mean, let's keep talking if we want to, but the fact of the matter is it doesn't help to point to the problems all day long. We also have to think about what the solutions are. However, let's talk just a little bit about the problems and why the existing remedies are not terribly effective. In my opinion, I'm sure everybody has one, but here it is. So in terms of forced sterilization and birth alerts, which are two versions of obstetric violence that cause indescribable harm, there's no amount of litigation, financial compensation, or even structural reform that can alleviate, change, remedy what the survivors of forced sterilization and birth alerts and other forms of obstetric violence have experienced. This goes to the core of their self concept as women, their position within their nations, their families, their intimate relationships with their partners, their children, and even the relationships between their children. So it is really important to understand here when we're talking about reproductive violence and when we're talking about forced sterilization and birth alerts that the harms are indescribable, that the stakes are extremely high. And so we're not thinking about someone who jam their finger in a door in a rat, in a rope tort case, who's a violin player and then gets compensated for how much that finger was worth on the violin. That's usually how tort law works, right? When we're talking about a woman's ability to procreate and her desire to do so or not do so, there's something very sacrosanct about that. And so coming from that perspective and that understanding, if we have a look at what exists in the law to make sure that the bodily autonomy of women is protected, that medical self determination as both those concepts live in section seven of the charter are given effect can breathe, we see that, of course, we have criminal law. So is sterilization without consent and assault? Well, Chief Commissioner of the RCMP, Brenda Lucky did say before the Senate Committee that it is. All a survivor has to do is make a complaint, they will investigate and act accordingly. At least that's what they say publicly. But that's not what happens. And so what kind of criminal conduct or what kind of criminal acts and offenses in the criminal code are included that possibly or ostensibly address the forced sterilization of Indigenous women? Well, of course, you have assault, an aggravated assault. You have, there are provisions that deal with excision, so female genital utilation. You have, you know, other instruments within those very specific offenses such as aggravating and mitigating factors that would be important to consider in the context of a fiduciary relationship. Or in other words, a relationship where there's a significant power imbalance, i.e. a birthing woman and a physician or anybody else present with the ability to sterilize a woman. We also have to think about the sexual nature of forced sterilization. And there's some dueling case law on that out west. And the reason that that's important is because of something that you may have learned about your civil pro-classes or not yet, I don't know, limitations, right? So you only have so long to the doctor or hospital, etc. But if it's a sexual assault, there's no such limitation in most provinces. I don't know if that's the case here, but in any event, it certainly is the case in Saskatchewan and Manitoba. And then you also have to think about international conceptualizations of what this practice actually constitutes, such as torture, such as genocide, such as cruel and unusual treatment. And those fine parallels within constitutional law in section 12, for example, that says that no one should be subjected to cruel and unusual punishment or treatment, which are two different things. Most of the case law circles around the punishment notion, but treatment is there for a reason. It's not disconnected from punishment, but it is there and it's clearly different. What does it mean? Good question. Not a lot of stuff on that. And there's also the consideration in criminal law of sentencing and what is the effectiveness of custodial or non-constitutional sentences associated with anyone who would be responsible for forced sterilization. What we know is that sentencing, of course, has some very clear objectives, deterrence, punishment, rehabilitation, etc. Is it effective in addressing the forced sterilization of Indigenous women? I would say, which is sometimes the case with civil law as well, that the existence of a specific tailored criminal offense to forced sterilization is likely more effective than its actual trigger. And the reason I say that is because if physicians know, if surgeons know, that in exercising and imposing their personal biases and views and judgment on a vulnerable birthing woman or a woman seeking other form, you know, reproductive health care, that they may or may not be charged and end up in the PA pen for 14 years, they might not risk it. Right? So will it diminish the likelihood of this kind of conduct? Probably. Now, if we want to talk about the effectiveness of a criminal of the criminal system and custodial sentences and the carceral environment, we know that it's roundly ineffective, roundly ineffective, particularly in places like Saskatchewan. And I talk about this in my thesis where if a physician were to be charged and convicted and sentenced under what is coming in as Bill C 230, which seeks to specifically criminalize forced sterilization, where would they end up? Well, they would likely end up in the federal penitentiary in Prince Albert, which has putrid conditions, which is really overpopulated and very disproportionately populated by indigenous people. And so what is that going to do to change the heart and mind of the person who did the thing that hurt a woman so badly? I would dare say nothing or it might even exacerbate their biases. So in my thesis, I worked on this concept and talked about how roundly ineffective criminal law is. The risk of it might have some kind of deterrent effect and mitigate the instance or the incidence of the practice, which is good, but there's no clear way to measure that. So it's rather ineffective. If we look at forced sterilization in tort law, and I don't know if anyone here has taken, if there are specific medical malpractice classes or what have you, or if you've explored the fiduciary relationship between a physician and a patient, but that essentially stands for the proposition that there's power imbalance and that the physician has to act in the best interest of the patient, which entails a whole series of other obligations. The fact of the matter is that the patient is the beneficiary in that