De Jure and De Facto Discrimination: Sterilization and Eugenics in Canada

Contributed by Olivia Wawin

Introduction

In 2018, a class action lawsuit was brought against the Saskatchewan provincial health system after at least 60 Indigenous women came forward alleging coercion or being forced into consenting to undergo tubal ligation, a form of permanent sterilization whereby a woman’s fallopian tubes are cut or closed, ensuring that she cannot conceive again after giving birth. Since then, the class action has grown to include over 100 women from multiple provinces, who have reported similar allegations occurring as recently as 2018, for example in Manitoba.

Canada’s provincial healthcare systems have a history tainted by a lack of full and informed consent to tubal ligation procedures dating back to the early 20th century, often with the aim of restricting population growth in “undesirable” groups such as people with disabilities, certain immigrants, Indigenous peoples, and people living in poverty. Such practices were permitted under legislation that has since been repealed, but have nonetheless persisted beyond the time that sterilization without consent was made illegal, leading to a de facto use of forced sterilizations which continue to this day.


Women of colour, Indigenous women, and disabled women have allegedly been sterilized in Canadian hospitals without providing informed consent in recent years. || (Source: pixabay // Pexels)

Background: History of Eugenics in Canada

The control of certain populations through forced sterilization is a form of eugenics, which was first used in 1883 by British scientist Francis Galton, to describe the theory that undesirable traits, such as mental and physical afflictions, could be bred out of the human race through “selective breeding”. In Canada, eugenics was considered “modern, scientific, and respectable” in the early 20th century among politicians, doctors, and other highly regarded experts.

Through the passage of the Gradual Civilization Act in 1857 and the Indian Act in 1876, Canada had already controlled the marriage and reproduction of Indigenous peoples when theories of eugenics started to become widespread in the early 1900s. Moreover, an influx of immigrants from Eastern and Southern Europe, following Canada’s more permissive immigration policy that aimed to settle the West, gave rise to anxiety about the proliferation of “feeblemindedness” in the general population. Such theories did find some opposition by French Catholics in Quebec, as the English Protestant experts who espoused them supported measures such as birth control and sterilization. However, sterilization for the purpose of perpetuating eugenic ideologies was favoured in Western Canada, and was codified in both Alberta and British Columbia.

Codification of Forced Sterilization in the Early 20th Century

The Sexual Sterilization Act of Alberta was passed in 1928, following widespread anxiety that mental defects and criminal activity were on the rise due to increased immigration into the province. The Act gave a “Eugenics Board”, composed of two medical practitioners and two “persons other than medical practitioners appointed by the Lieutenant Governor in Council”, the ability to authorize the sterilization of recently released mental patients with their consent or that of their guardian, although this requirement was removed in 1937. The Albertan government sanctioned the sterilization of approximately 2,800 people under the Act until it was repealed in 1972. Moreover, between 1969 and 1972, a quarter of said sterilizations were performed on Indigenous women who were overrepresented due to their increased likelihood of being branded as “mentally defective”, a theory rooted in racism towards Indigenous peoples.

British Columbia followed Alberta’s lead shortly thereafter, passing An Act Respecting Sexual Sterilizationin 1933 and putting a Eugenics Board in place to review cases involving institutionalized patients. However, the British Columbia Act had a narrower scope than that of Alberta, resulting in an estimated 200 to 400 sterilizations before it was repealed in 1973. Similar legislation had been drafted in other provinces around the same time as Alberta and British Columbia, but ultimately failed due to opposition, most notably by Catholic groups. However, it was not until 1986 that the right to consent to sterilization for all Canadians, including “mentally incompetent” individuals, was affirmed by the Supreme Court in the landmark E. (Mrs.) v. Eve case.  

In the years following these events, multiple lawsuits were filed against provincial health authorities in both Alberta and British Columbia. The most well-known case is that of Leilani Muir, who as a child was deemed “mentally defective”, institutionalized, and sterilized without her knowledge pursuant to Alberta’s Sexual Sterilization Act. Upon taking an IQ test in her adulthood that proved that she was of normal intelligence, she won a lawsuit in 1996 against the Albertan government for wrongful sterilization, leading to a formal apology and compensation to her and hundreds of others who had been similarly violated as a result of the Act.  


