Justice Committee on March 18th, 2024

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

We've strayed considerably far away from his subamendment. I suggest that we need to deal with his subamendment. Then, if people wish to continue to ask questions about G-2, which don't appear to change their opinion of it, that's their prerogative.

I believe we still have the subamendment on the floor.

[The Chair, Liberal, Lena Metlege Diab]

That's correct. We can't deal with the amendment until we deal with the subamendment.

Can I ask that we vote on the subamendment?

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

May I speak to that, Madam Chair?

[The Chair, Liberal, Lena Metlege Diab]

Go ahead, Mr. Fortin.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you.

I fully understand that my colleague Mr. Garrison thinks that the debate is straying from the subamendment. However, the subamendment that I proposed is to ensure that the offence can only be committed if it's committed without reasonable cause. From there, I am interested in everything in the bill, because it's by understanding the scope of the bill that we can determine whether or not it's important to add a concept of reasonable cause.

As I was saying in my previous question, according to the text of the bill proposed in amendment G‑2, psychological safety will be taken into consideration. If it's very broad, as I suspect it is, it's all the more important to set limits on the offence by saying that it must have been committed without reasonable cause.

With all due respect to Mr. Garrison, who wants to see my subamendment defeated as soon as possible, I would like us to make sure that we fully understand the scope of this new bill and then determine whether it's prudent to add this guideline at the beginning, that is to say that an offence is committed only if it was committed without reasonable cause.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much, Mr. Fortin.

We'll now vote on the subamendment.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Could one of the witnesses answer my previous question before we vote, Madam Chair?

[The Chair, Liberal, Lena Metlege Diab]

Do you have another question?

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I asked it, but I didn't get an answer.

I asked a question about the scope of proposed subsection 264.01(5), which states: “For the purposes of this section, and for greater certainty, a person's safety includes their psychological safety.”

I won't repeat everything I said, but I wanted the witnesses from the Department of Justice to explain the scope of this paragraph and what we are specifically aiming for.

[The Chair, Liberal, Lena Metlege Diab]

Okay, thank you.

Ms. Levman, you can answer the question.

[Nathalie Levman]

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. He did not use violence against her, but she was severely economically disadvantaged, she had drug-related issues and she had no place to live. Because of that, she felt that even though he didn't use violence or threaten violence, she had to do what was being asked of her or else she would lose her home and her ability to feed herself.

Those are the types of scenarios that are captured by psychological safety. I would also point out that Scotland, New South Wales and Queensland all use the term “harm” and include psychological harm. This term has been used in Canadian criminal law jurisprudence, as well as in other jurisdictions whose models we are looking to when we craft these offences.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I would like to continue, Madam Chair. I don't want to waste the committee's time, but I want to make sure I understand. I promise to be a good boy.

Proposed paragraph 264.01(2)(c) talks about “engaging in any other conduct — including conduct listed in any of the following subparagraphs — if, in all the circumstances, the conduct could reasonably be expected to cause the intimate partner to believe that the intimate partner's safety…is threatened.” However, in proposed subsection 264.01(5), it says that it “a person's safety includes their psychological safety.”

I come back to the example I gave earlier, where the partner is anxious and worried. I'm not passing judgment. As I said, there are people very close to me, people I love and respect, who have an anxiety problem. I'm just trying to figure out how the provisions of the bill would apply. Let's take the hypothetical example where my spouse is experiencing anxiety, and I engage in one of the behaviours listed toward her, regardless of what it is, such as controlling the way she dresses or threatening to kill myself. Obviously, if she's feeling anxious, she's going to be all the more concerned about the behaviour.

Proposed paragraph 264.01(2)(c) says you have to look at the context. Aren't we broadening the number of cases where an offence is committed? We could say that the person engaged in such and such behaviour, for example that they threatened to commit suicide, but that, given the context, that is to say that their partner is experiencing anxiety, it was reasonable for the person to expect that it would psychologically affect their partner and that their psychological safety would be affected.