relationship, the physician or the healthcare provider is the fiduciary. So they have responsibilities and duties to the patient of an amplified nature because of that power imbalance. I would say that that power imbalance is exacerbated and compounded by the circumstances of childbirth quite clearly. I don't know how many of you have gone through that experience nor is it terribly relevant. Use your imagination. What I can tell you is that by having gone through it twice, it's not the best time to talk about doing it again. It's rough. It's hard. It's physically challenging. I read some literature today that suggests that the metabolic rate of a woman who was pregnant at the peak was 2.2. The metabolic rate of an elite athlete in competition at their peak is a 2.5. So what we want to consider in that evidence is that basically giving birth to a healthy child could be compared to doing it to her defense. It's not easy. It's really hard. It's hard on you physically, emotionally, mentally. And I think that that's something that society probably doesn't talk about enough. I mean, frankly, I turned into Kujo. I'll just be honest with you. It's brutal. Absolutely brutal. If you asked me at that time, I asked if you put out of my misery, that certainly wasn't consent to medical assistance and dial. And so we have to think about what that space looks like for the person who's going through it, for the patient, the vulnerable patient, and where that person is indigenous or belongs to another group that has been historically discriminated against or oppressed, otherwise marginalized, one must consider how acute the power and balance can be and how traumatizing and re-traumatizing birthing can actually be. There is evidence in literature that suggests that a person or a woman who has experienced sexual abuse as a child or as a younger woman, once they do give birth, can be very triggered by the experience. And so providers, physicians have to be conscious of that. They have to understand that that is possible. Not only is it possible in some cases, depending on who the woman is, it might even be probable. And so that is a part of the tool chest that I think is absolutely necessary for those in like circumstances. So now that we know that there's that kind of relationship, and I mean, I could delve into case law and start talking about Norba versus wine, rib. But I mean, is it really interesting? No, probably not. A little dry. So have a look at Picard and Richardson. They'll explain all of that to you and extremely detailed treaties. And I'm sure it'll be riveting. At the end of the day, that relationship is one of a power imbalance. And we have to keep that in mind in all interactions and transactions occurring within the bubble of that relationship, particularly during the parapartum period. So tort law also offers other causes of action, such as battery. And battery of a sexual nature, I think is rather fitting here, because we are talking about the reproductive ability of a woman. And so what does battery require in tort? Well, it mainly requires intent. And it stands apart from negligence in a damage assessment, because if you can prove battery in intent, then you do not have to prove your damages. If there is no battery and no intent, there's an alternative of negligence. And there you do have to prove your damages. And so that's the fundamental difference in the causes of action that are selected and how they're brought forward. And if there's one thing I can tell you at this very early stage in your careers, having worked for judges and read many a submission, is that you can plead in the alternative, which means, you know, it may or may not be this, this is the ideal. But if you don't hit it there, make sure you have an in the alternative. Don't plead both to the exclusion of the other. Don't forget one. Make sure that that in the alternative language is utilized, it will do your clients a great service. And it will also mitigate your liability. Just saying that because it's important. So when you get into the negligence component, what you have to talk about is the standard and the duty of care. So the circumstances in the context of any such situation would, you know, vary that duty and that standard of care. If you're talking about a woman who is actively birthing or in the care of heart and period, that standard of care comes all the way up. There's a reason why obstetrics and maternity are essentially one of the most legally volatile medical areas in which to practice. Because that power imbalance is significant, the stakes are high, we're talking about babies and very vulnerable women. And so that is the way that it is for a good reason. And so does this operate to the service of vulnerable and marginalized indigenous women who are birthing, who have been sterilized without their consent? Not really. And the reason is it costs a lot of money to bring a civil suit forward. It's not cheap. You need experts. Experts aren't cheap. You also need to understand and know that you have the right to make that decision. And this is where awareness really comes in. And it's fundamental and it's probably strange for a lawyer who represents hundreds of indigenous women who have experienced forced sterilization to come up here and talk openly about what's going on. But their instructions, let's be clear, are to raise awareness so that women understand what their rights are in conjunction with their own bodies. And those rights, they live and they're located in section seven of the charter, among others. But section seven of the charter provides that everyone has the right to life, liberty and security of the person. And the corollary concept of section seven that is very embedded within there is the right to bodily autonomy and the right to medical self-determination. The right to bodily autonomy and medical self-determination is inalienable. It is subject only to proper and informed consent. So circling back to tort law now, what does it have to say about proper and informed consent? What is that? Anyone have any ideas about what proper and informed consent should mean? Pillar or two, any thoughts? Okay, so first, it needs to be voluntary. So no coercion, no misrepresentation, no negligent misrepresentation, no third party influence, including from healthcare practitioners. That decision has to genuinely come from the volition of the person who's about to experience a treatment or procedure. Secondly, proper and informed consent requires capacity. So capacity to consider information, to think through that information, and to make a decision. Capacity, depending on the circumstances that you're in, of course, varies. And it's also attached to the