The theory of eugenics has historically been used in Canada to justify the sterilization of certain groups without consent. || (Source: pixabay // 1662222)

Contemporary Eugenics

Despite all legislation allowing sterilization without consent having been repealed in Canada, there is nonetheless evidence demonstrating the continuation of such practices. For example, forced sterilization of Indigenous peoples occurred in “Indian hospitals”, which operated across Canada. Even after the Canadian Charter of Rights and Freedoms came into force, which guarantees “the right to life, liberty, and security of the person” in section 7, de facto eugenics is still allegedly being practiced in Canada’s hospitals. Alberta, for example, has faced allegations of forced sterilizations of Indigenous women that occurred years after the Sexual Sterilization Act was repealed. Moreover, the aforementioned Saskatchewan lawsuit details similar instances of forced sterilization of Indigenous women in recent years.

Notably, a recent Senate report on forced and coerced sterilizations in Canada since 2000 found that the practice persists in hospitals, with marginalized women being particularly vulnerable. For instance, allegations of a lack of informed consent to sterilization procedures included accounts of Indigenous women being coerced by medical staff who made threatening remarks about child custody, not being adequately educated on the permanence of the procedure, being asked for consent shortly after labour or while the effects of an epidural were wearing off, and not being made aware that they could decline the procedure. A Haitian woman from Montreal has also filed a complaint alleging she was not informed of the medical implications of the tubal ligation that she verbally consented to right before undergoing an emergency C-section in 2018. Her story has been widely publicised in Quebec after Radio-Canada interviewed her  and other victims of coerced sterilization this past September.

Conclusion: Where Do We Go from Here?

The Senate report concluded with two recommendations: that the federal government respond to the report’s findings as soon as possible, and that a second study focusing on survivors’ testimonies be completed by Parliament to find solutions to stop the practice of forced sterilizations. This report was also completed without the participation of the Quebec government, as it refused to participate in 2018 when the Senate’s research began (although Premier Legault has condemned coerced sterilizations since the Radio-Canada report). To remedy this gap in the literature, the Assembly of First Nations of Quebec and Labrador, in partnership with the University of Quebec in Abitibi-Témiscamingue, has launched a new research inquiry on forced sterilizations, and is currently collecting testimonials from First Nations and Inuit women in Quebec.

More broadly, it is argued that addressing systemic discrimination as the root cause of forced and coerced sterilizations is essential to eradicating such practices. Rather than finding that women’s individual rights were violated in certain exceptional instances, it is imperative that courts and governments recognize the existence of systemic discrimination, particularly against women of colour and women with disabilities, which in turn has resulted in a pattern of medical victimization. In the words of Alisa Lombard, lead counsel in the case against the Saskatchewan government: “whatever Canada has done is wholly inadequate and really not measured to the seriousness of the violations that are at stake”.

Olivia Wawin is a Junior Online Editor with the McGill Journal of Law and Health. She is currently a first-year student at McGill University’s Faculty of Law. Prior to beginning law school, she completed a Bachelor of Sociology and Economics at McGill University. Her interests include maternal and sexual health, international development, and human rights.

What is the Future of the “Psychedelic Renaissance” in Canada?

Contributed by Hilary Ball

Introduction

In summer 2020, almost 15,000 Canadians signed an online petition calling for the decriminalization of plants and fungi with psychoactive properties. Backed by Decriminalize Nature Canada, an initiative of the Canadian Psychedelic Association, Petition e-2534 was presented to the House of Commons by Green Party Member of Parliament Paul Manly on September 30, 2020. On their website, Decriminalize Nature emphasizes that the goal of the petition is not legalization—they do not seek to permit recreational use of these organisms or to authorize retail marketing. Instead, by advocating for decriminalization, they aim to reduce the risk of criminal sanction for sick people seeking natural remedies for a range of mental health conditions, and for healthy people seeking “greater wholeness, purpose and connection.” The Canadian government posted its official response to the petition in November 2020. Pointing to existing legal mechanisms that allow access to controlled substances through exemptions, the government ultimately concluded that “no amendments to the current legislation or regulations are required.”

