Justice committee  Proposed subsection 486.3(2) is a provision that prohibits the accused from cross-examining witnesses in cases involving certain offences. The existing list in the law as it is today includes criminal harassment and the three sexual assault offences. This is to try to minimize revictimization of the victims through court processes.

Justice committee  Again, that conduct couldn't be considered prohibited conduct unless it met the reasonableness test in the circumstances, so it may or may not be prohibited conduct.

Justice committee  The circumstances will include why the accused or the person is threatening suicide in that case. I would also underscore that the intent element has to be made out. Although I can't pronounce on what a court would find in a given case, you've described this example as an accused who is just worried for the health and well-being of their partner and isn't intending to cause any harm, be that physical or psychological.

Justice committee  I would point out that the term “safety” is already used in the criminal harassment and human trafficking offences and has been interpreted by appellate jurisprudence to include psychological safety. In that context, it has been interpreted to cover scenarios such as the 2020 Sinclair case at the Court of Appeal for Ontario, which involved a person who was trafficking a young woman.

Justice committee  What you're pointing to is potentially prohibited conduct that will have to be looked at through the reasonableness lens, which is objective but specific to the circumstances of the particular incident you've described. The anxiety of the person will have to be taken into account when determining whether or not that conduct could reasonably be expected to cause the person to believe their safety is threatened.

Justice committee  If we look at proposed subsection 264.01(2), which is the definition of a pattern of conduct, it says, “A pattern of conduct consists of any combination, or any repeated instances, of any of the following acts”, and then it lists the three categories of different conduct. Yes, it is possible to establish coercive control based on numerous incidents of conduct that are enumerated in proposed paragraph 264.01(2)(c), provided that they could reasonably be expected to cause the victim to believe their safety is threatened, which is consistent with what I understand to be the overall objective of a coercive control offence.

Justice committee  That in and of itself would not be enough to ground a conviction, no.

Justice committee  Like all the other examples of conduct in that list in the paragraphs, they are the types of conduct that, through Justice Canada's engagement process, we heard are usually engaged in by people who seek to coercively control their intimate partner. The offence is constructed carefully to avoid criminal conviction for the commission of any of that type of conduct.

Justice committee  Certainly, Chair. In the circumstance that Monsieur Fortin has described, you'd have a person who has threatened suicide or self-harm. Let's say a court has found that this act could reasonably be expected to cause the intimate partner to believe their safety is threatened. That could form part of the pattern of conduct that is the act element of this offence.

Justice committee  I'm not a prosecutor, but I do understand the components of this offence. What we heard during our engagement process was that this was one of many tactics that people who engage in coercive control of their intimate partners engage in. It would be part of a pattern of conduct, let's say, that may involve violent behaviour, sexually coercive behaviour and other forms of coercive conduct that are more subtle—surveilling, monitoring the victim, denying them ways to express themselves through their culture or religion, for example, and so on.

Justice committee  What we were trying to imply—and I'll state it directly now— is that if you were to do that, it would be inconsistent with what we've heard from stakeholders, including survivors, who wish to see their lived experiences in the legislation and feel very strongly that criminal justice practitioners need to know what types of conduct, more subtle forms in particular—not the violence and the sexually coercive stuff, but the more subtle forms—should be highlighted in the legislation.

Justice committee  Proposed paragraphs 264.01(1)(a) and 264.01(1)(b) articulate the mental element of the offence, so those are about what's going on in the accused's mind. If you look at Scotland's approach, you'll see that it's very similar. Scotland uses the concept of harm. We use the concept of safety in the Criminal Code.

Justice committee  Proposed paragraph 264.01(2)(c) is obviously creating a non-exhaustive list, and that's been informed by what we heard during the course of Justice Canada's September-October 2023 engagement, as well as much testimony before this committee. My colleague Ellen can provide the committee with some information on what stakeholders' concerns were and why they felt an illustrative, non-exhaustive list was critically important.

Justice committee  I would just note, from a technical perspective—

Justice committee  —that the way the amendments are drafted now imports the reasonable analysis to the third category of conduct only, the one that is largely non-criminal in nature. Putting “without reasonable cause” in the chapeau of proposed subsection 264.01(1) would allow that analysis to also apply to conduct that is criminal, as defined in proposed paragraphs 264.01(2)(a) and 264.01(2)(b) in G-2, so violent and sexually coercive conduct.