type of procedure or treatment that is involved. So for example, if you have a woman who is pregnant, needs an emergency C-section, the consequences or results failing to do so, which may result in death or serious harm. Her capacity in that situation where there's an emergency, the requirement for that capacity is not quite as high as it would otherwise be. For example, for sterilization, which is neither emergent, which is non therapeutic, and which is also always considered non essential, might be medically advisable. It might be good to think about, but there's nothing about doing it in the instance of childbirth that is going to save a woman or her baby from serious harm or death. And so that is what the literature, the medical literature has typecast. Sterilization is non essential, non therapeutic, and non emergent, no emergency. So that means probably have to talk about it a little bit more. You might need to have your wits about you a little bit more, like perhaps childbirth instead of meter number seven is just not a good time, right? Seems like common sense would probably bring us there. The common sense isn't so common sometimes. And so capacity, we have, you know, that consent absolutely has to be voluntary. Capacity is fundamental. After that, the procedure, the treatment has to be directly referable and specific to the physician or the healthcare practitioner and the procedure. So there's all kinds of different types of tubal ligations. There's different ways to undergo sterilization. You can have the fallopian tubes cut and tied, cut and cauterized, cut tied and cauterized, you can have fishy clips. There's all kinds of different types of ways to do it. And the woman has the right to know what those ways are and to think about what way, if any, might be best for her. Again, the circumstances of childbirth are probably not ideal for that thought process. And then finally, consent has to be informed. And informed consent is the subject of an entire other doctrine that we could probably talk about for millennia. But basically in these circumstances, what it involves is knowing the risks, the consequences, no matter how minor, the benefits and also the host of options available. Understanding that the option of having no birth control and not undergoing sterilization is also a choice. The Supreme Court of Canada was very clear in Millet versus Shulman. And in Millet versus Shulman, you had a case of a Jehovah's Witness who had been in a terrible car accident, needed, scientifically speaking, according to her physicians, a blood transfusion to survive. Those physicians knew very clearly that she did not want one based on religious grounds. That was clearly indicated. It was known to the physician. He proceeded to do the blood transfusion anyway, probably saved her life. She sued him for battery in one. And the reason is that people have the right to bodily autonomy. It's inalienable. And they are the only ones that can decide what does and what does not happen to their bodies. And so, if we, if we think about that and how clear the law really is, right, you need voluntariness, you need capacity, you need specificity with respect to the physician, the physician with respect to the procedure. And you also need information. Seems to me that, and please correct me if you think I'm wrong, that consent is not an event. It's a process. It's a process best undertaken and frankly, probably only legally defensively undertaken over a period of time where the person subject to the consideration of options is in an environment that is appropriate to consider those options. Again, childbirth not being ideal to that kind of environment. So is tort an effective remedy? Well, let's think about this. Why does this happen? And how is it happening still? I'm sure a lot of you might be thinking that. I know I've been asked that question more than once. My simple answer is that it's still happening because a systemic problem doesn't have a systemic solution or hasn't been afforded systemic measures to address the core of the problem, but might be the core of the problem though. Well, there's this little known thing called eugenics, a eugenics ideology. And it was strongly encouraged by the architect of Canada's Universal Healthcare System out of Saskatchewan, coincidentally, or maybe there are no coincidences, I don't know. And basically, it stands for the proposition that some people are fit to reproduce others or not. And that determinations at the time was made through boards that were created by what are what was called anyway, number of sexual sterilization acts as well as in BC, it had approximately the same name. So this created boards and these boards would look at referrals they would receive from physicians, suggesting that their patients should be sterilized for X, Y reason, increased criminality, feeble-mindedness, slouting social norms, homosexuality was one of the reasons. So if we think about how ill-conceived eugenics ideology was and how it has hung over into today's era, in this particular practice, and perhaps even in a few others, seems to me that that ideology likely resides at the basis of this really big problem. And so how do we get at that? Criminal law doesn't seem to be terribly effective. You're dealing with one situation, in one instance, you're punishing the one person. Tort law doesn't seem to be terribly effective. What does it offer? Financial compensation? Financial compensation from an insurance regime that is extremely wealthy and at least partially subsidized by Canadian funds. There's no real deterrence. There's no real vector and vehicle for systemic change within those legal realms. Though seemingly there may be, one would think if someone's risking going to jail for doing something they ought not to do, maybe that'll stop them from doing it. But we know that that doesn't happen. It doesn't happen. And so going back to these eugenic boards, if we think about it and you have a look at the literature, what you'll see is that Indigenous people, particularly out of the George Council Hospital and a few others, were very disproportionately represented in the people the board had approved for sterilization. The differential was pretty staggering. And Indigenous women in particular were another subcategory of very disproportionately represented sterilized persons. Keeping in mind that at that time, and I think this is really fundamentally important to the dignity component of this talk, keeping in mind at that time that the Indian Act for a very long time defined a person as anyone other than an Indian. And so that delayed personhood, how harmful has that been? It recalls a quote that Obama brought forward some