The petition appeared in the context of what has become known as the “psychedelic renaissance”: a recent upsurge of scientific and cultural interest in the therapeutic and spiritual benefits of psychedelics. Following decades of suppression and prohibition, clinical research out of institutions such as John Hopkins University, New York University, the University of California Los Angeles, the University of British Columbia, and the University of Toronto Mississauga has begun to suggest that psychedelics may have a positive impact a variety of treatment-resistant mental health conditions; psilocybin and MDMA, in particular, have shown remarkable promise in treating addiction, depression, and post-traumatic stress disorder. Since 2020, dozens of psychedelics biotechnology companies have emerged in Canada, generating optimism among investors about what could be the next cannabis industry. Across the border, moreover, these drugs seem to be shedding some political stigma: both Oregon and D.C. decriminalized psilocybin in 2020, and California may be next to do so. Despite the momentum building around these substances, however, it remains unclear what the future of the psychedelic renaissance will look like in Canada. Is legislative and regulatory reform on the horizon, and, if so, what will it look like? Alternatively, should the government’s response to Petition e-2534 be interpreted as a sign that change will occur slowly or not at all?

Background on psychedelics

The word “psychedelic,” which means “mind manifesting,” was coined in 1957 by psychiatric researcher Humphrey Osmond.Hoping to replace the negative and limiting connotations of the previously accepted term “psychotomimetic” (“psychosis mimicking”), Osmond emphasized these substances’ beneficial properties—namely, their ability to provoke “changes in thought, perception, mood, and sometimes posture.” Today, the so-called classic psychedelics are understood to include LSD, mescaline, psilocybin, and DMT. In addition, MDMA and ketamine are often referred to as psychedelics and can produce similar mental states, despite operating differently in the brain. Psychedelic plants have a rich history of use in religious rituals and healing practices, and cultures across the world have long sought out “nonordinary states of consciousness” to connect with the divine and the mystical. A mystical experience, moreover, is also characteristic of therapeutic use of these drugs, and American science journalist Michael Pollan has described modern psychedelics research as a meeting point between science and spirituality.

Yet widespread recognition of these drugs as spiritually or psychologically beneficial has by no means been consistent over the last 80 years. Initially, the discovery of LSD in 1938 gave rise to optimism and enthusiasm about psychedelics among researchers like Osmond, whose early studies of LSD as a treatment for alcoholism showed promising results. By the mid-1960s, however, this new drug had escaped the laboratory and found its way into the hands of young people, where it became associated with hippie counterculture, the Summer of Love, and the antiwar movement. An era of “War on Drugs” prohibitionist policies ensued, viewed by many as a politically motivated response to the perceived threat psychedelics posed to social order. In the words of Roland Griffiths, now one of the psychedelic renaissance’s leading researchers, “there is so much authority that comes out of the primary mystical experience that it can be threatening to existing hierarchical structures” (quoted in Pollan).


The word “psychedelic,” which means “mind manifesting,” was coined in 1957 by psychiatric researcher Humphrey Osmond. || (Source: pixabay // Gerd Altmann)

Current regulatory landscape

In Canada, psychedelics are controlled substances under the Controlled Drugs and Substances Act (CDSA), in compliance with three United Nations drug conventions. All controlled substances are deemed to have “higher-than-average potential for abuse and addiction” and, as such, their possession, sale, import, export, and production are prohibited. Specific substances are listed in four “schedules” in ascending order of perceived dangerousness. As Schedule I drugs, MDMA and ketamine are associated with the most severe level of penalties and, as Schedule III drugs, the classic psychedelics are subject to the third most severe level. However, prohibition under the CDSA is not absolute, and s. 56 allows the Minister of Health a broad discretionary power to grant exemptions for scientific purposes, or if otherwise in the public interest.

