Canadian Lawyer

May 2020

The most widely read magazine for Canadian lawyers

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UPFRONT 8 www.canadianlawyermag.com OTTAWA UPDATE THE FEDERAL GOVERNMENT tabled legislation in March that proposes to crimi- nalize aspects of so-called conversion therapy. Conversion therapy is a practice that seeks to change an individual's sexual orientation to heterosexual, to repress or reduce non- heterosexual attraction or sexual behaviours or to change an individual's gender identity to match their physical sex. The bill would create five new hybrid offences that would prohibit: causing a minor to undergo conversion therapy; removing a minor from Canada to undergo conversion therapy abroad; causing a person to undergo conversion therapy against their will; profiting from providing conversion therapy; and adver- tising an offer to provide conversion therapy. Professional associations have denounced conversion therapy as a practice that is harm- Legislation would ban 'conversion therapy' "There's no doubt that provinces have the authority to act, and some have," he says, not- ing that Ontario, for example, has enacted measures to restrict conversion therapy. But the federal government had a role to play, and it has historically used its criminal law power to protect Canadians from fraudulent medi- cal practices, he adds, comparing conversion therapy to "quackery" and worse than snake oil because of the harm it causes. Only Malta and Ecuador have legislation banning conversion therapy, although, in the United States, 20 states already have bans on conversion therapy, Elliott says. In announcing the new bill, Minister of Justice and Attorney General of Canada David Lametti termed conversion therapy "a devas- tating practice." Noting that several provinces had already placed restrictions on the prac- tice, Lametti expressed his interest in continu- ing to collaborate with provinces and territo- ries to ban the practice. The bill would also authorize courts to order the seizure of conversion therapy adver- tisements or their removal from computer systems or the internet. A new federal government bill would introduce five new hybrid offences to the Criminal Code ful to LGBTQ2 persons, in particular minors, and advocates have long urged for the practice to be banned. "I'm very pleased that the government took this step," says Douglas Elliott, a litigator at Cambridge LLP based in Elliot Lake, Ont., who is known for his work on constitutional cases such as same-sex marriage and who won the largest Canadian class action trial judg- ment in an action brought by a group of gay and lesbian Canadians seeking CPP survivor's pensions against the federal government. "My community had pressed the govern- ment on this issue back in 2018," Elliott told Canadian Lawyer. "And the federal govern- ment response then was that this was a pro- vincial matter and they were not going to intervene. As a constitutional lawyer, I found that proposition troubling. NEWS BRIEFS Jordan ceilings don't apply to deliberation time The right to be tried within a reasonable time guaranteed by the Charter applies to a judge's verdict deliberation time but is not included in presumptive ceilings set in the 2016 Jordan decision, the Supreme Court of Canada ruled in R. v. K.G.K. If the accused charges that the deliberation time is unreasonable, the test should be whether the deliberation time was "markedly longer than the deliberations reasonably should have taken in all of the circumstances," Justice Michael Moldaver wrote for the court. Momentary speeding departs from reasonable standard of care In R. v. Chung, the SCC found a judge was wrong in finding that momentary excessive speeding on its own could not establish mens rea in a vehicular accident case that left a motorist dead. The decision will "make it easier for the Crown to prove dangerous driving when the only discernible misconduct is excessive speeding," said lawyer Richard Fowler. The court clarified that "even grossly excessive speed may not establish a marked departure from the standard of care." "I'm glad that [the government has] found the courage to push this forward now." Douglas Elliott, Cambridge LLP

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