time ago. I think he said something to the effect of today's wealth tracks the old bad deals people got. And so if we consider this tremendous problem in the face of that, today's harms track the old ideologies that once guided these practices. It's one thing to repeal a law. It's another thing to completely reform conduct in a very powerful profession. And so with that in mind, one might think, well, aren't doctors self-regulated? You know, don't they have colleges that could keep them in check? How are they possibly doing this? They swear no to do no harm. This doesn't make any sense, right? Turns out those colleges are kind of ineffective too. And personally, in my own viewpoint, I don't think self-regulation is one of the better ideas. And I frankly don't think it's a great idea for our own profession. That's just my view. I know that there are pros and cons for both. And I don't think public regulation of all things is good, but I do think some late presence and, you know, some nails, if you will, some grit to rein things in is essential. And there's an example of what happened in the UK, where the UK moved away from self-regulation for stated reasons. Does it work better? I mean, I don't know. What I do know is that in the circumstances, for example, of Ontario, where self-regulation has been applied for quite some time, you know, you have suspects like Barwin, a disgraced fertility doctor who inseminated dozens of women with his own specimen. In relation to which there was much suspicion, but carried on doing this for decades. So how could that possibly happen? You also have the disgraced Dr. Nathong, who worked at the University of Ottawa's medical clinic, who would put in or have telephones or video recorders and, you know, taping women in various states of undress prior to their examinations. Very disproportionately, the victims of these assaults, because that's what they are, were immigrant women. And so what I'm trying to say here, not only are these self-regulators in these particular instances rather ineffective, but their self-stated purpose is to educate, right? And so systemic reform doesn't really factor in to the matrix, which is problematic, particularly when we're faced with this legacy of eugenics that is extremely harmful. So, you know, if we kind of boomerang back a little bit, what's wrong with criminal law, aside from all the things that we already said? Well, assaults of a sexual nature generally go under-reported, if they're reported at all. And when you're talking about such a power indifference, even more so. Barwin went through quite a few many patients, and so did Nathong before this was actually reported. There's an inherent trust in that relationship for good reason, because it needs to be there. We're talking about some really important considerations of health, our well-being, our life. We have to be able to trust our physicians. And frankly, this is not the seminar in this lecture, and the work that we do is not an indictment of any medical profession, so to speak. It is an indictment of the conduct that leads to great harm and suffering. And that conduct is present in that profession and in many others. So what other trappings exist in the deficiencies of criminal law? Well, I would say that police responsiveness and investigations suffer evidence to institutional discrimination and racism. And that came out very clearly in the National Inquiry on Missing and Murdered Indigenous Women's Final Report. I mean, this is not just something that people are picking up and saying, gee, we think there might be a problem with this over here. There's a National Inquiry about this. An entire national inquiry. So we know it's a problem. We also have to consider, technically speaking, that prosecution is hamstrung by law enforcement's deficiencies impacting prosecutorial discretion. So that means if the cops don't do their job, so I'm going to put this into very simple terms, accessible terms. If the cops don't do their job, they don't get their evidence, they don't lay their information, then prosecution can prosecute. And once they do get that information, they still have prosecutorial discretion to exercise. So they may or may not decide to prosecute. And the one thing we do know in that opaque process is that mainly what they're trying to figure out is whether there's a likelihood of conviction. So if the evidence is deficient, if they know that the accused will put up a powerful defense with essentially endless resources, and if they think that there's going to be an impact on the likelihood of conviction, then they won't even charge. They won't prosecute. So quite apart from the conviction and sentencing matrix is all the things that happened on the front end or rather don't happen. So it makes it unlikely, and that's probably the reason it's never happened. And we also have to think about the bias that needs you to keep the process. A really good example of that bias, although there are a few. And in the name of the case, it's escaping me now. It's not the victim of Cindy Gladue. What is the name? Barton, thank you. So in early Barton, he was tried, murdered, he's acquitted, went all the way up to the Supreme Court. Court transcripts demonstrated and fair trigger warning here that the deceased had been referred to over 16 times as a native prostitute, which not only is roundly unnecessary, may not even be true. And even if it were, why does it matter? It's irrelevant. There are not categories of entitlement to dignity and humanity within section seven. There are not worthy victims and less worthy victims. A human life is a human life. It presents as it does for many, many reasons that are complex, that no criminal trial can ever hope to unearth. But the fact of the matter is, is this is how the Crown and the Defense Council were referring to the victim. And what makes matters worse is that the Crown had actually walked in and presented as evidence a part of the victim's anatomy, her intimate anatomy, unbeknownst to her family. And an absolute contravention of death rates and and maintaining the integrity of the body, essentially resulting in its desecration, something that I've never heard of or seen and was absolutely shocked when I did. So that bias and the adjudicative criminal process, including its actors, is the problem. It's a problem. If we if we think about, you know, the source of all of this and we were discussing eugenics and its ideology, what is it really well, colonization problem in a lot of ways. And, you know, medical colonialism has been written about by Dr. Sneer Hussain rather extensively. He talks about a culture that is rather intransigent, doesn't doesn't really want to be self aware