Neither you nor I are psychologists, but since no psychological experts are here to tell us about it, I'm putting the question to you. What do you think of those provisions? Aren't we greatly expanding the area in which a crime can be said to have been committed?

[The Chair, Liberal, Lena Metlege Diab]

Go ahead, Ms. Levman.

[Nathalie Levman]

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. However, in addition to that, you have to prove intent to cause the person to believe their safety is threatened or prove recklessness as to whether or not the conduct will cause that result. There are multiple layers of different items that need to be proven, including a pattern of conduct. It can be just once that you suggested something your partner, who suffers from anxiety, do or not do.

As I said before, we're dealing with ongoing conduct. No one incident in and of itself can ground a conviction for this offence, and everything has to be placed and considered in the context of the relationship as a whole. I believe that's the provision Mr. Garrison referred to earlier on, proposed subsection 264.01(3), which provides another layer of protection to ensure that cases where there are two equal partners helping each other with problems are not caught by this offence.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Ms. Levman.

I'll come back to what we were discussing. Earlier, Mr. Moore gave the example of a spouse telling his partner that they wouldn't leave the house until she had taken her medication. That would be considered an offence. I understand that there are different levels. You've explained it, and I fully agree.

Let's take the example where an individual reminds his spouse that she must take her medication, otherwise it's dangerous for her health and she could die. He tells her that he loves her, that he couldn't live without her and that, if she doesn't take her medication today, he's going to kill himself. In that case, he would be committing an offence against his spouse.

I know you're going to say that's a far‑fetched example, but I'm trying to understand.

In this example, the individual commits an offence against someone he knows to be fragile. His spouse is anxious and refuses to take her medication. Her spouse tells her that, if she doesn't take her medication, life will no longer have any meaning for him and he will kill himself. In that case, he is committing an offence. Once again, instead of sending him to the doctor, he is sent to prison.

Doesn't that seem a bit abusive to you?

[Nathalie Levman]

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.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Excuse me for interrupting, Ms. Levman, but time is ticking.

The reasonableness test you're talking about is whether it's reasonable to expect, given the context, that it would be possible for someone to lead their partner to believe that their safety is at stake. There's no doubt about it. If I tell my partner to take her medication or I'll kill myself, I say it because I think it will have an effect on her. So it's perfectly reasonable, and I can't deny it, for me to expect that, in this context, she'll think my safety is at risk.

However, the words that the subamendment seeks to add to the wording will make it possible to assess whether the action was taken with reasonable cause. This is a kind of safety net that we are setting up. In a case where, even if it was entirely reasonable to expect that an individual's behaviour would lead another person to believe that their safety was in danger, if the court finds that behaviour to be based on reasonable cause, shouldn't that person be exempted from an offence? That's another layer of proof, to use your expression.

[The Chair, Liberal, Lena Metlege Diab]

Go ahead, Ms. Levman.

[Nathalie Levman]

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.

[The Chair, Liberal, Lena Metlege Diab]

The summary and take-away for me is that we need to look at the entirety of the circumstances and not simply one of those sections. All sections that are brought forth here in this bill need to be taken together as a whole, whether by us in the committee when we're voting on it or when it goes to court in any of the circumstances.

What I will do right now is ask that we vote on the subamendment.

Shall the subamendment carry?

[Rob Moore, Conservative, Fundy Royal, NB]

It's the subamendment that—

[The Chair, Liberal, Lena Metlege Diab]

It's the one Mr. Fortin brought forth.

[Rob Moore, Conservative, Fundy Royal, NB]

Okay. The witnesses said that the subamendment would also apply to the criminal acts, which would be saying that if it's reasonable....

Can you read out the subamendment in context?

[The Chair, Liberal, Lena Metlege Diab]

I will ask those at the table to do that, because I think they wrote it.

Please go ahead.

[Dana Phillips]

Certainly.

It reads as follows:

264.01(1) Everyone commits an offence who, without reasonable cause, engages in a pattern of conduct referred to in subsection (2)