Prohibited business bylaw development continues

Development of a proposed prohibited business bylaw that would outlaw the practice of conversion therapy in Strathmore continues, with the item scheduled to return to council sometime in May.

The proposed bylaw, which passed first reading on Feb. 17, was discussed in the April 14 town committee of the whole meeting. Geoff Person, the town’s communication manager, who is leading the bylaw’s development, fielded questions from the committee on the bylaw during this meeting.

There is support for a prohibited business bylaw in Strathmore. A survey conducted by town administration about the proposed bylaw over the start of the year had 46 respondents, of which 40 provided feedback. Of those, 31 said they supported the bylaw, one person said they were in opposition and eight provided comments only, rather than a yes or no response.

But all three people who spoke at a March 17 public hearing on the proposed bylaw said the definitions it contains are too broad, despite voicing support for some type of municipal ban on conversion therapy.

The definition of conversion therapy, in Schedule A of the bylaw, does not prohibit parents speaking to their children or priests and ministers from speaking to their congregation about gender transition, homosexuality, or other issues, said Councillor Bob Sobol. This is because the definition reads it must be a practice or treatment that is designed to change.

“Nothing stops anybody from speaking about this – you have to have an actual process, and it has to be an effort to go out and change people’s gender identity,” said Sobol.

But Councillor Jason Montgomery said he thinks the definition is indeed overly broad, and proposed other definitions – such as those used by provincial professional bodies – might be considered instead.  

“I think we just need to be careful that we’re not either preventing people from getting the help they think that they need, or from putting the town in a position where we potentially could be facing lawsuits, whether or not (those) lawsuits are successful,” said Montgomery.

The City of Calgary passed a prohibited business bylaw in May 2020 on which Strathmore’s proposed bylaw is based. Person said to his knowledge there have been no tickets laid in Canada for municipal conversion therapy bylaws to date, including in Calgary.

If there have been no tickets given, there have also been no legal challenges, meaning it is unclear how Calgary’s prohibitions will perform in court, said Montgomery. “Nobody has been put in a position yet where they’ve had to defend themselves.”

In clause 5.2 of the proposed bylaw, the owner of a property is responsible for any person conducting business on their premises. There is precedent for this in provincial legislation, including the Occupiers’ Liability Act, which makes owners liable for acts occurring on their property. 

This puts onus on landlords to have conversations with their renters about the practice being banned, for them to fulfill their duty of care, explained Person.

“So having this in the bylaw isn’t a guarantee that someone is going to be handed a ticket for something that takes place on the property,” he said. “What it does is puts the onus on them to have an honest conversation with their leaser or with whomever is using that property to ensure that (it) doesn’t take place on their property.”

Montgomery suggested this clause be removed, saying it puts an unfair burden on the property owner, and creates an unnecessary risk. At second reading of the bylaw, council can move any amendments they wish.

Churches will be included in the bylaw. Otherwise, the town would be creating an exploitable loophole, as registering as a religious society is a straightforward process for groups, said Person.

Under clause 5.4, if a corporation is found guilty, then “every principal, director, manager, officer, employee or agent of the corporation who authorized, assented to, acquiesced or participated in” the offence would also be guilty. Under clause 5.5, if a partner in a partnership is found guilty under the bylaw, each partner “who authorized, assented to, acquiesced or participated” in the offence would also be guilty.

Councillor Denise Peterson asked whether members of pastoral groups or churches would hence fall under the bylaw, and should their church be found to be practicing conversion therapy, if they would be found to have acquiesced to the activity.

Person said this remains a gray area, because different churches and religious organizations have different levels of involvement for their congregations. In such a case, there would need to be faith in the bylaw officer or judge to adjudicate that area. “Trying to nail down specific hypotheticals like that in the bylaw would be very, very difficult, and that’s where we have to trust the other bodies of the judicial system to interpret that part,” he said.

During previous discussions, the necessity of enacting a municipal conversion therapy ban was questioned, given there is a proposed federal bill, C-6, that would ban the practice across Canada. But there has been no movement on this bill for over a year, and if an election were to be called, it would “die on the table,” said Person.

“There’s no timeline right now as to when it would be enacted,” he said. “There’s a much different pace between what a municipality can do and what the federal government can do.”