or examine itself. And he did a good job of writing about that. He also talked about the need to examine policies that result and extremely disparate results that are very harmful. So one of them had to do with when indigenous children were flown in from the north using Quebec. So we're flown in from the north, either at Caloed or northern Quebec. They'd be brought in, but they wouldn't be accompanied by their parents. That was not allowed. Not allowed why no one really knows. Karen Lawson wrote an excellent article about invisible policies and had to do with the evacuation of pregnant women in the north to the south to have children. And she said, you know, there may be some of these policies that are stated and then there are others that are not, but they are nonetheless policies. And those policies require resources, a measure of process written or not, consistency and impact. And where you can find those elements together, what you have is an invisible policy. That's what Karen says. I should say Dr. Walford. Brilliant woman, indigenous, midwife, I think you may know her, just all around brilliant. And so those invisible policies, ones you can't even find. You know, they do track that delayed personhood that we were talking about a little bit earlier. And frankly, they're very effective in tapping around in that delay personhood and playing up and weaponizing those biases, those inefficiencies, resulting in a complete deficit of access to justice. So what's the solution? I mean, I don't know. I have, I really have no idea. But what I do know is that the existing remedies that we have are rather ineffective. And that where you have a systemic problem, which everyone seems to agree with, and you require a systemic solution, that doesn't seem like rocket science. Right? So what tool, what instrument in the law allows us to do that? Section 24 does. Try to remedies allows us to do that. Courts can use rather extensive discretion to fashion remedies that are appropriate to any particular circumstance. And in this case, where you have ample examples across the country, where you have unequivocal and unassailable reasoning associated with why this is wrong, not only from the international community, but in spits and spats and domestic law. But yet still, we're not attacking it, we're not resolving it. My argument in this thesis is that to uphold the inherent dignity of birthing indigenous women and life givers, there is no choice but to look at a charter remedy. Now, does the charter apply to physicians? Good question. Sometimes it applies to hospitals, it depends on the line for what. It applies to government action, that much more. Government action, government actors, and government policy. Our physicians, government actors, many cases have said that they're not. Some have said that they kind of are, depending on the circumstances. So the case law on that issue is anything but crystal clear. But what we do know is that at least physicians are embedded in a government service. There's case law there to suggest that every single service that they provide is paid for by public funds. Delivery of maternal health services is essentially a government activity because it is a service that the government has decided that they're going to provide. So it stands apart in that way. One of the biggest defenses that we hear is, hey, well sterilization is a matter of clinical discretion. It's not. It's simply not. I don't see how clinical discretion comes into that discussion in any way, shape, or form. And if we look at situations wherein snap decisions have to be made, then yes, clinical discretion comes into the matrix. For sure. This isn't one of them. If we think about what kind of promise Section 24 may offer, I mean it's a really broad remedy. And I don't know if all of you have taken your charter class yet or your constitutional law classes yet, but she's a big one. Section 24 is a big one. It allows course to do quite a few things to fix a problem. It even allows them to maintain jurisdiction over the implementation and authorization of their order to have parties report before the court on what's happening to make sure that these charter rights are upheld and that their infringement is absolutely minimized. And so the distance between where we stand in accessing Section 24 is probably rather disparate and elongated. But it doesn't mean that it doesn't stand as the most promising remedy for this specific problem. We're not talking about extending the charter to every single action a physician undertakes in the course of their work, but where there's a stubborn systemic issue that is robbing women of such an important function in their own estimation and wreaking havoc on their self-concept as women, and ostensibly by definition resulting in the aggregate in a measure of genocide, what is the other option? That's what we have. So the proposition is that's what we should do. So I hope that was helpful. And I don't know if I have any time left. Maybe I'm wrong. I don't know, but I feel like, you know, so I'll start us off. So from the perspective of the clinical community, one of the concerns that the clinical community have with any real special restrictions on sterilization are that it creates an undue burden on patients who may want, for instance, a patient who has to fly him for their delivery. And so if, as you've suggested, consent is a process over time, and that's the only way to ensure these facets of consent are upheld, while somebody's flying in to have their birth and they're not going to be able to come back to have medical care for who knows when, at what expense, or at what inconvenience, then they should be able to say and have it done that they get their tool. And that's kind of the most obvious example that there would be all kind of things like that where it creates, or whatever reason, a problem. Another example would be somebody wants to be able to do this, the first thing person wants to be able to do this, without the involvement or knowledge of their partner. And if things take too long and there's too many steps, then they're going to end up flying again, et cetera, et cetera. So when we create undue burden on the patients, how are we going to prevent that harm? And certainly there is a sizable harm from having to have unintended or unwanted pregnancy. So I guess that's the what do we do with this concern? Well, we obviously, as clinicians, want to uphold patient consent, but don't want to be in a situation where we are denying. No, that's a very good question, very legitimate and not the first time it's come up. I can say that in my practice, the people that I hear from and what has happened relates succinctly and clearly