Evidence of meeting #25 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.
A recording is available from Parliament.
11:45 a.m.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
Actually, I was going to say that as well. I thought this amendment would give too much emphasis to the subjective opinion of the person instead of to the “reasonable person” test.
In a way it reminds me of the argument in relation to finally limiting the “evidence to the contrary” defence in impaired driving offences. That's my perspective, anyway. I think it's a much better balance than how it is currently.
11:45 a.m.
NDP
Jack Harris NDP St. John's East, NL
We still have “reasonable” there. We still have the “reasonable grounds”. We still have the subjective intention in the purpose of it, but if we're talking about the circumstances, the accused's understanding of those circumstances really has an awful lot to do with whether we have a full offence.
I go back to what Mr. Cotler and Madame Boivin raised. If we're dealing with what's been called battered wife syndrome, then the circumstances as perceived by the accused, the perception of the accused in these circumstances, is extremely important, because we have, normally, a pattern of behaviour that goes on and on. It's very difficult for a court or a jury to say that they are going to decide what the perception of this person was and put themselves in that person's shoes when they haven't actually been there.
I think the perception of the accused in that particular situation is rather important and ought to be given weight.
11:50 a.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you.
Mr. Harris's comments carry some weight, but they are really satisfied by proposed paragraph 34(1)(a). If we're talking about battered woman syndrome, proposed paragraph 34(1)(a) deals with the question of belief on reasonable grounds that force is being used against them. That does, in fact, combine an objective and a subjective test in a manner that addresses the issue of battered woman syndrome.
On the other hand, if one believes on reasonable grounds that force is being used against one, it doesn't necessarily mean that one can respond with any level of violence whatsoever. The level of response must still be reasonable in the circumstances, and that is the qualifier in proposed paragraph 34(1)(c).
Thank you.
11:50 a.m.
Conservative
11:50 a.m.
Conservative
Kyle Seeback Conservative Brampton West, ON
I would just pick up from where Mr. Woodworth was.
Proposed paragraph 34(2)(f) outlines exactly the circumstances: “the nature, duration and history of any relationship between the parties to the incident, including any prior use of threat of force...”. That's giving that test directly with respect to a woman who might be suffering from battered wife syndrome, so I don't think the amendment is helpful in clarifying anything for the court.
11:50 a.m.
Conservative
11:50 a.m.
NDP
Jack Harris NDP St. John's East, NL
Mr. Chairman, I'm caught up in this debate here, because we are talking about a particular type of concern in the criminal law that has been rather excruciating for courts and juries to deal with.
On the battered wife syndrome, yes, Mr. Seeback's right in saying that's a factor that's taken into account, but when we look at all of the factors as set out there, including “the nature, duration and history of the relationship”, and the concern that Mr. Seeback just pointed out.... There's also proposed paragraph 34(2)(g) on “the nature and proportionality of the...response”. We're back, then, to “Why didn't you just leave?” as the answer to what we're talking about here. That, I am convinced, will now be the new approach if someone is attacking a person's perception.
The reality is that we have these types of incidents because, in the perception of the circumstances of the individual who's subjected to constant and ongoing abuse over a long period of time and to the threats that were there, the perception of the person involved is key. It's key, and I think we need to ensure that it's there. I don't know if it's there.
Obviously the reasonable grounds are that force is being used against them or there's a threat. Yes, fine, there's a threat, and the act constitutes the purpose of defending oneself. That's not a problem, but then whether the act committed is reasonable in the circumstances is a purely objective test. It's purely objective.
Then they're saying, “Why didn't you leave?” Well, where do we get the defence? Where do we get any other defence, unless the perception of the individual involved is going to be key? I'm very concerned that if we don't pass this amendment, we'll be doing great damage to that particular type of offence.
11:50 a.m.
Conservative
Kerry-Lynne Findlay Conservative Delta—Richmond East, BC
I have a great deal of sympathy, particularly in the circumstances you're talking about, for women or spouses who find themselves in that situation. Having practised family law for 30 years, I dealt with those situations far too often, and I certainly would never jeopardize the ability of someone to raise the issue of self-defence in those very difficult circumstances, but I don't think your amendment is necessary to achieve that.