Notably, the number of s. 56 exemptions granted for psychedelics has dramatically increased in recent years. In June 2017, for instance, the Santo Daime Church in Montreal received permission under the public interest criteria to legally import and serve ayahuasca, a plant-based tea containing DMT, as part of their ceremonies. Following this victory, several other ayahuasca churches have also acquired s. 56 exemptions from Health Canada. In August 2020, moreover four Canadians with terminal cancer were granted exemptions to access palliative psilocybin therapy with the help of the non-profit organization TheraPsil, and dozens more have since followed in their footsteps. In December 2020, TheraPsil announced that 17 healthcare workers had also been approved to use psilocybin as part of their professional training, a number that has subsequently increased.


In August 2020, four Canadians with terminal cancer were granted exceptions to access palliative psilocybin therapy with the help of the non-profit organization TheraPsil.|| (Source: pixabay // Michael M)

Does s.56 provide sufficient access?

Despite these successes, exemptions are granted on a case-by-case basis, and many new applicants’ requests have remained in limbo. In light of the increasing unmet demand for exemptions, TheraPsil has drafted a proposed framework for legalizing medical psilocybin based on Canada’s 2016 regulations for medical cannabis, which it submitted to Health Canada in August 2021. Whereas decriminalization simply removes criminal penalties for possession, medical legalization would create a regulatory regime so that individuals could legally obtain prescribed medical psilocybin from licensed dealers. Meanwhile, a Health Canada proposal to allow access to restricted drugs through the Special Access Program (SAP) could provide an alternative avenue for patients desperate to get their hands on psychedelics. Through amendments to the Food and Drug Regulations and the Narcotic Control Regulations, the SAP proposal would allow health practitioners to request access to restricted drugs for patients with serious conditions in the absence of other appropriate treatments.

The question of access could be crucial should the CDSA’s prohibition on psilocybin or other psychedelics invoke a Charter challenge. In 2000, for instance, the Ontario Court of Appeal in R v Parker held that the CDSA violated the epileptic defendant’s s. 7 Charter rights to liberty and security of person, as s. 56 did not provide sufficient legal access to medical marijuana. Conversely, in 2011, the Supreme Court in Canada (AG) v PHS Community Services Society found that the CDSA did not violate the s. 7 rights of the patients of a safe injection site, and favoured the combination of a prohibition alongside a power to grant exemptions. It remains to be seen whether the limited access to psychedelics provided by s. 56 sufficiently protects the s. 7 rights of those who wish to acquire it. Should exemptions continue to stall, however, TheraPsil has made clear that a lawsuit could be imminent.

Conclusion: Prospects for legal recreational use

Although research suggests that psychedelics are usually neither addictive nor physiologically dangerous, the psychological experience induced by a large dose is not without risk. Thus, even some proponents of legalization are trepidatious about releasing these drugs from the protective rituals of the religious or therapeutic context. In fact, psychedelic advocates from across the spectrum of scientific and spiritual approaches have recommended establishing clear ethical guidelines, professional training standards, and credentialing systems as these drugs enter the mainstream. Some lawyers, moreover, have even speculated that the regulatory regime for driving might be a more appropriate model for psychedelics than existing regulations for drugs like cannabis and alcohol. Under such a scheme, individuals could be licensed to consume and purchase these drugs only after successfully completing a course and examination.

Regardless, legal experts generally agree that the Canadian government is likely to approach reforms with caution, and that recreational legalization therefore remains a distant prospect. The Summer of Love has not, perhaps, been erased from the political imagination— it was, after all, rampant recreational use of psychedelics in the 1960s that precipitated the crackdown, the effects of which are still felt today. 

Hilary Ball is a Junior Online Editor with the McGill Journal of Law and Health. She is currently in her second year of the BCL/JD program at McGill University’s Faculty of Law. Before starting law school, she completed a master’s degree in English literature at the University of British Columbia.