to women who did not want this and got it. And none of them flew in from anywhere. They were located in the place that they were. And I think that one of the things that people are starting to do in adopting different procedures and guidelines associated with consent that I think is very wide, so very simple, but very wise, is that when the conversation commences, which it can start, we need a pair, right? Who brought it up? That's an important piece. It goes to voluntariness. And I can tell you that Dr. Anjali Malhotra out of the EBC Health Authority is doing some phenomenal work on crafting some new forms and some new processes associated with who brings this up, which results in a fundamentally different conversation. I mean, I've not heard from a single woman who wanted to have her tube site and wasn't able to. That just hasn't come across my desk or my phone. It doesn't mean it doesn't happen, surely it does. But what we are faced with is the other side of that coin, right? And if we examine the harm associated with a woman not being able to access a reproductive treatment or procedure that she would like to have and that consent is treated casually because of any kind of aggravating or attenuating circumstances. Of course, the risk of regret is greater, right? And so I think that there's nothing standing in the way of nursing stations in these communities, telephone conversations, Zoom appointments, conversations with midwives, et cetera, whoever this woman is choosing to care for her because someone's flying her out, right? To have this discussion. And that's where the process happens, right? It is far too easy to, and I'm not suggesting that's what's happening, but it's far too easy to design a process for the very few that have not come to the surface than to address the thrust of the problem that has, right? And I can be, I have family members, they're Indigenous women, they've had tubal ligations, they had no problems getting them. So I'm sure that this problem could come up, but if it comes up because of a rigid, or I would even say just a lawful consent framework and guideline, well, so be it, right? There are other options then. What the proposition that we're saying is that if tubal ligation is brought up in the throes of labor for the first time, whether by the woman or anyone else, there's no capacity to make that decision at that juncture. But if it's discussed prior, I mean, it's certainly up to the woman to make that decision. This is, and our clients have been very clear about that. For them, this was important for them. For others, it's not. It's not a question of imposing that importance on everybody else and saying, you know, limit access to abortion. This is not a pro-life discussion. It's very much a pro-choice discussion. And that coin has a few dimensions and a few sides. Before we interrupt you, I'm going to read out this question from anonymous attendees. Thank you for your presentation. It seems to me that there are or have been many roadblocks put in the way of getting abortions over time. Could one put such roadblocks in the way of providing sterilization? I imagine that most slash all of these are done in a health facility. Would it make sense to have a series of steps that are legislated by each province? Somehow it seems that it might take less time than embedding in the chart. I mean, that could be a result of section 24 remedies. But I mean, the courts can't tell provinces what to legislate and what not to legislate. That won't really work. Again, it's not that there's anything wrong with the existing legal framework. It's rather effective. It's pretty clear. It's very precise. I think it has more to do with applying and implementing that framework. Between its existence and its stated nature and making it effective, and I mean no disrespect when I say this, I don't think there should be roadblocks for anyone, any woman who wants any reproductive care option. Roadblocks are certainly not the answer in my respectful view. Information, though, would be really good. Voluntaryness, getting to the core of that voluntariness, ensuring that there is utmost capacity in the circumstances, and making sure that the procedure is understood and clear is also fundamental. Again, I just reiterated the test and walk. It's there. It's not hard in my respectful view to tease it out into a guideline that will result in a greater incidence of consensual treatment and procedures, whichever way those swing. Is that any answer? What's your question, Joel? Sure. One question goes to the evidence. I really want to engage with your profound points about the systemic discrimination and genocide that's expressed through these individualized practices. My first question goes to evidence. Are there, in your experience, or understanding particular sites or contexts or places where these forced sterilization is happening, in terms of how your understanding of the evidence sits right now? I say that as someone who, in my own very, very limited experience where I have encountered people talking about forced sterilization or coerced, and forced feeling coerced is people in heavily institutionalized settings, like in a correctional setting. I'm just curious about where the evidence is coming from, and I'm thinking particularly about Indigenous women's experience of forced sterilization. So that's the evidence question. And then just a quick follow-up on the doctrine question. So following your invitation to think about how law can be used as a tool to promote reproductive dignity, you've been focusing very valuably on Section 7 and the right to bodily timing and choice. But of course, Section 15 is lurking in the background as you speak, systemic discrimination, and have us think about the structures, both historical and ongoing, that not necessarily incentivize but make possible this disproportionate application that you've been talking about with Indigenous women's experiences centered. So is that something that you think might help bridge the problem and the remedies, i.e., a doctrinal way of expressing the problem that goes beyond the Section 7 to, and we know there's lots of writing on this, this intersection or interaction of 7 and 15, so that we see the individual harm in its structural context in the way you can make your arguments with 7 and 15 working together. So I ask that as a doctrinal piece, but of course the purpose for asking it, it's not because we're just interested in talking about doctrine, it's like, could that lead to a remedy as responsive to the systems and not just the individual, like more likely? Absolutely. I mean, thank you for raising those questions. You know, I think immediately of Kim Crenshaw and