You do need the “reasonable” in all the circumstances. You do need both a subjective and an objective test. In the history of our jurisprudence in this area, I think that balance has been achieved. You don't want to tip it into a situation, in my view, in which an unreasonable perception—one that anyone would see as unreasonable—could be taken as the norm or the standard.
We need to allow the courts the discretion to look at all the circumstances. I have no doubt that the individual perceptions of a person in such a situation—more often a woman than a man—are taken into account and need to be.
11:55 a.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you.
My impression is that our existing law has allowed the courts to develop a defence that satisfies the situation of a person suffering from battered woman syndrome. If I'm wrong, I'm sure somebody can tell me, but I think we have such a defence in our law at this time, based on the perception of a woman who is suffering from that syndrome.
It was developed on the basis of our existing provisions, which do in fact talk about an individual using no more force than necessary and having a “reasonable apprehension of death or grievous bodily harm”, and so on and so forth. I don't think the current wording changes any of that.
Thank you.
11:55 a.m.
NDP
Françoise Boivin NDP Gatineau, QC
I will be brief.
I would be remiss if I did not try once again, especially today, International Women's Day. This evening, I will be speaking at a shelter for abused women.
It is easy for us to make these kinds of remarks. I am familiar with your career path, and I respect you very much. I know these are not easy cases. But, speaking seriously, this is the first opportunity we have as lawmakers to amend the Criminal Code in this regard; do we wish to make it clearer or to assert the importance of the case law? My colleagues, you know as well as I do— However, the Conservatives are usually the first ones to say that we should not leave the business of law-making up to the courts.
The fact that it has been interpreted that battered woman syndrome could be used by some courts does not mean that it will happen every time. Nowhere in clause 34(1), as written, or even in clause 34(2), does it suggest that this is in relation to the person themselves. Technically speaking, if I were hearing a case, as the judge I could decide to believe something “on reasonable grounds”. I could determine that the accused's perception was not reasonable. I could view that perception differently and disregard that line of thinking.
Let's consider the following passages: “(b) the act that constitutes the offence is committed for the purpose of defending [...] themselves”; “(c) the act committed is reasonable in the circumstances.” There again, the person's perception is not considered.
In clause 34(2), the bill goes on to say that “[i]n determining whether the act committed is reasonable in the circumstances, the court may consider [...] factors”. A list of criteria follows, and the person again does not come into play.
I am worried about what lawyers could use the amendments to mean; at the first opportunity, lawmakers codified battered woman syndrome to some degree, and yet it does not appear anywhere. What's worse, if they read our proceedings, they will find out that, on the contrary, the current government objected to the consideration of the person's perception as a.... The argument is that it is probably in there and the courts will probably use that criterion in administering the law.
If I were a judge, I would in no way feel obliged to apply this criterion. Either you believe in the criterion or you don't. That is what I think.
11:55 a.m.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
I think we've heard from everybody about six or eight times, but for the record, we're not objecting to its being there. In fact, I think it's already covered there. Clearly Ms. Boivin knows I have experience in criminal law with this particular section, and I think it's clearly there. We've heard from the officials that it's clearly there. We've heard from a number of lawyers on both sides, pro or not.
Why don't we get to the question, Mr. Chair?
Noon
Conservative
The Chair Conservative Dave MacKenzie
Seeing no further interventions, we can get to the question.
(Amendment negatived)
Noon
Conservative
The Chair Conservative Dave MacKenzie
On NDP-3, my note says that it should include line 24 in the French version.
Noon
NDP
Jack Harris NDP St. John's East, NL
There were suggestions from some of our witnesses that the open-ended “may consider” did not require the consideration of any of those factors. The suggestion is to replace line 21 with: court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
It is designed to make it a little more clear, but not limit it to the “shall consider” and not limit it to just those factors. It's an alternate wording that we consider more appropriate.
Noon
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
In light of the previous amendments, at least in your view, we need to put more emphasis on the perception of the accused. The law clearly requires a balance between perception and subjectivity. I think this amendment favours the individual's perception. Frankly, we have no objection to including it.
We're agreeable to that wording going in. It puts more focus on the perception of the accused, which I think is what you were seeking to do in previous amendments.
For that reason, we'll be supporting it. It strikes a balance.