Kimberly Crenshaw and how just wow, you know, she coined that term intersectionality, she brought it home, she explained what it really meant, and I have a whole sub-chapter on that in the thesis, I just kind of stick with it, maybe I should now, but it's, yes, it's absolutely fundamental, so I'll answer the second question before the first one. It is fundamental. Understanding things in context is always fundamental, right? Usually when I do these talks, I really emphasize on Section 7 because it brings the problem and the challenge and the pain and the harm to a human place, right? There's already a lot of mainstream discussion now, it wasn't like this 10 years ago, but now about systemic deficiencies, and I think that that's wonderful and it's important, but these systemic deficiencies impact and affect in many cases irreparably people. And these people, these humans, these women have the right to put their dignity first, right? And so through Section 7, we can kind of achieve that. And it's an extremely persuasive argument to say, do you want this for your daughter? You want this for your mom or your sister? If you don't, if it's not tolerable for them, it shouldn't be that, right? So by humanizing the issue, there's a countercurrent to the inherent dehumanization of that overhang of eugenics ideology, right? So Section 15, is it relevant for sure? It's pled throughout is, you know, our systemic issues and intersectionality, sitting right at the crux of this problem without a doubt. These human violations are occurring against the backdrop and the tapestry of systems that were structured, like my husband says, to achieve exactly what they are achieving, right? So although we're conscious of that, we understand, our clients understand, there's very little they can do to pick that structure apart, but what they can do is tell their stories, center their lived experience, and demand human dignity. And so that's why there's a huge emphasis on Section 7. And thankfully, society is doing some work on the Section 15 point, which seems to be accepted. At this point, you don't need to advance evidence, and this will go into your next question. There's no need to advance evidence to demonstrate that there's systemic racism or sexism. Courts actually have to take judicial notice of that now. That's a leap and a bound compared to what it used to be before. It didn't seem to come to the surface in Sharma. I don't know if you've read that decision. I think the majority might have missed the memo. But there it is. So that's one of the reasons that there's a huge emphasis on that is that centering the lived experience of these women and humanizing is really fundamental, I think, to achieving a measure of systemic change that is required here. And you're absolutely right. The intersectionality cannot be ignored. It's contextual. It permeates all components of this issue without a doubt. In terms of evidence, and I mean, I, you know, this is only a sample based on the patterns that I've seen. There's no, there's nothing to suggest that the two to 300 women that I've spoken with are necessarily some kind of categorized representation of the estimated 12,000 women who have experienced this across the country. But if it is, and it seems that from the Senate reports, there's a measure of agreement. If it is, this practice seems to be more, these human rights violations, I should say, seem to be more prevalent in areas. And this won't be surprised to anybody where the population is more densely indigenous urban areas. So that seems to be the pattern and the trend at this moment. Also within the context of this clinical reality. So there, this has been carved out as a very unique atrocity, but sits within a domain of obstetric violence that I think we're increasingly conscious of. And that certainly we have lots of American literature to be demonstrated as a very racist application of such violence. Just thinking about this, how will this or could this or should this be different from an unwanted section, an unwanted piece, an unwanted a wrong and these other physical, genital violations that occur in the chaotic context of the obstetrical speed and why is or is this different? Well, I mean, just on the surface of it, all of those things should, you know, I think there's a recent case coming out of Spain that goes to the appease question. Apologies, there is there is a recent case out of Spain that goes to the Pseudomy question. And that was the unistetric violence. Not only was it unwanted, but apparently it was also unnecessary. So I think that when we look at reproductive health care in the context of that chaotic or, you know, super amazing process, procedures and treatments, I think have to be put into the categories that they belong, right? And so when we're talking about sterilization, we're talking about absolute permanent consequences with, you know, pretty, pretty little chance of reversal. It goes to a future capacity of a woman to have children, right? So all of the stakes of that may not be as roundly explained as they should be. You know, I have never heard of a physician walking up to a man standing next to a birthing partner saying it's time for a vasectomy now. I've never seen that. Right? Because there's an inherent human dignity associated with understanding that that may not be the best time. And, you know, that's an important decision with permanent consequences on fertility. The other procedures just as important go to the birthing experience. They also have clinical facets, right? I don't think sterilization has an immediate clinical facet. Whereas this, the other ones that you mentioned do. And so I think that's where the distinction lies. And sterilization, having been medically classified against, this is not my idea. This comes from people who know a lot more about this than I do, have said it's not emergent, it's not therapeutic, and it's non-essential. So those things, if they are true, and there's no reason to believe that they are not, in some cases, cesarean sections are emergent. And the other things that you mentioned, yes or no, you know, I've only been present for three births, my kids and my own, but I can't remember the first one. So the stakes are quite a bit different. The consequences in terms of permanence, I think, are different. The impact on the self-concept of a woman is quite a bit different. And what's at stake in terms of the health and well-being of mom and baby is quite a bit different. So I think that that's what distinguishes those categories of procedures in law. I mean, I wouldn't know the first thing about clinical anything. So I rely on Martha for that. Just have a question about further challenges. How do you like structure the ideal further challenge to result in effective practice? So maybe it is sketching out for us what those particular informalities would look like in your ideal further challenge. Well, one thing I should say is that there are some parts of this thesis that are embargoed until there's resolution. So I can't go in too much detail, but what I can tell you is that Section 24 generally is extremely broad, where it can take hold that discretion to there's no greater discretion to a court in fashion and remedy than I think Section 24. Now, do we trust the court necessarily? Sorry to say the unpopular thing and maybe something I believe there's not supposed to say, but do we trust the court to fashion a remedy that will be effective and keep women safe? I mean, that'll depend on who you ask, I suppose. But what I can tell you is that their discretion is tremendous, right? That's just the very nature of Section 24 is that it offers really broad discretion to the court to fashion a remedy that is effective. Now, you know, what could that charter challenge look like? I can't talk about that. I'll just have to leave that there. They're ongoing lawsuits, they're ongoing. All right. So we're going to point to the other end of the charter challenge technique, which is application of the charter, which you spoke a little bit to, but it is in Japanese, it is a hurdle, right? The Section 32 application of the charter issue, you're talking about like, how do you actually capture this conduct in a charter challenge through showing government action? I know you referred to that in part, but I imagine that there's a lot of real careful arranging of a few presidents to try and make that pitch. And so two things. One is, might that be easier and easier argument to make in some provinces than others? And I'm thinking of provinces that have health care consent laws, so they have legislation like in Ontario that actually regulates stuff, like it takes the common law and codified it, such that you can say that the doctor in, you know, blah, blah, blah, kind of exercising their power does somehow in this frame of the state, frame of this abstained action, maybe easier than a place like Knobsbosha where we don't have health care consent legislation, but sort of at question one, but question two is kind of like, well, if that didn't work, and I'm not saying it doesn't, because I'm very interested in it working, I think there's a lot of, but if that didn't work, what about statutory human rights as an alternative? Because yes, you lose your Section 7 stuff, but you've got a systemic discrimination, you don't need to have a state factor. Mm-hmm. I mean, yeah, there's definitely an entire human rights framework that may be pursued. I don't think that it would result, I mean, just if we even look at the most recent example of the First Nations Child Care and Society case, I mean, if there was ever something that was simple, right, and that goes to the well-being of children, right, in terms of principle, like it's not a difficult concept to grasp, that there was considerable underfunding that was delivered, right, and they have had some serious challenges that they should not have had. In this case, we would have to demonstrate what the baseline is, what the differential treatment is, and one of the issues there going back to your point of evidence is that who's the custodian of all that information and that data, if they collect it, the state, if it can even be released. And that's one of the reasons I think that the international community, including the Inter-American community, has encouraged Canada to take their data responsibilities in terms of health more seriously, because you cannot improve that, which you do not measure. And they most certainly do very little of that. And we can even see recently, this is just a publicly reported example. I don't know how accurate that reporting was, though I have no reason to question it. Upon a recent meeting, I think it was between the Prime Minister and the Premier's on the issue of healthcare and healthcare transfers, the Canadian proposition was we'll increase your healthcare transfers if you start measuring your data better and providing it to us. Some provinces said, no, why? It seems to me like it should all, it doesn't seem like a terribly complex task to undertake time consuming perhaps, but it is valuable in the end to really understand. For example, I mean in Saskatchewan, and this is something that we pushed for very hard, on the face of Saskatchewan health cards, you have an embossed R, and that R suggests that the holder doesn't suggest it tells anyone looking at it, the holder of that card is a registered status Indian. And so when you ask Saskatchewan, and you say, hey, I'd like to know how many artists have been sterilized versus how many non-arists have been sterilized? Oh, we don't know. Who's indigenous? We don't even know who's Aboriginal. Well, if only you had a race space indicator on your health card. And you do, right? It doesn't capture everyone, but it captures a significant portion. So there is an impunity, and there is a lack of willingness to be transparent in that way. Right? And I think that that's where it becomes difficult to talk about charting, mapping, that systemic racism to show the disproportionality. Right? So those hurdles are very real, and then it becomes more of a question of authority, power, possession, and control, custody, than it does law, principle, dignity, and other things that should be the dog, wag, and the tail, not the other way around. In my view. From the question on the statutory, you know, like some provinces have a statutory, is that something you think? Maybe. Yeah, I mean, at the end of the day, you have a procedure, and then the question becomes, is that it all, it depends also on on the particular provinces in terms of what their public health looks like, or what their, you know, how how physicians receive privileges, how they don't, how they can be sanctioned or not, or, you know, there's a lot of different landscapes. And so I think that you are right. I think that the answer may vary, depending on the province, and probably is like we do. Thank you. I'm going to close up. Sorry for that time. Thank you so much. Thank you. That was amazing. Thank everybody for coming and for everybody who's online. Oh, and I just want to remind everybody about the next seminar, which isn't until the winter, online only. Again, that's Friday, January 20th at noon, as usual, decarcerating disability through the courts, deinstitutionalization, and prison abolition with Liat and Moish. All right. Thank you, everybody. Just gonna make sure. Thank you.